Mean Justice (84 page)

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

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

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

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

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

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

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

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

1999

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

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

Shareef Cousin, sentenced to death at age sixteen in Louisiana, is exonerated of the murder charge against him because prosecutors used improper evidence to win his conviction. Prosecutors subsequently dropped the case against Cousin, whose basketball coach had provided an alibi for the time of the murder.

Twenty-six criminal cases against black and Hispanic motorists, all investigated by the same two New Jersey state troopers, grind to a halt when a state probe produces evidence that the troopers had planted and falsified evidence in a number of the cases.

The Florida Supreme Court issues an unprecedented warning to state prosecutors, calling for a halt to the prosecutorial misconduct it was seeing with “unacceptable frequency” in capital cases. If prosecutors fail to observe ethical and legal restraints in the future, despite repeated admonitions from the high court, new laws might have to be carved out by the court to punish prosecutors in future cases, the state justices warned. In freeing a Tampa man, Walter Ruiz, from a death sentence for a 1995 murder, the high court wrote that his trial was “permeated
by egregious and inexcusable prosecutorial misconduct.” The court listed six other cases it was forced to reverse in recent years because of the misbehavior of prosecutors.

New Orleans District Attorney Harry Connick calls for a grand jury investigation of his own office after revelations that critical evidence of innocence involving a man scheduled to be executed in two weeks had been hidden by his own deputy prosecutors for years. John Thompson had been convicted in two separate trials, first for armed robbery, then for murder. The armed robbery conviction had been used by prosecutors to win the death penalty in the murder case. Newly disclosed blood evidence—known to prosecutors for fourteen years—points to a different suspect in the armed robbery.

In New York, John Duval is released from prison after twenty-six years for an armed robbery and murder in which a key eyewitness—kept jailed for seven months until he testified against Duval—had originally said he never saw Duval at the crime scene. The police report detailing the witness’s original story was kept hidden from defense, judge and jury.

Two days after John Duval was freed, two men in Oklahoma, Dennis Fritz and Ronald Williamson, are released and exonerated after twelve years for a rape and murder case that had devastated their small town of Ada, Oklahoma, in 1982. The case had gone unsolved for five years before prosecutors used bogus scientific analyses to link the two men—a junior high-school science teacher and a minor-league ball player—to hair samples found at the crime scene and on the body of the twenty-one-year-old murder victim. The men were also convicted with the help of a jailhouse informant, who received leniency in exchange for his testimony against the two men. In a bizarre twist, DNA testing done this year not only exonerated Fritz and Williamson but implicated the prosecution informant as the actual rapist and murderer. The testing was done at the urging of lawyers representing Fritz, who was serving a life sentence. Testing was opposed by prosecutors as a waste of time. Williamson got lucky—his appeals had been exhausted and, at
one point, he was five days away from execution. His sister had been called and told to make funeral arrangements.

On April 19, the “Citizen’s Protection Act” becomes law—legislation cosponsored by a conservative Republican congressman concerned about prosecutorial misconduct and wrongful convictions at the federal level. The act, vigorously opposed by the U.S. Justice Department, requires federal prosecutors to follow the local ethical rules in the states in which they practice—just as every other lawyer must. Justice Department officials and their legislative allies—including the powerful Judiciary Committee chairman, Senator Orrin Hatch of Utah—fought the legislation, saying the seemingly commonsense notion that prosecutors, like other lawyers, must adhere to ethical regulations, would hamstring the war on crime. They succeeded in killing many of the bill’s original provisions, but its core requirement on ethics passed as a rider to a budget bill. An unprecedented attempt to reign in prosecutorial misconduct, the law nevertheless had limited impact in that it affects only federal prosecutors. The majority of criminal prosecutions—and prosecutorial misconduct—occurs at the state and local level, where the Citizen Protection Act has no authority.