Wrongful Convictions in Houston Caused by Bad Forensics

May 6, 2009

Now it’s the turn of Houston to develop a rash of wrongful convictions.  Gary Alvin Richard is expected to be released any day due to errors from the Houston crime lab.  He has spent 22 years in prison for a rape. The conviction for that rape was based upon forensic tests which now indicate he did not commit the crime.

Richard is the latest case to discredit the Houston Police Department crime lab.  Richard , if ultimately cleared of this crime, would be the fourth person whose conviction was overturned because of faulty forensics from the lab.

Both prosecutors and Richard’s defense lawyers agree that Richard should be freed on bail, but prosecutors are not convinced Richard is innocent of the crime. Prosecutors agree that the new lab results contradict the findings that were used to convict Richard at trial, but prosecutors maintain they do not know Richard is innocent of the rape.  Gary Alvin Richard’s lawyer, Bob Wicoff, claims the new tests prove his client’s innocence.

Other problems in the Houston lab have prompted a review of past cases.  A review was undertaken of more than 150 cases involving questionable blood-typing evidence.  The review showed in Richard’s case that crime lab analysts had conflicting results from their tests but reported only conclusions that pointed toward conviction.  Then they destroyed the physical evidence that was tested, thus eliminating any possibility of DNA testing.

While Richard was in prison, his mother, father and brother died.  His son, nine years old when he entered prison, is now 32 years old with two children.   But Richard himself is philosophical about it all.  Richard not surprisingly had prior convictions, convictions for drug dealing and theft. He said it was “God’s will that he ended up in prison.”  “I probably would have ended up back in prison or dead,” Richard also said in an interview from jail.  “I have gotten a hold of my life. I am not angry.”

Without waiting to pour over any other evidence, without a moments thought about any scintilla of evidence they might use to convict Richard in a retrial, the prosecution ought to dismiss all charges against Richard just for his attitude.

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Cheating Prosecutors May Face Rare Penalties As Conviction is Reversed and Justice Department to be Investigated

April 27, 2009

It is not unheard of for the prosecution to cheat, hide evidence, manufacture evidence and generally manipulate the justice system to achieve injustice.  But in the case of former United States Senator Ted Stevens Republican-Alaska, not only was the ill-gotten criminal conviction dismissed but the Judge has vowed to investigate the Justice Department.  This is rare on both counts, especially for a Judge to pursue sanctions beyond the routine tongue-lashing.

“In nearly 25 years on the bench, I’ve never seen anything approaching the mishandling and misconduct that I’ve seen in this case,” United States District Judge Emmet Sullivan said, as he spoke for 14 minutes with thinly-veiled anger.  The trial of the former Alaska Senator was held in the District of Columbia, where Judge Sullivan sits.   Judge Sullivan appointed a special prosecutor to investigate the Justice Department lawyers who prosecuted Senator Stevens.  They repeatedly withheld evidence from Senator Stevens’ lawyers during the trial.  The trial resulted in Stevens’ conviction last October for lying on federal disclosure forms about gifts and home renovations he received from wealthy friends.  The rules of federal procedure provide for the appointment of a special prosecutor for contempt investigations, but is rarely done.

Judge Sullivan, appointed Henry F. Scheulke III of Washington, D.C., to investigate contempt and obstruction by the Justice Department lawyers.  Mr. Scheulke is a former prosecutor and experienced defense attorney who oversaw a Senate Ethics Committee investigation and influence-peddling allegations in 1989 against former New York Senator Alfonse D’ Amato.  Scheulke will investigate six career lawyers with the Justice Department, including the William Welch, chief, and Brenda Morris, deputy chief of the Public Integrity Section, an elite unit that deals with official corruption.  The other lawyers to be investigated for possible criminal charges are Joseph W. Bottini, James A. Goeke, Nicholas A. Marsh and Edward P. Sullivan (no relation to Judge Sullivan or to Brendan Sullivan, attorney for Senator Stevens).

The judge said the matter was too serious to be left to an internal investigation by the Justice Department, which had dragged its feet, he said, before looking into the misconduct.  He criticized Attorney General Michael Mukasey for not responding to complaints.  The said reaction of the Justice Department was “shocking but not surprising.”  Of course, this is the usual result of charges of misconduct by the prosecution: File 13.  Nothing ever happens, the prosecutors know nothing ever happens, so what disincentive is there not to do again.  It is similar to police who manipulate evidence: they only rarely suffer any penalties for their constant corruption of the justice system.

But Judge Sullivan did not let die the wrongdoing of these prosecutors.  He called on Attorney General Eric Holder, who dismissed Senator Stevens’ conviction on April 1st in recognition of his department’s ill deeds, to retrain all prosecutors in the Justice Department.

Some observers have remarked that, notwithstanding the wrongdoing of the Justice lawyers, there was a healthy amount of evidence incriminating Senator Stevens.  These observers suggest he has not been convicted, but he really doesn’t look innocent of wrongdoing.  Senator Stevens was defeated in his Senate reelection campaign days after the guilty jury verdict in this trial.

Regardless of the guilt or innocence of this Senator or a thousand other accused citizens, if the United States Justice Department, and its elite Public Integrity Section no less, cannot carry out its work in an ethical manner, our system of justice is corrupt.

During the five-week trial, the prosecution lawyers were repeatedly forced to admit they had not turned over materials to the defense.  Judge Sullivan even said then,“How does anyone have any confidence that the Public Integrity Section has any integrity?”  But the judge overruled defense objections, as always happens, and allowed the prosecution’s tainted case to go the jury.  Not surprisingly, the jury found the Senator guilty.  However, the surprise came when Judge Sullivan then threw out the jury verdict.  The still-further surprise came when the Judge gave notice that the wrong-doing prosecutors would not just go home to cheat again in their next trial.  This time they might have to pay some penalty for wrongdoing—for a change and for the better.  It’s about time.


Criminal Legal Cases and Other Categories as Reported by Judicial business of the United States for 2008

April 9, 2009

The Statistics Division, Office of Judges Programs, Administrative Office of the U.S. Courts has published its annual report.  The report is 431 pages and covers all U.S. Courts of Appeals, U.S. District Courts, and U.S. Bankruptcy Courts.

Filings of cases in the U.S. Courts of Appeals, were up 4.6 %, in the U.S. District Courts up 3.8 % for civil cases and 3.6% for criminal cases, and in the U.S. Bankruptcy Courts up 30.2% from the year 2007.  Terminated cases in the three categories were similar to the increases in filings, except that they were 12.8 %.in Bankruptcy courts.

The case load for U.S. Courts of Appeals remained approximately at its same level since 2004.  Cases handled per panel were 1,068, almost the same as in 2007, and very close to the same level as in the years back to 2004.  Courts of Appeals have about 53,071 cases pending, about the same numbers as past years, and this despite terminating 59,096 cases in 2008, a fairly average number.

These appeals came from the District Courts in criminal cases (13,667 cases, up 3.8 %) and civil (31,454, up 3.8 %, which includes prisoner petitions of 16,853, up 8.9%), Bankruptcy Courts (773, down 8.5%), and Administrative Agencies (11,583 cases, up 11.6 %)

The U.S. District Courts carried 394 cases per judgeship (cases per authorized judge), a 3.7% increase over 2007.  The District Courts handled 267,257 cases, which included 54,786 prisoner petitions and 68,171 personal injury cases. The District Courts terminated 234,571 for the year 2008 (a decrease of 2.1%) and left pending 298,129 cases (a 12.3 % increase over 2007).

These cases in District Court are further broken down into those with the United States as plaintiff (9,649 cases, a 0.9% over 2007), those with the United States as defendant (34,515 cases, down 3.9% from 2007), those with a federal question (134,582, down 3.5%), and diversity of citizenship (88,457, up 21.8 %).

Cases with the United States as plaintiff include immigration cases, and that category increased in 2008 by 27. % to 21,313 cases with the a 26% increase in the number of immigrant defendants to 22,658.  The charge of improper reentry counted for 73 percent of all immigration cases and 69% of all immigrant defendants.  Seventy-two percent of all immigration cases were filed in the five southwestern border federal court districts: the District of Arizona, Southern District of California, District of New Mexico, Southern District of Texas and Western District of Texas.

Overall, therefore, it is evident that while significant increases of litigation for bankruptcies and immigration occurred in 2008, other areas such as criminal cases had only a slight increase. Consequently, the constant indications in the news media that we’re experiencing a skyrocketing increase in criminal cases is not founded in fact.


Oklahoma Court of Criminal Appeals Judge De-frocked, What Goes Around Comes Around

February 20, 2009

When a jury trial results in a conviction, or for any reason one of the parties in a criminal case wants to seek reversal of the trial judge’s decision on a matter, the issue must be taken to and decided by the Oklahoma Court of Criminal Appeals. That is the highest court, the court of last resort, for criminal matters in Oklahoma. Oklahoma is one of only two states in which appellate criminal matters are decided by court dedicated to criminal matters. Texas is the other state. In all other states, all issues of last resort are heard by the same court as the court that decides civil matters, usually called the state supreme court.

The five members of the Oklahoma Court of Criminal Appeals are appointed by the governor. Every four years of their term, their names appear on the retention ballot for decision by the voters. The voters of Oklahoma have never failed to retain a judge on the retention ballot.

For all these reasons, Judge Steve Lile had a job that was secure. He was one of the five judges who sat on the Court of Criminal Appeals. He could rule against every defense lawyer who brought a legal issue to the Court of Criminal Appeals for his decision. He could overrule every motion any lawyer urged on his defendant client’s behalf. He could rubber stamp practically every conviction brought to his court for review, and find no legal merit in any reason to overturn a conviction. And he did.

But then it was his turn.

Steve Lile traveled to attend project conferences, meetings of the Regimented Inmate Discipline (RID) Program offered by the Department of Corrections. He routinely applied for mileage reimbursement for that travel and was paid. But there were no meetings on those dates. Lile was filing false claims to the state so he could visit his illegitimate son, Loran Michael Wilson, in prison. Lile made almost weekly trips between June and October, 2004.

Lile had gotten caught intervening on behalf of his then-loverr, Dawn Lukasik, to get out of drug charges in Lawton. The Lawton District Attorney there dismissed the drug charges for the flimsiest of reasons, obviously as a favor to Lile, and from that incident, the travel claims came to light. Dawn Lukasik is the mother of Loran Michael Wilson, and Lile is his father, Lile later said. Lile had not known Wilson was his son until recently.

When Lile’s behavior came to light a few years ago, Lile resigned rather than fight the efforts of the Attorney General to remove him. Since then, Lile has been a private lawyer, a lawyer representing people accused of crimes, the kind of lawyer for whom Lile had such contempt for so many years.

Now the matter of Lile’s license to practice law has been heard by the Oklahoma Supreme Court. It was an ethical violation for Lile to file those false travel claims, even if he has paid back $1523.64 for false travel claims and paid back $1560.40 for false claims Lukasik made for her personal use under the pretense of using the purchases to remodel Lile’s state judge’s office.

Lile told the Supreme Court that he was regretful and remorseful for his misconduct. He was just not thinking straight, he said. Giving the limpest of possible excuses, Lile urged the Supreme Court to forgive his misconduct, that his conduct merited only a private reprimand.

The Supreme Court found no merit in Lile’s excuses, denials, and minimizations. Lile had sought and accepted an office of the highest responsibility from the sovereign state of Oklahoma. He had taken an oath to follow the law. He should have known better. He betrayed all of these. He does not deserve to practice law in Oklahoma. So decided the Supreme Court.

The Supreme Court listened to and considered all of Steve Lile’s arguments. The Court ruled against him, but he received full consideration of his position by the Court. That is all defense lawyers wanted when they appeared before Lile when he was sitting on the bench.


Lawyer Client Relationship Remains Confidential Even After Death

June 4, 2008

Twenty-two years ago, a client named Jerry Cushwell told his lawyer that Cushwell had acted alone in committing a double murder. Cushwell pleaded guilty to the murders, but prosecutors also convicted another man, Lee Wayne Hunt, of participating in the murder, and he was serving a life sentence for that murder.

Jerry Cushwell committed suicide in 2002, but he had told the truth to his lawyer about having acted alone in committing the double murder. Still Lee Wayne Hunt continued to serve his life sentence. Finally, Jerry Cushwell’s lawyer, Staple Hughes of North Carolina decided he should speak out to save Hunt from the wrongful sentence. The problem was that a lawyer cannot reveal the secrets told him by a client.

Isn’t the lawyer, Staple Hughes, released from the confidentiality of Jerry Cushwell’s secret in order to save an innocent man? Ordinarily not. Not even if Cushwell died six years ago and the secret is that of a dead man? No.

Cushwell’s lawyer was threatened with discipline from the North Carolina Bar Association when he tried to testify to Cushwell’s secret. The obligation to keep a client’s secrets is so important that it survives death and may not be violated even to cure a grave injustice. Experts believe a lawyer’s duty to keep clients’ confidences is the rock upon which the justice system is built, and making exceptions erodes the trust between lawyers and clients.

Legal ethics rules vary from state to state, but many states permit disclosure of a confidence to prevent certain death or substantial bodily harm. But stopping an execution is not the same as freeing an innocent prisoner. Only Massachusetts allows lawyers to reveal secrets “to prevent the wrongful execution or incarceration of another.” And most courts say the obligation for confidentiality continues even beyond the death of the client.

That was Staple Hughes’ problem in North Carolina. This situation was unlike the Illinois case that freed Alton Logan after serving 26 years of a life sentence for murder. In that case, the lawyers who spoke up said their client had given them permission to speak out after the client died. They did speak out, and Alton Logan has been released on bond and given a new trial.

The North Carolina Bar Association dismissed the complaint against Staple Hughes for his violating the confidence of Jerry Cushwell. However, his testimony went nowhere. The testimony of Staple Hughes to save Lee Wayne Hunt from prison was excluded as hearsay evidence. Mr. Hunt’s life sentence remains in place. The North Carolina Supreme Court refused to hear an appeal of the matter.

Meanwhile the rule protecting the confidentiality of a client’s confidences remains strong. This example certainly reveals how important the court system believes trust is between a client and his attorney. Because this attorney client relationship is so protected it’s always best to be truthful with your lawyer so he’ll be prepared for what the other side will throw at you and he’ll be able to give you the best defense.

Finding the right attorney you trust and are comfortable with is critical,  as you will be sharing extremely personal and sensitive information. That’s why you will want to go to my website at www.netlegalhelp.com where I share with you how to find the right lawyer for your Oklahoma criminal charge.