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state attorney for the Ninth Judicial Circuit of
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the Trayvon Martin case 2012
Ms. Corey, 57
in the case
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charges > three counts of aggravated murder,
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Grand jury > Charges /
Colorado Suspect Faces 142 Counts
in Shooting Rampage
July 30, 2012
The New York Times
By JACK HEALY
and DAN FROSCH
CENTENNIAL, Colo. — Colorado prosecutors formally charged
James Eagan Holmes on Monday with 142 criminal counts, including first-degree
murder, attempted murder and explosives charges in the shooting rampage at a
crowded Aurora, Colo., movie theater this month.
Mr. Holmes, making his second court appearance, was formally charged with 24
counts of murder and 116 counts of attempted murder — two for each of the 12
people killed and 58 wounded. For each victim, Mr. Holmes was charged once for
showing deliberation, and once for showing extreme indifference to human life.
He was also charged with illegally possessing explosives, a nod to the hive of
explosive booby traps that police found inside Mr. Holmes’s apartment after he
was arrested outside the movie theater.
During the hearing, which lasted less than one hour, Mr. Holmes, 24, sat
impassively, much as he had during his first court appearance last week.
He stared at the ceiling lights and at the floor and showed no reaction as the
charges were being read, even when the judge told him that he could face the
His hair, dyed orange, was slicked down to his head. He did not enter a plea.
According to court documents filed by his lawyers last week, Mr. Holmes, 24, was
being treated by Dr. Lynne Fenton, a psychiatrist, who is also the medical
director of student mental health services at the University of Colorado
Denver’s Anschutz Medical Campus, where Mr. Holmes had been a student.
The court papers did not discuss the nature of the treatments, but Dr. Fenton’s
research interests include psychotherapy and the neurobiology of schizophrenia.
According to the court filings, Mr. Holmes had sent a package to Dr. Fenton
before the shooting, but the doctor never received it. The package was seized by
the authorities from a university mail room after the shooting and the police
have not said what the package contained.
On July 20, the authorities say, Mr. Holmes — a former honors student who was in
the process of withdrawing as a neurosciences graduate student at the Anschutz
Medical Campus — entered a sold-out theater at the Century 16 movie multiplex
through an exit door, minutes after “The Dark Knight Rises” had started playing.
Armed with an assault rifle, a 12-gauge shotgun, and a .40-caliber handgun — and
cloaked in full body armor and gas mask — Mr. Holmes set off two smoke devices
before he began roaming the aisles of the theater, randomly shooting at an
audience full of teenagers and families who had come with young children,
according to the authorities.
The police say Mr. Holmes fired first from the Remington shotgun, before
shooting people with the Smith & Wesson M&P15 semiautomatic rifle until its
100-round barrel magazine jammed. He concluded the rampage with the .40-caliber
Glock semiautomatic pistol. A second .40-caliber Glock handgun was found in his
Among the 12 dead was a 6-year-old child. Fifty-eight other people were wounded.
Ashley Moser, the mother of the 6-year-old, Veronica Moser-Sullivan, had a
miscarriage last week, her family announced on Sunday. (Colorado law does not
treat unborn children as murder victims.)
Moments after the attack, Mr. Holmes was arrested near his car, which he had
parked outside the theater’s emergency exit.
Mr. Holmes had also booby trapped his Aurora apartment with explosives fashioned
to tear through the body of anyone who opened the front door, the authorities
said, and which were powerful enough to bring down the entire building. He had
left the door unlocked and music blaring, in an apparent effort to lure someone
inside, the police said.
After the evacuation of five neighborhood buildings and more than a day of
painstaking work by bomb experts, the devices were safely deactivated.
The police have said they believe that Mr. Holmes began plotting his attack at
least four months before, when he began legally acquiring guns and ammunition.
Over the Internet, he was able to purchase 3,000 rounds of handgun ammunition,
3,000 rounds for the semiautomatic rifle, and 350 shells for a 12-guage shotgun.
On July 23, during Mr. Holmes’s initial court appearance, he seemed dazed,
staring down at the courtroom floor, his eyes sometimes opening wide, sometimes
nearly closed. After the hearing, he was returned to the Arapahoe County Jail,
where he is being held in isolation.
Don Lader, 27, who was in the movie theater with his wife on the night of the
shooting, sitting about 15 yards from the exit when Mr. Holmes strode through,
was among those at the courthouse Monday morning to watch the hearing. He said
he and his wife had escaped with minor scrapes and bruises.
“We’re here, we feel, to represent strength that the community has,” Mr. Lader
said. “We’re here to represent a lack of fear of what this individual tried to
cause. The man was a coward. We’re here to show we have strength and now we’re
willing to fight back.”
When asked prior to the hearing what it would be like to be in the same
courtroom as Mr. Holmes, he said:
“I’ve seen him once before. I can see him again.”
Timothy Williams contributed from New York.
Colorado Suspect Faces 142 Counts in
Minimum Term of 25 Years
The New York Times
By JOHN SCHWARTZ
to charge George Zimmerman with second-degree murder in the killing of Trayvon
Martin, Angela B. Corey, the special prosecutor appointed to the case in
Florida, selected the toughest possible charge involving a killing short of
first-degree murder, which requires a finding of premeditation and carries the
death penalty as a possible punishment.
Under second-degree murder, the jury must find that a death was caused by a
criminal act “demonstrating a depraved mind without regard for human life,” said
Eric Abrahamsen, a criminal defense lawyer in Tallahassee, reading from the
state’s standard jury instructions. The maximum sentence for second-degree
murder is life in prison; the minimum penalty under these charges is 25 years.
Dan Markel, a law professor at Florida State University, said he was “very
surprised” by the severity of the charges “in light of the evidence that seems
to have been brought to the attention of the public so far.” Many legal experts
had predicted that Mr. Zimmerman would be charged with manslaughter.
The charge of second-degree murder also means that Mr. Zimmerman will not be
entitled to be released on bail before his trial. Instead, his lawyer will be
able to ask for what Florida calls an Arthur hearing, which can take place weeks
after the arrest, to determine whether he should be allowed to post bond.
Jeff Weiner, a former president of the National Association of Criminal Defense
Lawyers who practices in Miami, said an Arthur hearing “is not a mini-trial, but
it’s a very good preview of the evidence that the state has at this point.”
Mr. Weiner suggested that the prosecutor might have “overcharged” to retain the
option, should she feel a murder conviction is slipping away, of asking the
judge to instruct the jury to consider lesser offenses, like manslaughter. It is
also possible, he said, that she might be trying to coax Mr. Zimmerman to the
negotiating table to plead guilty to such a lesser charge. But, he added, it is
impossible to say whether it is overly tough, since evidence has not yet been
The case will almost certainly include a pretrial hearing to determine whether
the state’s Stand Your Ground law, which grants broad protections to people who
claim to have killed in self-defense, applies; if the judge finds that Mr.
Zimmerman acted appropriately, the case will end there. If the judge decides
that the protections of the law do not apply, the case will go forward.
At trial, however, the question of self-defense can be brought up again and
possibly will, said Robert Weisberg, a criminal law expert at Stanford Law
School. That could lead to a fallback position for the jury — if allowed by the
judge — of a lesser verdict of manslaughter should the jury decide that Mr.
Zimmerman sincerely but unreasonably believed that he was appropriately using
lethal force to defend himself, which is known as “imperfect self-defense.”
Either side in the case could request that the judge instruct the jury to
consider that middle ground, and if the evidence supports such a finding the
judge will in almost all cases comply, Professor Weisberg said. A confident
prosecutor may not want to risk missing the toughest conviction, however, and a
confident defense lawyer may not want to risk giving the jurors a lesser charge
that they can choose instead of acquittal. And so, he said, the question may
come down to, “Who’s feeling lucky?”
Severe Charge, With a Minimum Term of 25 Years, NYT, 11.4.2012,
of 2nd-Degree Murder
Shooting of Martin
The New York Times
By LIZETTE ALVAREZ
and MICHAEL COOPER
JACKSONVILLE, Fla. — More than six weeks after he shot and killed Trayvon
Martin, an unarmed 17-year-old with no criminal record, George Zimmerman, the
neighborhood watch coordinator at a small gated community in Sanford, Fla., was
charged by a special prosecutor on Wednesday evening with second-degree murder
and taken into custody.
The charges, which Mr. Martin’s family praised but called overdue, opened a new
chapter in a case that set off a searing national discussion of racial
profiling, Florida’s expansive self-defense law and the fairness of the criminal
The charges against Mr. Zimmerman were announced by Angela B. Corey, the state
attorney for the Jacksonville area, who was appointed as a special prosecutor in
the case after the local state attorney stepped aside in the wake of criticism
that the case had been moving too slowly. Ms. Corey took pains to praise the
local law enforcement officials at a news conference in Jacksonville, and
pledged to pursue justice for the Martin family.
Asked about the racial overtones of the case — Mr. Martin, who was black, was
shot and killed by Mr. Zimmerman, a Hispanic man who was not immediately
arrested by the local police — Ms. Corey said that law enforcement officials
were committed to justice for all, regardless of race, gender or background.
“We only know one category as prosecutors, and that’s a ‘V,’ ” Ms. Corey said.
“It’s not a ‘B,’ it’s not a ‘W,’ it’s not an ‘H.’ It’s ‘V,’ for victim. That’s
who we work tirelessly for. And that’s all we know, is justice for our victims.”
If convicted of second-degree murder, Mr. Zimmerman, 28, could face life in
prison. It is the toughest charge he could have faced. First-degree murder would
have required a finding of premeditation and a grand jury review, which Ms.
Corey decided against this week.
Mr. Martin’s parents, Sybrina Fulton and Tracy Martin, praised the decision to
arrest and charge Mr. Zimmerman at an emotional news conference in Washington,
where they had been meeting with their lawyers and supporters. “We simply wanted
an arrest,” Ms. Fulton said. “We wanted nothing more and nothing less, we just
wanted an arrest. And we got it. And I say, ‘Thank you, thank you, Lord, thank
you, Jesus.’ ”
Mr. Zimmerman arrived at the Seminole County Jail around 8:25 p.m. and stepped
out of a black S.U.V. in the custody of law enforcement agents.
The killing of Trayvon Martin incited outrage and protest marches across the
country. He was shot on the evening of Feb. 26 as he returned from buying
Skittles and iced tea at a 7-Eleven, bound for the home in a gated community in
Sanford, a small city just north of Orlando, where he and his father were
Mr. Zimmerman, the founder of the local neighborhood watch, called 911 that
evening to report that Mr. Martin looked like “a real suspicious guy.” Some
questioned whether Mr. Martin attracted Mr. Zimmerman’s attention simply because
he was black. Others were outraged by the slow reaction of the local police and
prosecutors, who did not immediately arrest and charge Mr. Zimmerman, saying
that Florida’s self-defense law could make it difficult to prove a criminal case
President Obama weighed in on the case at one point, saying, “If I had a son,
he’d look like Trayvon.” After television commentators suggested that Mr. Martin
might have looked suspicious because he was wearing a hooded sweatshirt, people
around the country began donning them in solidarity. LeBron James and other
members of the Miami Heat basketball team posed in them for a photograph they
posted on Twitter. Representative Bobby L. Rush, Democrat of Illinois, even wore
one on the floor of the House, saying “Just because someone wears a hoodie does
not make them a hoodlum.”
The case drew attention to Florida’s Stand Your Ground Law, which was enacted
seven years ago after lobbying by the National Rifle Association, over the
objections of many law enforcement officials. The law gives the benefit of the
doubt to people who claim self-defense, even if they are not in their homes; it
says that people who feel that they are in danger do not need to retreat, even
if it would seem reasonable to do so.
In this case, Mr. Zimmerman, who had founded a neighborhood watch over the
summer after a string of burglaries in the area, saw Mr. Martin, began following
him, and called 911, telling the dispatcher that he appeared “suspicious.”
The dispatcher asked if Mr. Zimmerman was following him. “Yeah,” Mr. Zimmerman
“O.K.., we don’t need you to do that,” the dispatcher said. Mr. Zimmerman said:
The case will probably hinge on what happened next.
A lawyer for Mr. Martin’s parents, Benjamin Crump, has said that Mr. Martin was
speaking on his cellphone at the time with his girlfriend, and told her that he
was being followed. Mr. Crump said that the girl heard him being asked what he
was doing before the line went dead.
Mr. Zimmerman’s father, Robert Zimmerman, gave a different account: he has said
that his son had lost sight of Mr. Martin, who then appeared from behind and
Witnesses then told 911 that they saw two men fighting. Then Mr. Martin was shot
in the chest and killed.
The Sanford police came under heavy criticism when they did not arrest Mr.
Zimmerman, saying that they had no evidence to dispute his claim of
self-defense. The police chief, Bill Lee, eventually stepped down from his post.
The state appointed a special prosecutor. And the Justice Department announced
that it would open a federal civil rights investigation.
Ms. Corey, the special state prosecutor who announced the charges, said that if
Mr. Zimmerman’s lawyers invoke the state’s Stand Your Ground law in his defense,
and prosecutors do not believe the shooting was justified, they will challenge
“This case is just like many of the shooting deaths we’ve had in our circuit,”
she said. “If Stand Your Ground becomes an issue, we fight it if we believe it’s
the right thing to do.”
Mr. Zimmerman changed his lawyers this week, and his old legal team held an odd
news conference on Tuesday to say that they were withdrawing from the case and
had not heard from him since the weekend. Mr. Zimmerman’s new lawyer, Mark M.
O’Mara, a well-known criminal lawyer, said in a brief interview Wednesday night
that his client would plead not guilty at a hearing on Thursday.
Mr. O’Mara also said that he hoped the judge would take up a bond motion at the
hearing, but that he expected the judge would wait for a more extensive hearing
in the near future.
One of Mr. Zimmerman’s former lawyers, Craig A. Sonner, said after the murder
charge was announced that he would use the Stand Your Ground law as a defense if
he were still representing Mr. Zimmerman.
Mr. Sonner said that although he had not seen evidence in the case first hand,
he believed that “when all the evidence arrives in its totality, and all the
circumstances are viewed in their totality, everything will show, I believe,
that George Zimmerman was acting in self defense.”
As she announced the charge, Ms. Corey, the prosecutor, praised Mr. Martin’s
“sweet parents.” But she stressed that the decision to charge was made based on
the law, not on pressure. “Let me emphasize that we do not prosecute by public
pressure or by petition,” she said. “We prosecute based on the facts of any
given case, as well as the laws of the State of Florida.”
Alvarez reported from Jacksonville,
and Michael Cooper from New York.
Kovaleski contributed reporting from Sanford,
Michael S. Schmidt from
and Timothy Williams from New York.
Styczynski contributed research.
Prosecutor Files Charge of 2nd-Degree Murder in Shooting of Martin,
Choice Looms for Prosecutor
The New York Times
By JOHN SCHWARTZ
late Tuesday that she would release new information within 72 hours, Angela B.
Corey, the Florida state attorney in the Trayvon Martin case, faces one of the
toughest tests in the art of prosecution.
Unless her investigation of the fatal shooting of Mr. Martin by a neighborhood
watch coordinator, George Zimmerman, uncovers a great deal more solid evidence
than has been disclosed, the case will remain a narrative Rorschach that each
side will interpret as it wishes. Finding the criminal charges that can be
proved beyond a reasonable doubt, or deciding that Mr. Zimmerman’s account of
defending himself in the face of deadly force places him within the protections
of Florida’s Stand Your Ground law, Ms. Corey has undertaken an exercise that is
unlikely to satisfy everyone.
“Factually, we know there was a killing,” said David LaBahn, the president of
the Association of Prosecuting Attorneys. “Now the question is: Is it a murder,
or a manslaughter, or a justifiable homicide? Is it an involuntary manslaughter?
Is it an assault?”
Douglas A. Berman, a professor at Ohio State University’s Moritz College of Law,
said, “It’s inevitable whatever she chooses to do will be subject to questioning
and potential attack if the choices don’t fit a particular group’s narrative
vision of what took place.”
That narrative took a bizarre turn on Tuesday when two lawyers for Mr. Zimmerman
held a news conference in Sanford, Fla., to say they had withdrawn from the case
and had not heard from him since the weekend. The lawyers, Craig Sonner and Hal
Uhrig, said that against their advice, their client had reached out to Ms. Corey
for a meeting. The special prosecutor had declined to speak with Mr. Zimmerman
without his lawyers present. They said Mr. Zimmerman had also contacted the Fox
News host Sean Hannity, but would not reveal the substance of the call.
Mr. Zimmerman has also started a Web site, therealgeorgezimmerman.com, asking
for funds to deal with the “life altering event” that, he wrote, forced him “to
leave my home, my school, my employer, my family and ultimately, my entire
life.” His lawyers said they had been unaware of Mr. Zimmerman’s plans to create
In an interview, Mr. Sonner said, “I am concerned about George,” adding, “He is
not acting in his best interest right now.”
Mr. Sonner believes that his former client, who has also not returned calls from
his father, is no longer in Florida, he said, adding that he was ready to resume
his representation if Mr. Zimmerman explained his actions since the weekend and
said, “I was wrong.”
Mr. Sonner stressed, “I stand by everything I have said about George and the
case: that he acted in self-defense and that he is not a racist.”
The Martin family’s lawyer, Benjamin Crump, said it was worried that Mr.
Zimmerman had disappeared and considered him a flight risk. “The family has some
serious concerns about the fact that the killer of their son, Trayvon Martin, is
unaccounted for,” Mr. Crump said. “Nobody knows where he’s at.”
Mr. Zimmerman followed Mr. Martin on the evening of Feb. 26 as Mr. Martin walked
back to the home where he was staying in a gated community in Sanford. Mr.
Zimmerman said he shot Mr. Martin in self-defense after Mr. Martin, who was 17
and unarmed, confronted and assaulted him. The shooting, and an investigation
that resulted in no charges because of Florida’s Stand Your Ground law, led to a
nationwide clamor for justice for Mr. Martin, who was black. Mr. Zimmerman is
When deciding how to proceed with a criminal case, prosecutors must decide
whether to seek the toughest possible charges, said Gabriel J. Chin, a professor
at the University of California, Davis, School of Law. “There is a tradition of
‘charging high’ and letting the jury decide,” he said, but that strategy has its
“You don’t want to make an opening statement to the jury where you hurt your
credibility,” Professor Chin said, by seeming to impute motives to a defendant
without being able to prove them. “If you end up overreaching, you could wind up
Tough charges can be useful in other ways, said Eric Abrahamsen, a defense
lawyer in Tallahassee, Fla.: a charge like second-degree murder may be harder to
prove in court than manslaughter, but could pressure a defendant into a plea
bargain or allow the jury to “split the baby” by choosing the lesser charge of
If Ms. Corey declines to prosecute Mr. Zimmerman, the case may not be over. The
Department of Justice is conducting its own investigation, which could lead to a
separate federal prosecution. “The department’s investigation is independent,
and we are providing assistance to and cooperating with state officials in their
investigation into the incident,” said Xochitl Hinojosa, a Justice Department
The federal investigation is being run by the department’s civil rights
division, and involves the United States attorney’s office for the Middle
District of Florida and the Federal Bureau of Investigation. While a separate
trial on charges of violating civil rights is a possibility, “the government
must prove beyond a reasonable doubt that a person acted intentionally and with
the specific intent to do something which the law forbids,” Ms. Hinojosa said. A
prosecution could not be based on a finding that negligence, recklessness, a
mistake or an accident was involved.
If the case does proceed to a state trial, the road ahead will be rough because
of the media spotlight, said Craig Watkins, the district attorney for Dallas
County, Tex. One of the toughest challenges of prosecuting high-profile cases,
he said, is that so many of the early moves show up in public before the trial
begins, which can endanger fairness at trial.
Mr. Watkins said: “It’s like the O. J. Simpson case all over again. Where are
you going to find a jury pool that is unbiased and hasn’t heard anything about
He added, “I wouldn’t want to be in that county prosecutor’s shoes.”
Kovaleski contributed reporting from Orlando, Fla.,
Alvarez from Miami.
In Martin Case, Tough Choice Looms for Prosecutor, NYT, 10.4.2012,
Killing of 3 at a School
The New York Times
By SABRINA TAVERNISE
Ohio — Prosecutors on Thursday formally filed murder charges against T. J. Lane,
the teenager accused of methodically killing three students and wounding two
others in a shooting rampage on Monday in a high school cafeteria east of
The Geauga County prosecutor, David Joyce, filed the charges in juvenile court,
but he has said that the seriousness of the case would probably mean that Mr.
Lane, 17, would be charged as an adult. If he is found guilty of the charges —
three counts of aggravated murder, two counts of attempted murder and one county
of felonious assault on a student who was nicked in the ear — he could face life
in prison without parole.
It was a grim prospect for Mr. Lane, a slightly built teenager whose alleged
attack — shooting dead three students at point-blank range — have left this
tightly-knit community struggling for answers.
”I don’t know why this happened,” said Frank Hall, an assistant football coach
who helped chase the gunman out of the cafeteria, and spoke at a news conference
on Thursday. “I only wish I could have done more.”
The case remained a puzzle. No motive has been suggested and the police have
said that Mr. Lane told them he did not know the victims and was shooting at
random. But numerous accounts from friends and other students seem to contradict
that. Mr. Lane rode a bus with several of them. He and one of the boys who died,
Russell King, were said to have dated the same girl.
As a profile of Mr. Lane emerged, the mystery surrounding his actions seemed to
grow deeper. Friends and neighbors described him as a good listener, a skilled
skateboarder, a kind young man who loved to be outside and cared diligently for
his dog, Bowser. Though he had fallen behind in school — he was attending Lake
Academy, a school for at-risk youth — Whitney Goodlive, a friend of Mr. Lane who
moved out of Chardon in 2010 but kept up with him, said he had raised his grades
recently and was taking extra classes to catch up. He loved school, she said,
and had plans to go to college.
When she heard of the shooting, Ms. Goodlive said, she did not believe it.
”That’s not the T. J. I know,” she said. But his behavior immediately after the
shooting — he was said to have told a passer-by that he had done something
wrong, and then waited for the police to take him away, a detail the police
later confirmed — “is the T.J. I know — a sweet kid who only tells the truth.”
Some clues may lie in Mr. Lane’s early years. As a small child, he was
surrounded by trouble. His parents, Sara Nolan and Thomas Lane, who never
married, had a stormy relationship, with their fights landing them in court on
occasion, according to public records. Eventually they split up and Ms. Nolan
moved to another town and married someone else.
His older brother, Adam Nolan, who was in and out of jail on charges of drug
possession and theft, according to court records, may also have been a
complicating factor. Mr. Lane looked up to his brother, a family friend said,
but was ultimately overshadowed by him and his problems.
Family turmoil “definitely took a toll on T. J.,” said a friend of the Nolan
family, who asked not to be identified because she did not want to be seen as
criticizing the family. “He tried so hard to be normal. He had to see his
brother in and out of rehab and jail. He just sat there and watched. It’s really
hard to be normal around that.”
The boys were raised by their maternal grandparents, Jack and Carole Nolan, in a
one-story white wooden house on a rural road. The elderly couple are described
as caring parents, who had difficulty keeping tabs on their troubled grandson,
Adam, and their daughter, Sara, whom they had adopted.
”I don’t think anyone saw this coming,” said Tim Klepac, a longtime friend of
the Nolans. He said he sometimes saw the grandparents with Mr. Lane and his
younger sister, Sadie Lane, at choral productions at school. “You want to blame
someone and say this was the big problem. But it’s just not there.”
But few knew Mr. Lane’s inner world. The family friend said he had become very
concerned with his weight and his diet, eating only fruit, nuts and vegetables,
going from heavy to rail thin. He had posted on his Facebook page photographs of
his thin, bare torso and face, taken in the woods. In another picture, he was
embracing a large, stuffed teddy bear with a heart that read, “Be Mine.” He
suffered from searing migraines, the friend said, and often missed school
because of them.
Another posting contained a piece of writing — an assignment for a class,
according to Ms. Goodlive — that was interpreted by many as a sign that
something was wrong because it mentioned death. However the family friend saw
something different, a lonely boy who yearned to be accepted but was often
treated as an outcast. “He longed for only one thing, for the world to bow at
his feet,” the posting read.
The family friend, who has spoken with Mr. Lane’s grandmother this week, said
the grandmother described Mr. Lane as remorseful and crying constantly.
The victims’ families, meanwhile, found that solace remained out of reach.
Phyllis Ferguson, the mother of Demetrius Hewlin, one of the three students who
died, described her son as a “computer nerd” and a good athlete who lifted
weights at night.
“You’d hear the weights, click-click, click-click,” she said. “I’m going to miss
that midnight click-clicking.”
Tavernise reported from Chardon,
Preston from New York.
Delaquérière contributed research.
Teenager Is Charged in Killing of 3 at a School, NYT, 1.3.2012,
and Open Files
The New York Times
have a constitutional duty to disclose significant evidence favorable to a
criminal defendant. But too often that duty, as laid out by the 1963 Supreme
Court decision Brady v. Maryland, is violated.
To help ensure compliance, some prosecutors, criminal defense lawyers and legal
scholars have sensibly concluded that prosecutors’ files, as a general rule,
should be made open to defendants. In cases where turning over evidence might
endanger a witness, for example, a judge could allow an exception.
A small number of state and local governments have adopted open-file policies
that require prosecutors to make available well before trial all information
favorable to the defense, without regard to whether such information is likely
to affect the outcome of the case. North Carolina and Ohio and places like
Milwaukee have found that such policies make prosecutions fairer and convictions
less prone to error. The Justice Department should join this movement and set a
national example. But instead, it continues to take half-measures in response to
its own failures to meet disclosure requirements.
It responded to several cases of Brady violations by its attorneys — including
egregious misconduct in the case of the late Senator Ted Stevens — by providing
more training and by directing each United States attorney’s office to set forth
clearly its version of the department’s Brady policy, which is to turn over
favorable evidence only if it is “material,” meaning likely to make a difference
in the case’s outcome.
Those changes are not sufficient because the Brady rule is too easily skirted.
It allows prosecutors to withhold favorable evidence that they deem not to be
material, leaving defense lawyers unaware of evidence that may be owed them.
Ninety-six percent of federal criminal cases are resolved by plea bargains, so
the rule puts defendants at a disadvantage in negotiation: without access to
information in the government’s files, they don’t know the evidence they face
and can’t assess their odds at trial.
This weakness in the Brady rule also means there is no way of knowing how many
violations are buried by plea bargains. The few that become known, through
trials or post-trial challenges, are no index of the problem’s true dimensions,
but they can show how deeply rooted it is.
After the Justice Department dropped the case against Senator Stevens in 2009
because of prosecutorial misconduct, including the withholding of exculpatory
evidence, Judge Emmet Sullivan of the Federal District Court in Washington,
D.C., chose to appoint outside counsel to investigate what went wrong rather
than trust the Justice Department to do it.
In 2009, Judge Mark Wolf in Boston likewise found that the long-standing problem
eroded his trust in federal prosecutors. “In the District of Massachusetts,” he
wrote, “the government has had enduring difficulty in discharging its duty to
disclose material exculpatory information to defendants in a timely manner.”
In both the federal and state court systems, it is essential that rules about
disclosing evidence be followed in ways that promote justice. An open-files
policy would come closer to meeting this important standard.
Justice and Open Files, NYT, 26.2.2012,
Exonerated of Murder,
Seeks Inquiry on Prosecutor
The New York Times
By JOHN SCHWARTZ and BRANDI GRISSOM
Tex. — A Texas man wrongfully convicted in 1987 of murdering his wife is
scheduled to be officially exonerated on Monday.
That is no longer so unusual in Texas, where 45 inmates have been exonerated in
the last decade based on DNA evidence. What is unprecedented is the move planned
by lawyers for the man, Michael Morton: they are expected to file a request for
a special hearing to determine whether the prosecutor broke state laws or ethics
rules by withholding evidence that could have led to Mr. Morton’s acquittal 25
“I haven’t seen anything like this, ever,” said Bennet L. Gershman, an expert on
prosecutorial misconduct at Pace University in New York. “It’s an extraordinary
The prosecutor, Ken Anderson, a noted expert on Texas criminal law, is now a
state district judge. Through a lawyer, he vigorously denied any wrongdoing in
Mr. Morton’s case.
Mr. Morton, who was a manager at an Austin supermarket and had no criminal
history, was charged with the beating death of his wife, Christine, in 1986. He
had contended that the killer must have entered their home after he left for
work early in the morning. But Mr. Anderson convinced the jury that Mr. Morton,
in a rage over his wife’s romantic rebuff the previous night — on Mr. Morton’s
32nd birthday — savagely beat her to death.
Mr. Morton was sentenced to life in prison. Beginning in 2005, he pleaded with
the court to test DNA on a blue bandanna found near his home shortly after the
murder, along with other evidence.
For six years, the Williamson County district attorney, John Bradley, fought the
request for DNA testing, based on advice from Judge Anderson, his predecessor
and friend. In 2010, however, a Texas court ordered the DNA testing, and the
results showed that Mrs. Morton’s blood on the bandanna was mixed with the DNA
of another man: Mark A. Norwood, a felon with a long criminal history who lived
about 12 miles from the Mortons at the time of the murder. By then, Mr. Morton
had spent nearly 25 years in prison.
Mr. Norwood has been arrested and charged in Mrs. Morton’s death and is a
suspect in a similar murder from 1988.
The filing by Mr. Morton’s lawyer, John Raley, and attorneys from the Innocence
Project, a group based in New York that represents prisoners seeking exoneration
through DNA testing, is asking for what is known as a “court of inquiry.” The
lawyers did not share the document with reporters but answered questions about
They will ask the court to determine that there is probable cause to believe
that Mr. Anderson withheld reports that the judge in the 1987 trial had ordered
him to turn over. The judge had demanded the documents to determine whether they
might help Mr. Morton’s case. Finding nothing exculpatory in the small number of
documents he was provided by the prosecutor, the judge ordered the record
In August, however, a different judge ordered the record unsealed, and Mr.
Morton’s lawyers discovered that Mr. Anderson had provided only a fraction of
the available evidence. Missing from the file was the transcript of a telephone
conversation between a sheriff’s deputy and Mr. Morton’s mother-in-law in which
she reported that her 3-year-old grandson had seen a “monster” — who was not his
father — attack and kill his mother.
Also missing were police reports from Mr. Morton’s neighbors, who said they had
seen a man in a green van repeatedly park near their home and walk into the
woods behind their house. And there were even reports, also never turned over,
that Mrs. Morton’s credit card had been used and a check with her forged
signature cashed after her death.
In October, Judge Sid Harle of Bexar County District Court freed Mr. Morton
based on the DNA evidence and authorized an unusual process allowing his defense
lawyers to investigate the prosecutor’s conduct in the original trial. The
lawyers questioned the lead sheriff’s investigator, an assistant district
attorney who worked with Mr. Anderson and the former prosecutor himself.
In their accounts, the witnesses said Mr. Anderson had firmly controlled every
detail of the prosecution. In his own two-day deposition, however, Judge
Anderson said he recalled few details of the case and asserted that he had done
nothing wrong. He said that he had interpreted the judge’s order to disclose the
reports as a narrow demand for the initial documents from the investigation and
that he felt “sick” over Mr. Morton’s wrongful imprisonment.
If the court of inquiry ends with a finding that Mr. Anderson committed serious
acts of misconduct by concealing material evidence, it could lead to
disciplinary action by the state bar association and possibly even a criminal
Experts, however, are skeptical that Judge Anderson could face serious
punishment or disbarment, even if the court were to decide that he had committed
malfeasance. Susan R. Klein, a professor at the University of Texas Law School
who specializes in criminal issues and prosecutorial ethics, said that such
actions would be “incredibly unusual,” particularly after the Supreme Court’s
decision this year dismissing a $14 million civil jury award against a Louisiana
prosecutor, Harry Connick Sr., for his failure to turn over evidence that
ultimately led to an exoneration.
While withholding material evidence intentionally can get a lawyer disbarred,
Ms. Klein said, “It’s extremely unlikely.” In the court filing, Mr. Morton’s
lawyers argue that the amount of time that has passed since the trial may not be
a bar to criminal prosecution if Mr. Anderson is found to have violated a court
order; they argue that there may be no statute of limitations for contempt of
court under state law.
Mark Dietz, a lawyer for Judge Anderson, said that he had asked for, but had not
received, the report that Mr. Morton’s lawyers plan to file on Monday. He said
he worried that the report would inaccurately reflect what happened in 1987. Mr.
Dietz questioned whether Judge Harle had jurisdiction to order a court of
inquiry, and in a letter to Barry C. Scheck, the co-founder of the Innocence
Project, wrote that while his client welcomed “positive discussion about
criminal justice reforms,” “false and defamatory statements regarding Mr.
Anderson’s conduct as a prosecutor in the Morton case have no proper place in
In an interview, Mr. Scheck said he hoped the court of inquiry proceeding would
result in changes in law and policy that could promote greater fairness in
criminal cases. Previous high-profile exonerations, he said, have led to new
laws that improved access to DNA testing after conviction and provided generous
compensation to those who were wrongfully convicted.
“This is one of those catalytic, iconic cases that leads to reform,” he said.
reported from New York, and Brandi Grissom from Austin. Ms. Grissom writes for
The Texas Tribune, which produces a twice-weekly local section in the Texas
editions of The New York Times.
Exonerated of Murder, Texan Seeks Inquiry on Prosecutor, NYT, 19.12.2011,
The Prosecution’s Case Against DNA
November 25, 2011
The New York Times
By ANDREW MARTIN
By the time Juan Rivera was taken to Lake County for
questioning on Oct. 27, 1992, the search for Holly Staker’s killer had gone
cold. Two and a half months had passed since the 11-year-old girl was raped and
stabbed while baby-sitting for two little children, and with the killer still at
large, neighborhood-watch groups had formed and wary parents kept their children
indoors. The Lake County police had pursued nearly 600 leads and interviewed
about 200 people but were not close to making an arrest when they hooked Rivera
up to a polygraph machine and began questioning him about his whereabouts on the
night of the murder.
A 19-year-old with a ninth-grade education and a history of psychological
problems, Rivera was interviewed by the police a few weeks earlier and told them
that he was at a party near the crime scene and that he noticed another
partygoer there acting strange. This time around, he repeated the same story for
two days before finally admitting it was a lie. Still, he denied murdering the
What followed was 24 hours of near constant interrogation, and around 11:30 on
the morning of Oct. 30, after banging his head on a cell wall, pulling out a
clump of his hair and being handcuffed behind his back and placed in leg
shackles, Rivera finally provided investigators with a detailed confession.
In his sworn statement, Rivera detailed how, on Aug. 17, the morning of the
killing, he bought two joints and a half gram of cocaine, snorted the cocaine
and smoked one of the joints and then headed across town, at which point he came
upon Holly standing in front of a two-story apartment building on Hickory
Street, just north of downtown Waukegan.
“Ain’t you Rebecca’s brother?” Holly asked him. His younger sister once
introduced him to Holly, and he couldn’t believe this girl, a striking blonde
with an identical twin sister, was only 11. She was baby-sitting a 5-year-old
boy and a 2-year-old girl, and Rivera said she told him that she was lonely and
invited him up to the second-floor apartment to keep her company.
“I played with a little boy and little girl, because I really like kids,” Rivera
told police. When the 2-year-old got tired, he took her to the bedroom to rest,
and the boy left the apartment to play. Soon, Rivera said, he was naked and
trying to have sex with Holly, but he was unable to get an erection, and she
began making fun of him. When the 2-year-old started crying and he went to the
bedroom to comfort her, Holly followed him and grabbed his crotch and insulted
him again. “Is that all you got?” she said.
“This is when I got really mad, and she kept making fun of how small I was and
that I could not get hard,” he said. He ran to the kitchen, grabbed a knife from
a dish rack and returned to the bedroom. Holly grabbed his wrists and tried to
fight him off.
“If she would have stopped yelling and fighting me, I would have stopped cutting
her, and she would not have gotten hurt anymore,” he said. Rivera described how
he pushed her onto a bed and had intercourse with the bleeding girl, whom he
stabbed 27 times. He did not remember if he ejaculated. When he was finished, he
washed the knife and his hands in the kitchen sink and ran out the back door. On
the way out, he grabbed a mop and bashed the door to make it look like a
robbery, then wiped the mop with a towel to remove his fingerprints. Once
outside, he broke the knife, tossed it in the backyard and ran home.
Rivera’s grisly, three-page confession became the key piece of evidence against
him in his murder trial in 1993 — and again in two subsequent retrials, the
latest in 2009. Each time, Rivera was convicted, and he is now serving a life
sentence at Stateville Correctional Center near Joliet, Ill. His lawyers are
seeking an outright reversal or a fourth trial before the Illinois Appellate
Court, arguing that there is no physical evidence and no witnesses linking
Rivera to the crime; that his confession was coerced; and, perhaps most
significant, that DNA testing in 2005 definitively ruled him out as the source
of the semen found inside Holly Staker’s body. (At the time this article went to
print, a decision from the appellate court was imminent.)
“This is a rape and murder of an 11-year-old child, and the semen found inside
the girl excludes Juan Rivera,” Jeffrey Urdangen, one of Rivera’s lawyers, said.
“According to the state’s perverse theory, the girl, the unfortunate victim, was
having sex with another man who was not the murderer. It’s ludicrous.”
In the years before DNA evidence was introduced to the legal system, little was
known about the extent of wrongful convictions and the situations in which they
occurred. That changed in 1986, when an English scientist used DNA testing to
help exonerate a man accused of raping and killing two teenage girls (the
evidence also led the police to the real killer). Since then, DNA testing has
helped exonerate 280 convicted felons in the United States and has exposed deep
flaws in our legal system, including misconduct by the police and prosecutors
and egregious mistakes made by witnesses and forensic scientists. In his 2011
book, “Convicting the Innocent,” Brandon Garrett, a law professor at the
University of Virginia, examined most of the case files for the first 250 DNA
exonerations. Garrett found that 76 percent of wrongly convicted prisoners were
misidentified by a witness and half the cases involved flawed forensic evidence.
The testimony of an informant, often a jailhouse cellmate of the accused, was
pivotal in 21 percent of the cases. Perhaps most surprising, 16 percent —
virtually all of whom were subjected to interrogations lasting several hours
and, in many cases, days — confessed to crimes they didn’t commit. Garrett
pointed out another, striking detail in the false confessions: in 38 of 40 false
confessions, the authorities said defendants provided details that could be
known only by the actual criminal or the investigators, thus corroborating their
own admissions of guilt by revealing secret information about the crime that
could only have been provided by them.
The issues raised by DNA exonerations have led to an overhaul of the
criminal-justice system. Some states now require that evidence be preserved;
others require mandatory videotaping of interrogations. Several states,
including Illinois, New Jersey and New York, abolished the death penalty largely
because of concerns about executing an innocent person. North Carolina,
meanwhile, has created an independent commission to review innocence claims. And
some prosecutors’ offices, including those in New York and Dallas, have created
More often, though, the fate of an inmate with powerful new evidence of
innocence still rests with local prosecutors, some of whom have spun creative
theories to explain away the exculpatory findings. In Nassau County on Long
Island, after DNA evidence showed that the sperm in a 16-year-old murder victim
did not come from the man convicted of the crime, prosecutors argued that it
must have come from a consensual lover, even though her mother and best friend
insisted she was a virgin. (The unnamed-lover theory has been floated so often
that defense lawyers have a derisive term for it: “the unindicted
co-ejaculator.”) In Florida, after DNA showed that the pubic hairs at the scene
of a rape did not belong to the convicted rapist, prosecutors argued that the
hairs found on the victim’s bed could have come from movers who brought
furniture to the bedroom a week or so earlier.
“They essentially argued that there were naked movers,” said Nina Morrison, a
senior staff lawyer at the Innocence Project, a New York-based group that seeks
to exonerate wrongfully convicted inmates.
Why prosecutors sometimes fight post-conviction evidence so adamantly depends on
each case. Some legitimately believe the new evidence is not exonerating. But
legal scholars looking at the issue suggest that prosecutors’ concerns about
their political future and a culture that values winning over justice also come
into play. “They are attached to their convictions,” Garrett says, “and they
don’t want to see their work called into question.”
Few offices have fought post-conviction evidence with as much gusto as the Lake
County state’s attorney’s office, which is coming under increased scrutiny for
what defense lawyers and law professors suspect is an alarming number of
wrongful convictions. One murder case has unraveled, and several other rape and
murder convictions are now being challenged. “They can never admit a mistake,”
said Kathleen Zellner, a lawyer who is suing Lake County on behalf of a man
named Jerry Hobbs, who spent five years in jail for killing his daughter and her
friend; he was released last year after sperm found inside one of the girls was
linked to a convicted rapist and accused murderer. “They have to solve cases
quickly, and if a problem develops or doubt develops about a person’s
culpability, they feel like they have to press on,” she said. “It’s a
Lake County encompasses some of Chicago’s wealthiest suburbs, like Lake Forest
and Mettawa, but Waukegan, which sits along Lake Michigan on the eastern edge of
the county, is a world apart from those communities. It is a once-thriving
factory town that in recent years became known for its noxious Superfund sites:
remnants of an asbestos plant and an outboard-motor manufacturer. The county
legal system is controlled by a relatively small group, almost all Republicans.
The state’s attorney is Michael Waller, who has held the job since 1990, when he
was appointed to fill out the term of his predecessor. Until recently, Waller’s
wife, Jane, was a long-serving Lake County judge. (Waller declined to be
interviewed for this article.) Of the three dozen sitting judges in Lake County,
three are Democrats. Two-thirds are former prosecutors, mostly from the office
of the Lake County state’s attorney. The current sheriff is a Republican and
also a former Lake County prosecutor.
In 2009, when the former head of the county’s Republican Party, Tom Adams, was
sentenced for the possession of child pornography, he received 30 days in jail
and 30 months’ probation as part of a plea agreement, prompting complaints that
he received light punishment. “There is no challenge to the orthodoxy,” said
David Rutter, who was editor of the local paper, The Lake County News-Sun, from
2006 to 2008. “No one is going to run and challenge a judge or prosecutor on
Jed Stone, a local defense lawyer, described the legal community as “an echo
chamber.” “The problem with everyone coming from the same background, from the
same state’s attorney’s office, from the same narrow political spectrum, is
there is a failure to see the other side,” he said. “You begin to view people as
others. And when you begin to see people as other than you, they begin to become
Lake County certainly isn’t the only county in the United States dominated by
one party and an insular political and legal culture. (Neighboring Cook County,
for instance, has long been controlled by Democrats and has its own ignoble
history of wrongful convictions.) It may be the only place, however, with a
prosecutor as obstinate and as gifted as Mike Mermel. A 60-year-old widower,
Mermel joined the state’s attorney’s office in 1990, after a stint as a
prosecutor in Cook County. The first time I contacted him and said that I was
from The New York Times, Mermel immediately announced that he was conservative.
He agreed to speak with me on the phone, and later in the lobby of the state’s
attorney’s office, but he refused requests for subsequent interviews and sought
to retract all statements from our previous conversation.
Defense lawyers described Mermel’s office to me, with a photo of Charlton Heston
and a book by Ann Coulter on display. “The first time I was in his office, he
played me a videotape of Rush Limbaugh,” Stone said. “It was a diatribe on Bill
While some of Mermel’s tactics have drawn the ire of defense lawyers, others
give him grudging respect for his skill in the courtroom. “He’s a very effective
trial lawyer,” Stone said. “But his view of the world is very narrow.” In the
case of Juan Rivera, Lake County prosecutors have been able to convince juries,
not once but three times, that he was the murderer, despite DNA evidence in the
last trial that powerfully suggested otherwise. (Mermel was the lead lawyer on
the third trial and assisted in the second.)
“We don’t fold our tents and run,” Mermel told me when we spoke this spring. “We
don’t quaver because somebody holds up three letters: DNA.”
When I asked him specifically about the Rivera case, Mermel said that sometimes
post-conviction evidence is irrelevant. “The example I like to give people is
next time you go to a motel room, bring a plastic bag, because the dirtiest
thing in that room is the remote control. Everybody has sex and then rolls over
and goes, ‘I wonder what’s on?’ ” he said. “O.K., so you can find DNA in the
form of sperm from 10 different people in that room from that remote control or
even on a person who has touched it. And that woman gets murdered in that room
tonight, and you are going to have a lot of DNA. Is it all going to be
His theory for why there was sperm that did not come from Juan Rivera inside
11-year-old Holly Staker on the day she was murdered is, to his mind, simple and
straightforward. She and her twin sister, Heather, were sexually active, Mermel
argues, and Holly must have had sex with someone else before Rivera came along
and raped (but didn’t ejaculate) and murdered her. There was scant evidence to
support this sexual-activity theory, but Mermel dismissed that objection.
“Nobody is going to admit to having sex with an 11-year-old girl, even if the
statute of limitations has run out,” he told me. “But there was a lot of
evidence that came to our office that these two girls were sexually active.”
It was not the first time prosecutors in Lake County offered such a theory. In
one case, Mermel is fighting efforts by a convicted rapist to clear his name
after DNA testing excluded him as the source of sperm found inside the victim.
Though Lake County prosecutors initially argued that the sperm came from the
rapist, Mermel is now arguing just the opposite: that it came from an unnamed
lover. In another case, Mermel opposed a new trial for a man convicted of
killing an unidentified woman. When her identity became known years later, it
turned out that her former husband once admitted that he killed her. Mermel
dismissed statements from the husband, who is mentally disturbed, as the rants
of a “one-armed Cuban feces-covered masturbator.” When asked about the case last
year, he told The Chicago Tribune: “The taxpayers don’t pay us for intellectual
curiosity. They pay us to get convictions.”
But few cases have damaged Lake County’s credibility as much as the one against
Jerry Hobbs. In the spring of 2005, Hobbs arrived in Lake County after a
two-year stint in a Texas prison for chasing a rival for his girlfriend’s
affections with a chain saw. His plan was to reconcile with the girlfriend, who
was now living in Zion, Ill., and to become reacquainted with their three
A few weeks after he arrived, his daughter, Laura, went outside to play with a
friend, Krystal Tobias, who was 9. The girls never returned, and that evening
the family began looking for them and eventually called the police. After a
frantic night of searching, Hobbs said he came across the girls’ bodies in a
remote wooded area around 6 a.m. They were lying on their backs, fully clothed,
with multiple stab wounds and bruises, particularly around their necks and
Hobbs was brought back to the Zion police station by 7:30 that morning, and the
questioning began. Investigators thought it was suspicious that an ex-convict
who was new to the area discovered the bodies before local residents and the
police, and they thought his reaction to finding the bodies was also odd.
According to police reports: “Hobbs referred to his daughter Laura and Krystal
Tobias as ‘them girls’ and didn’t use Laura’s name. Hobbs also didn’t show any
emotion and avoided looking at us when we talked about Laura.” After maintaining
his innocence for about 20 hours, Hobbs finally relented and signed a confession
stating that when he went to get Laura to come home, the girls resisted, then
Krystal pulled out a small knife, and the two girls attacked him. Hobbs said he
hit them both and eventually got the knife from Krystal and began stabbing her,
then stabbed Laura. “Things just got out of hand, and I lost it,” he said.
He was charged with the murders, and prosecutors vowed to seek the death
An initial examination found no evidence of sexual assault in the case, and
Hobbs never mentioned it in his confession. Two years after his arrest, though,
a private laboratory hired by his lawyers discovered that there had been sperm
in Laura’s vagina, anus and mouth, and they tested a sample. The defense lawyers
immediately announced that DNA analysis showed the DNA did not match Hobbs’s.
When Mermel heard about the findings, he dismissed them and suggested that Laura
could have got the sperm on her while playing in the woods, where couples might
Hobbs remained in jail, awaiting trial, for more than two years before the DNA
was found to match a friend of Krystal’s older brother named Jorge Torrez, who
was already serving a sentence in a Virginia jail for attacking three women, one
of whom he raped, choked and left for dead. (He was eventually sentenced to life
in prison for those crimes; currently he is also being charged for the 2009
murder of a 20-year-old naval officer.)
In August 2010, Michael Waller, the state’s attorney, told reporters he was
releasing Hobbs because they could no longer prove his guilt beyond a reasonable
Lake County has yet to charge Torrez for the murders of Laura and Krystal, and
Mermel said he still suspected that Hobbs was the killer and that the sperm was
not related to the crime. One plausible scenario, he says, is that Torrez
masturbated while visiting Krystal’s brother, and then Laura got it on her hands
and unknowingly transferred it elsewhere.
“They have popcorn-movie night, and the little girl is in the same bed where
this guy did it,” Mermel said by way of explanation. “How do we get colds? We
touch our mouths, we touch our nose. What does a woman do after she urinates?”
We were in the lobby of the prosecutor’s office, and Mermel answered his own
question by standing and pulling his hand between his legs, as if wiping
himself. “Front to back, O.K.?”
Hobbs, who is now 41 and lives in Texas and trims trees for a living, told me he
confessed to the crime because he hadn’t slept in days and figured the truth
would come out. “I found my daughter,” he said. “She didn’t even have eyes in
her head. I was already broken. They didn’t have to break me.”
He said that he didn’t understand why Lake County wasn’t pursuing Torrez for the
crime, and that he had filed a lawsuit against the county for wrongful
“Why haven’t they charged him as fast as they railroaded me?” he said.
I met Juan Rivera this spring in a stark conference room at the Stateville
Correctional Center near Joliet. He wore dark blue prison pants, a light blue
work shirt and white unlaced high-top sneakers. His black hair was slicked
straight back, and he had a trim goatee.
He was bigger than he was the last time I saw him, 18 years ago. He’s 39 now,
6-foot-3 and 200 pounds, his arms decorated with menacing prison tattoos. Once
we started talking, though, Rivera smiled easily and became relaxed, almost
serene, a fact that he attributes to a religious conversion in prison. “The only
thing that is incarcerated is my body,” he said. “My mind is free here.”
The first time I met Rivera was in April 1993, when I interviewed him at the
Lake County Jail. At the time, I was the police reporter for the newly opened
Lake County bureau of The Chicago Tribune. Holly’s murder came to dominate much
of my reporting over the next year, and as the story unfolded, I began to have
doubts about the case against Rivera.
For one thing, a prosecution witness, who claimed Rivera confessed to him in
jail, tried to sell me case documents at a local McDonald’s.
“I never touched that girl,” Rivera told me when I first interviewed him.
Despite the claim in his statement that he had met her through his sister, he
now said: “I don’t even know her or her family. I’ll keep saying I’m innocent,
because I am.”
Seven months later, on Nov. 19, 1993, Rivera was convicted of murder. While I
was hardly convinced of his guilt, I moved on to other jobs and largely forgot
about him. Occasionally, though, his incarceration would nag at me, and last
fall, after reading stories about Jerry Hobbs, I began checking in with lawyers
again and asked Rivera if I could speak with him in prison.
In the small concrete-block conference room, behind two sets of locked gates,
Rivera sat across from me as a prison official hovered nearby. When I asked him
why he confessed, Rivera said he blacked out and doesn’t remember the specifics.
“Coercion is just not physical, but it’s also mental,” he said. “There’s
different ways to actually break a person down.” He added: “I know that it is
easy to overbear a person’s mind if you continuously barrage them with questions
and accuse them. And that’s exactly what they did with me.”
Rivera moved to Waukegan about a year before Holly’s murder, and while he worked
a few jobs, he mostly hung around on the streets and got high. He had a minor
criminal record and twice tried to commit suicide. On the night of the murder,
he was confined to his home by an electronic leg monitor for stealing a car
stereo. The monitoring system was supposed to alert authorities if Rivera left
his house, though the system was prone to malfunction. He said he routinely
violated his home confinement, infractions that were noted by Lake County
authorities, who eventually sent him to prison for them. On the evening of Aug.
17, however, records for his monitor show he was at home.
Rivera said he learned about the murder from a friend who was at a party that
night near the crime scene. She was the one who noticed one of the partygoers
leave and then return later, acting strange. When he was sent to jail that
September for violating his home confinement, Rivera repeated his friend’s
story, putting himself at the party to protect her, because she had an
outstanding warrant. His cellmate contacted police, and Lake County detectives
arrived to question him in prison on Oct. 2. Later that month, on Oct. 27, with
all their leads turning into dead ends, they took Rivera to Lake County and
began questioning him intensively.
Three days later, on Oct. 29, investigators directly accused Rivera of Holly’s
rape and murder. He became agitated and swore and tried to leave the room. Over
the course of that night, detectives continued to press him about
inconsistencies in his story. Just after midnight, Sgt. Charles Fagan asked
Rivera, “Juan, you were in that apartment with Holly Staker, weren’t you?”
Rivera nodded and began sobbing. He then told detectives that he killed Holly,
but only after she attacked him with a knife because he refused to have sex with
her. (Fagan did not respond to requests for comment.)
Shortly after detectives left the room at 3 a.m., Rivera began banging his head
against the wall. One jail official later testified that he was unresponsive and
stared straight ahead afterward. He was moved to a padded cell, and a nurse who
went to check on Rivera later said he was pacing back and forth, speaking
incoherently. The nurse testified that he was in a psychotic state and was “not
in touch with the reality of what was going on around him.”
Around 5 a.m., investigators called Holly’s mother and woke her up with news
that they had caught the killer. The rest of the Lake County task force was
informed of the confession and told to report to work. When Fagan returned to
talk to Rivera shortly after 8 a.m., he described the suspect as handcuffed and
shackled but nonetheless coherent and cooperative. The detectives read back the
confession that Rivera had made earlier, and he signed it.
But there were problems. Even though Rivera admitted to killing Holly, many of
the details in his confession didn’t match the crime scene, and investigators
thought it was implausible that Holly was the aggressor. They gathered in
Waller’s office at 9 a.m. on Oct. 30, four days before his election as state’s
attorney, to figure out what to do next. They decided a fresh team of detectives
was needed to interview Rivera again to resolve the discrepancies in his
When Lou Tessmann retired from the Waukegan police in 2005, the Illinois House
of Representatives passed a resolution praising his two decades of service. The
resolution noted that Tessmann, a former Marine, is “well known for his
interrogation techniques on suspects of crimes.”
Since then, Tessmann has traveled the country offering seminars to police
officers on how to investigate homicides and interrogate potential suspects.
“Mr. Tessmann has obtained over 80 homicide confessions during his career with
only three instances where he was unable to obtain a confession from a homicide
suspect” — a 96 percent success rate — according to the Web site of his
employer, Wicklander-Zulawski & Associates.
It was Tessmann who was sent in to interrogate Rivera around 11:30 a.m. on Oct.
30, along with Sgt. Michael Maley of the Illinois State Police. In the hour or
two before the interview began, Rivera was hitting his head against a glass
window and was then on the floor with his wrists and ankles cuffed behind him.
Tessmann, however, described Rivera as “very comfortable, very relaxed” during
Though Tessmann arrived at the police station roughly seven hours before the
interview, he testified that he wasn’t aware of Rivera’s previous confession.
(One of his colleagues testified that he gave Tessmann the statement that
morning.) He said that Rivera willingly recounted the crime, which then cleared
up many of the issues that prosecutors considered problematic. He described how
Rivera borrowed a pen to show how he stabbed Holly, and in what was portrayed as
a smoking gun, Rivera confessed that he used a mop to bash in the back door to
make it look like a burglary. Tessmann said this was the first he had heard of
the mop, but a polygrapher testified that Tessmann told him about it prior to
The confession was not recorded, but investigators typed it up and presented it
to Rivera, who, according to police, corrected several typos before affixing his
In his closing argument in the third trial, Mermel told jurors that the case
basically came down to whom they believed: the police or the DNA evidence? “Is
there anything in the makeup of any of those men that would lead you to believe
that they were the kind of people who had dedicated their lives to this
profession, yet just decided to just frame this poor innocent Juan Rivera
because they were tired of investigating and wanted to go home?” he said.
What the jury didn’t know was that Mermel had already successfully argued
against the admissibility of any evidence that might cast doubt on Tessmann’s
credibility. For instance, Tessmann said in a 1990 deposition and in an official
biography that he earned an English degree from the University of Wisconsin. But
the school’s 13 four-year colleges have no record of him ever attending. (In
fact, he graduated from Northeastern Illinois University.) In 1989, Tessmann and
four other police officers were sued for allegedly breaking into the wrong home
during a police raid and injuring a woman who was seven months pregnant. The
woman’s lawyer accused the police of writing reports to cover up their conduct
and charged that Tessmann “took the lead in creative drama.”
According to documents provided by defense lawyers, a judgment was entered
against Tessmann and the other officers for $48,500 in that case, and two years
later, another judgment of $71,500 was entered against Tessmann in a case
brought against him by a man who was wrongfully arrested for robbery.
A decade later, in 2001, a woman named Colleen Blue was charged with murder
after she confessed to killing her newborn. Tessmann, then a commander, said to
a reporter for The Chicago Daily Herald, “She told us she had six kids already
and just did not want to deal with another one.” He added: “She said she gave
birth to the baby when she was all alone, put him in the bag and walked off. She
told us she could hear the baby crying until she got close enough to the street
that the passing cars drowned out the sound.”
Charges against Blue were dropped when DNA testing revealed it wasn’t her baby.
When I called to speak with him about the Rivera case, Tessmann said that three
different juries found Rivera guilty. “The guy is guilty as the day is long,” he
said, before abruptly hanging up. He did not respond to a written request to
answer subsequent questions. Sergeant Maley, Tessmann’s fellow interrogator,
agreed with Tessmann’s assessment. “I can tell you 100 percent that Juan Rivera
did the murder,” he said. “He told us things that we later investigated that
were found to be true that only the killer would have known.”
In the spring I went twice to visit Heather Staker, Holly’s twin sister. In the
first visit, in her apartment on the second-floor above some offices in downtown
Waukegan, Staker, a slight blonde, now 30, wore a bright pink sleeveless shirt,
a pink headband and pink pajama bottoms covered with images of Tinkerbell. It
was, of course, like looking at a grown-up version of Holly, a fact that Heather
knows all too well. “I’ve never been known as Heather Staker,” she said. “I’m
known as Holly Staker’s twin.” She described how she and Holly were best friends
when they were kids, that they slept on a bunk bed and shared everything. “We
always played games on people because they could never tell us apart unless they
saw the mole on my back,” she said. “April Fool’s, we’d switch classes.”
By her own admission, Heather has led a troubled life. She left home at 15, has
been arrested multiple times, spent time in prison and battled heroin addiction.
Recently, she suffered a stroke, which she says may have been brought on by her
unhealthful lifestyle. Her two children are being raised by her mother. She told
me that she was the one who was supposed to baby-sit on the evening her sister
was murdered, but Holly volunteered to take her place. “I’ve been a screw-up my
whole life because of it,” she said. “I just try to live day by day.”
Heather was an important witness in Rivera’s 2009 trial, testifying that she and
Holly were forced to perform oral sex on a friend’s brother when they were 8.
She also told jurors that they had shown each other how to masturbate.
Prosecutors did not present other evidence that Holly was sexually active.
When we talked, though, Heather said it was simply not true. “We were not
sexually active,” she told me, although she did not deny that they were abused
earlier. Still, she made it clear that she had no doubt that Rivera killed her
sister. When I asked about the sperm that doesn’t match Rivera’s, she suggested
that maybe someone else was involved along with him, or maybe her sister was
raped by another man before the murder.
“Why would you confess?” she said. “If I am getting charged with murder, I am
not going to fess to something I did not do and then explain the whole night and
how I did it and why I did it and everything like that if I didn’t do it.”
Earlier this year, Heather got a tattoo on the back of her neck, next to the
mole that distinguished her from her sister. It says, “My Missing Half” and
“Holly,” with wings on the side and a halo above it.
“I think about her a lot,” she told me the last time I saw her. She had dyed her
hair pink since my previous visit. “I wonder how it would have been if she were
here. You know, right now. The two of us running around, you know what I mean?”
On a chilly May morning, on a street not far from where Holly was murdered,
Jennifer Linzer, from the Center on Wrongful Convictions at Northwestern
University, and Cynthia Estes, a private investigator, visited the home of a man
who was arrested for sexually assaulting a boy shortly before Holly was killed.
They began by asking what he remembered about the evening of Holly’s murder,
which wasn’t much. They talked about his criminal record, and he pointed out
that he liked boys, not girls. Then they asked him if they could get a saliva
sample in order to eliminate him as a possible suspect through DNA testing.
“I said, ‘This case is probably coming around again, and we are going to give a
list to the cops of people who they should look at and test,’ ” Linzer said. “He
said: ‘Great. I’ll do it.’ ”
Rivera’s lawyers would like to obtain a new trial with a different judge. They
believe the judge who presided over the previous three trials unfairly favored
the prosecution and should not have allowed prosecutors to introduce evidence
about Holly’s alleged sexual past, among other supposed judicial errors. But
even if Rivera is granted a new trial, with a new judge, there is a realization
among his supporters that he could once again be convicted. The crime is simply
too heinous, the confession too powerful.
Perhaps the only way to win Rivera’s freedom is to prove that someone other than
Rivera killed Holly Staker. Which is where Linzer comes in. The wife of
Northwestern’s provost, Linzer began working as a volunteer at the center a
decade ago, after she grew restless as a stay-at-home mom. Before the end of the
year, she was working full time, organizing files, directing student volunteers
and reviewing innocence claims from inmates. She heard about Rivera’s case and
eventually began speaking regularly to him on the telephone.
When Rivera lost his third trial, Linzer compiled a spreadsheet of potential
suspects and, along with Estes, set about trying to find a killer by asking
potential subjects for DNA samples. There are plenty of leads within blocks of
the murder. Police reports show that at least two other men told friends that
they killed Holly, one of them saying he stabbed her so many times he got tired.
There were also at least three convicted sex offenders in the neighborhood, one
of whom was convicted of molesting his 11-year-old stepdaughter, and around the
corner was a boarding house full of transients. An elderly man a few blocks away
supposedly drove around the neighborhood naked and masturbating. When police
arrived to interview him, there was a picture of Holly and an envelope with her
name on it in his house. A high-school senior had a picture of Holly, too,
tucked in his wallet.
“Either this crime touched a lot of people, or there is an inordinate number of
perverts in town,” Linzer said.
Typically, she and Estes show up at a suspect’s home and simply ask them for a
saliva sample. If that doesn’t work, they resort to other measures. In one
instance, they retrieved a cigar butt that a suspect discarded in an alley. In
another, they saved a plate of discarded chicken wings that someone had eaten.
Even if Rivera’s defenders don’t find the killer, Rivera told me he remains
optimistic that he will ultimately be freed. “I believe in God,” he said. “I
believe that everything comes around. . . . Things should come correct. I don’t
know when it will happen, but I do have faith that one day I will go home.”
If Mermel is worried about Rivera’s walking free, he doesn’t show it. He says
that Holly Staker’s killer is already in prison, that the sperm found inside her
is a red herring. “People love to link the murder and the sex,” he said. “It’s
like peanut butter and jelly.” It was his job, though, to separate sex and
death, to “look at the evidence,” as he put it, “and go, ‘What does this add up
Andrew Martin is a reporter for the Business Day section of The
This is his first article for the magazine.
Editor: Joel Lovell
The Prosecution’s Case Against DNA, NYT,
Sentencing Shift Gives
New Leverage to Prosecutors
The New York Times
By RICHARD A. OPPEL Jr.
GAINESVILLE, Fla. — After decades of new laws to toughen sentencing for
criminals, prosecutors have gained greater leverage to extract guilty pleas from
defendants and reduce the number of cases that go to trial, often by using the
threat of more serious charges with mandatory sentences or other harsher
Some experts say the process has become coercive in many state and federal
jurisdictions, forcing defendants to weigh their options based on the relative
risks of facing a judge and jury rather than simple matters of guilt or
innocence. In effect, prosecutors are giving defendants more reasons to avoid
having their day in court.
“We now have an incredible concentration of power in the hands of prosecutors,”
said Richard E. Myers II, a former assistant United States attorney who is now
an associate professor of law at the University of North Carolina. He said that
so much influence now resides with prosecutors that “in the wrong hands, the
criminal justice system can be held hostage.”
One crucial, if unheralded, effect of this shift is now coming into sharper
view, according to academics who study the issue. Growing prosecutorial power is
a significant reason that the percentage of felony cases that go to trial has
dropped sharply in many places.
Plea bargains have been common for more than a century, but lately they have
begun to put the trial system out of business in some courtrooms. By one count,
fewer than one in 40 felony cases now make it to trial, according to data from
nine states that have published such records since the 1970s, when the ratio was
about one in 12. The decline has been even steeper in federal district courts.
Cases like Florida v. Shane Guthrie help explain why. After Mr. Guthrie, 24, was
arrested here last year, accused of beating his girlfriend and threatening her
with a knife, the prosecutor offered him a deal for two years in prison plus
Mr. Guthrie rejected that, and a later offer of five years, because he believed
that he was not guilty, his lawyer said. But the prosecutor’s response was
severe: he filed a more serious charge that would mean life imprisonment if Mr.
Guthrie is convicted later this year.
Because of a state law that increased punishments for people who had recently
been in prison, like Mr. Guthrie, the sentence would be mandatory. So what he
could have resolved for a two-year term could keep him locked up for 50 years or
The decrease in trials has also been a consequence of underfinanced public
defense lawyers who can try only a handful of their cases, as well as,
prosecutors say, the rise of drug courts and other alternative resolutions.
The overloaded court system has also seen comparatively little expansion in many
places, making a huge increase in plea bargains a cheap and easy way to handle a
near-tripling in felony cases over the past generation.
But many researchers say the most important force in driving down the trial rate
has been state and federal legislative overhauls that imposed mandatory
sentences and other harsher and more certain penalties for many felonies,
especially those involving guns, drugs, violent crimes and repeat offenders.
Stiffer punishments were also put in place for specific crimes, like peddling
drugs near a school or wearing a mask in certain circumstances. And legislators
added reams of new felony statutes, vastly expanding the range of actions
These tougher penalties, by many accounts, have contributed to the nation’s
steep drop in crime the past two decades. They have also swelled the prison
population to levels that lawmakers in some states say they can no longer
afford, and a few have rolled back some laws.
In the courtroom and during plea negotiations, the impact of these stricter laws
is exerted through what academics call the “trial penalty.” The phrase refers to
the fact that the sentences for people who go to trial have grown harsher
relative to sentences for those who agree to a plea.
In some jurisdictions, this gap has widened so much it has become coercive and
is used to punish defendants for exercising their right to trial, some legal
“Legislators want to make it easy for prosecutors to get the conviction without
having to go to trial,” said Rachel Barkow, a professor of law at New York
University who studies how prosecutors use their power. “And prosecutors who are
starved for resources want to use that leverage. And so now everyone acts with
the assumption that the case should end with a plea.”
“When you have that attitude,” she said, “you penalize people who have the nerve
to go to trial.”
Prosecutors say they are giving defendants options and are merely charging them
based on what is allowed under the law for those who turn down pleas.
While legal experts say the effect is clear in persuading more defendants to
forgo trials, the trial penalty is hard to quantify without examining individual
cases and negotiations between prosecutors and defense lawyers.
That is because threats of harsher charges against defendants who reject plea
deals often are the most influential factor in the outcome of a case, but this
interplay is never reflected in official data.
“How many times is a mandatory sentence used as a chip in order to coerce a
plea? They don’t keep records,” said Senior Judge John L. Kane Jr. of United
States District Court in Denver, who believes that prosecutors have grown more
powerful than judges. But it is very common, he added. “That’s what the public
doesn’t see, and where the statistics become meaningless.”
But one result is obvious, he said: “We hardly have trials anymore.”
In 1977, the year Judge Kane was appointed to the bench, the ratio of guilty
pleas to criminal trial verdicts in federal district courts was a little more
than four to one; by last year, it was almost 32 to one.
Here in Florida, which has greatly toughened sentencing since the 1990s, felony
defendants who opt for trial now routinely face the prospect of higher charges
that mean prison terms 2, 5, or even 20 times as long as if they had pleaded
guilty. In many cases, the process is reversed, and stiffer charges are
dismissed in return for a plea.
Before new sentencing laws, the gap was narrower, and trials less risky, veteran
lawyers here say. The first thing Denis deVlaming, a prominent Florida criminal
defense lawyer, does with a new client is pull out a calculator to tally all the
additional punishments the prosecutor can add to figure the likely sentence if
the client is convicted at trial.
“They think I’m ready to charge them a fee, but I’m not,” he said. “I tell them
in Florida, it’s justice by mathematics.”
No matter how strongly defendants believe they are innocent, he said, they could
be taking dangerous risks by, for example, turning down a one-year plea bargain
when the prosecutor threatens additional charges that carry a mandatory sentence
10 times as long.
The transfer of power to prosecutors from judges has been so profound that an
important trial ritual has become in some measure a lie, Mr. deVlaming said —
the instructions judges read stating that the jury determines guilt or
innocence, and the judge a proper sentence. The latter part is no longer true
when mandatory minimums and, in many cases, sentencing guidelines apply, but
jurors often do not know that.
Legal scholars like Paul Cassell, a conservative former federal judge and
prosecutor who is now a law professor at the University of Utah, describe the
power shift as a zero-sum game.
“Judges have lost discretion, and that discretion has accumulated in the hands
of prosecutors, who now have the ultimate ability to shape the outcome,” Mr.
Cassell said. “With mandatory minimums and other sentencing enhancements out
there, prosecutors can often dictate the sentence that will be imposed.”
Without question, plea bargains benefit many defendants who have committed
crimes and receive lighter sentences than they might after trial. It also limits
cases that require considerable time and expense in court.
But many defendants who opt for trial effectively face more prison time for
rejecting a plea than for committing the alleged crime.
In Mr. Guthrie’s case, he was initially charged with aggravated battery on a
pregnant woman and false imprisonment. But after he rejected the plea bargains,
the prosecutor, more than a year later, filed the more serious charge of
first-degree felony kidnapping, based on the girlfriend’s accusation that he
pulled her by the arm inside her home and, once outside, grabbed her hair and
pulled her on her feet the distance of several parking spaces.
Nobody is suggesting that Mr. Guthrie, previously incarcerated for 18 months on
gun, assault and drug charges, is a sympathetic figure. According to a police
report, he punched and kicked his girlfriend, left her with a bruised and bloody
nose and a face that “appeared to be swollen,” and threatened to cut her stomach
with a knife.
The assistant state attorney handling the case, Frank Slavichak, did not return
calls. The chief investigator for the office, Spencer Mann, said Mr. Guthrie’s
choices dictated the course of the case.
But his lawyer, Craig DeThomasis, hired after the plea rejections, said he was
“plainly being punished for exercising his right to trial.” According to Mr.
Guthrie’s mother, Claudia Guthrie, the prosecutor told her son at a hearing this
spring that if he did not plead guilty and take a five-year sentence, higher
charges would be filed that mean “you’re going to get life.” Mr. Mann did not
dispute that some sort of warning of new charges was presented.
Mr. DeThomasis said that there was no evidence the girlfriend was pregnant, and
that she started the altercation by hitting him in the forehead with a pipe,
landing him in the jail infirmary for a week. He pointed out that she was
arrested in 2009 for attacking Mr. Guthrie after telling the police he had
struck her, leading police to say in a report that she had “changed her story
several times and could not explain her actions.” He also said she had a history
of involuntary hospitalizations, which she declined to address in a 110-page
sworn deposition in February.
Mr. Mann declined to comment on the girlfriend’s background but said none of it
affected the credibility of the case.
Judges in many cases can set aside verdicts that they believe are unsupported by
the evidence, but they generally have no power in mandatory-minimum cases to
reduce punishments below levels established through legislation.
While the Guthrie case may be a particularly stark example of how much power one
prosecutor can have over a defendant’s fate, many places have given district
attorneys similar influence.
“There have been so many laws passed in the various states that just about
always there is some enhancement available to the prosecutor that can be used as
leverage in negotiations,” said Scott Burns, executive director of the National
District Attorneys Association.
Mr. Burns, a former Utah prosecutor, did not dispute that sentencing-law changes
had made trial riskier for defendants and helped drive down the percentage of
cases taken to a verdict. He also acknowledged that the plea-bargain process
“clearly is coercive” when defendants face harsher or more numerous charges for
But he said plea bargains were also “extremely lenient in many instances because
prosecutors are taking several criminal acts off the table.” He emphasized that
lawmakers time and again have given prosecutors more leverage and said it was
“grossly unrealistic” to criticize district attorneys for enforcing laws that
they are duty-bound to uphold — even those that are ill-advised.
“There are a lot of criminal laws that are passed that we all kind of roll our
eyes at,” he said. “Sometimes they are just repetitive; sometimes they are
knee-jerk responses to some high-profile case, and therefore politically
Though national statistics are not readily available, the trend toward lower
trial rates is evident in a number of places.
The National Center for State Courts in Williamsburg, Va., found that the
percentage of felonies taken to trial in nine states with available data fell to
2.3 percent in 2009, from 8 percent in 1976.
The number of jury trials rose slightly, while nonjury trials, where a judge
decides guilt or innocence, fell sharply — all while caseloads nearly tripled.
The states account for more than a third of the American population, and most
have mandatory minimums or sentencing guidelines or have passed toughened
The Bureau of Justice Statistics, after studying partial data on state-court
felony prosecutions nationwide, found that from 1986 to 2006 the ratio of pleas
to trials nearly doubled.
The shift has been clearer in federal district courts. After tougher sentencing
laws were enacted in the 1980s, the percentage of criminal cases taken to trial
fell to less than 3 percent last year, from almost 15 percent, according to data
from the State University at Albany’s Sourcebook of Criminal Justice Statistics.
The explosion of immigration prosecutions, where trials are rare, skews the
numbers, but the trend is evident even when those cases are not included.
Nearly nine of every 10 cases ended in pleas last year, the federal data show,
while one in 12 were dismissed (the percentage of dismissed cases was
substantially higher a generation ago).
The number of acquittals dropped even further. Last year, there was only one
acquittal for every 212 guilty pleas or trial convictions in federal district
courts. Thirty years ago, the ratio was one for every 22.
Experts like Ronald Wright, a former federal prosecutor and now a professor of
law at Wake Forest University, say they fear that the steep decline in
acquittals stems partly from more defendants, who might have winnable cases,
deciding not to risk trials and reluctantly accepting plea bargains instead.
Some federal prosecutors worried that their power would be weakened by a 2005
Supreme Court ruling that made sentencing guidelines advisory only. But
academics say the ruling had much less effect than what some predicted as many
judges still largely follow the guidelines, and the ruling did not affect other
laws that have given prosecutors more power.
While sentencing changes allowed legislators in this state to take credit for
being tough on crime, they have also worked against their goal of trimming
prison costs, leaving prosecutors caught in the middle.
“There is a big disconnect,” said Bill Cervone, the state attorney in
Gainesville and the chief prosecutor in six counties that make up Florida’s
Eighth Judicial Circuit. “There is subtle and not so subtle pressure” to reduce
the numbers sent to prison.
Mr. Cervone, who was head of the Florida Prosecuting Attorneys Association,
added, “Our position is, ‘Please don’t pass any new crime laws while you are
also cutting our budgets.’ ” His budget has been cut 20 percent in four years.
The fiscal strains extend to judges, who face pressure to keep dockets moving.
Some do not appreciate defendants who refuse pleas and then lose a
time-consuming trial, he and other lawyers say.
“There are some judges who will punish you for going to trial,” Mr. Cervone
said. “Legally, you cannot impose a longer sentence on someone because they
exercised their right to trial,” he said, speaking of judges. “Factually, there
are ways to do it.”
In some cases, he added, he wished judges had more discretion, instead of having
to automatically impose an inflexible punishment.
So, too, do many judges faced with cases where legislatively mandated penalties
do not square with their idea of justice.
Like the one in Polk County, Fla. that began when Orville Wollard said he fired
his registered handgun into his living room wall to scare his daughter’s
boyfriend out of the house after he repeatedly threatened his family.
In Mr. Wollard’s view, he was protecting his family and did not try to hurt the
boyfriend, who was not hit, though the judge said the bullet missed him by
inches. But after Mr. Wollard turned down a plea offer of five years of felony
probation, prosecutors won a conviction two years ago for aggravated assault
with a firearm. Because the gun was fired, a mandatory-minimum law required a
At his sentencing, Mr. Wollard said he felt as if he were in “some banana
republic” and described the boyfriend as a violent drug dealer. But prosecutors
said the judge had “no discretion” because of the state law.
Reluctantly, the judge agreed. “If it weren’t for the mandatory minimum aspect
of this, I would use my discretion and impose some separate sentence,” he told
Mr. Wollard, adding that he was “duty bound” to impose 20 years.
Sentencing Shift Gives New Leverage to Prosecutors, NYT,
Differences in Federal and State Systems
January 14, 2011
The New York Times
By KIRK JOHNSON and CHARLIE SAVAGE
TUCSON — The investigation into the bloody attack here last
weekend is virtually certain to rank among the highest-profile criminal cases of
the year, with as many as 250 federal law enforcement officials and dozens of
sheriff’s deputies and detectives operating under blanket news media scrutiny.
But the paradox is that it has also turned out to be among the simplest of cases
to investigate, with the answers to most questions clear within hours.
Now, however, as the prosecution phase nears and both federal and state courts
pursue the case, complications will inevitably appear — beginning with the vast
number of potential witnesses, and further magnified by the sometimes sharply
different requirements of the two court systems.
The complications extend to the rules of evidence. Arizona state and federal
rules differ significantly on what defense attorneys are entitled to hear before
trial, and the federal and state teams could also head toward very different
outcomes as well if — as many legal experts expect — Jared L. Loughner’s lawyers
mount an insanity defense. Arizona, unlike federal law, does not allow a finding
of not guilty by reason of insanity. A defendant can only be found guilty, not
guilty or guilty but insane.
“This is not a whodunit — it’s pretty straightforward,” said the Pima County
attorney, Barbara LaWall, whose office is expected to file a state criminal case
in the coming weeks against Mr. Loughner, 22, on top of the federal charges
already filed. “It’s also very complicated.”
While the systems differ, the facts are clear-cut: Mr. Loughner, the accused
gunman, was caught in the act in front of many witnesses; after a brief search
for a man who turned out to be an innocent taxi driver, it became clear that
there was no conspiracy; records showed that Mr. Loughner bought the gun
legally; there were no interstate connections to explore, nor fugitives to hunt
down; the suspect’s Internet postings and papers at his home provided a roadmap
to his mental state and fixation on his apparent target, Representative
Gabrielle Giffords, who was having an event in the shopping center parking lot
where the shooting occurred.
There are human entanglements too. Ms. LaWall, in preparing to counter an
insanity defense on the state side, said in an interview that she may get help,
in a way, from one of the murder victims: John M. Roll, the chief federal judge
in Arizona, who had been a supervising prosecutor in the Pima County attorney’s
office decades ago, when she joined it as a young prosecutor.
“I learned to defend against the insanity defense from John Roll,” she said.
The disconnect between the relative simplicity of the investigation and its
extraordinary importance is also manifested in appearances.
After the attack, President Obama asked the F.B.I. director, Robert S. Mueller
III, to fly out to Tucson and personally oversee the effort. He did, and the
news conference he gave on Sunday sent a calming message to the public that the
government was in control of the matter.
But Mr. Mueller’s role was not to run the investigation. He flew back to
Washington on Monday, then returned briefly to Tucson later in the week. And
while he attended some briefings in Arizona as the inquiry unfolded, he also
spent time visiting victims in the hospital.
Instead, the investigation has been primarily run by Nathan Thomas Gray, the
special agent in charge of the F.B.I.’s Phoenix division, who has nearly three
decades of law enforcement experience and a long history of important bureau
positions. He is being helped by an assistant special agent in charge, Annette
Bartlett, who runs the division’s branch office in Tucson.
At the F.B.I. offices here in a sixth-floor suite downtown, people are working
at every available space, according to a description provided by two F.B.I.
agents, all revolving around a glossy dark brown conference table that agents
refer to as the main battle station, seating 18 to 20 people.
Phone lines and computer cables thread the room together, but there are also
voluminous stacks of paper, neatly organized, extending to chairs along the
walls. A projector illuminating the list of various leads to cover, referred to
as the virtual command center, hangs overhead.
Judy Clarke, Mr. Loughner’s lawyer, did not return a phone call or e-mail
requests for comment.
Even as the F.B.I. leads the investigation, however, the Pima County Sheriff’s
Department, five miles away in a low-rise complex hard between the County
Fairgrounds and an industrial park, has become the main source of information
about what has actually been uncovered. The discovery of a black bag on Thursday
in a Tucson neighborhood by a man walking his dog illuminated the odd trajectory
of news, evidence and turf that swirls around the case.
Investigators had been looking for the bag since being told by Mr. Loughner’s
father that he had confronted his son about it on Saturday, before the
shootings, and Jared Loughner ran into the desert carrying it. The recovery and
detail about its contents, 9-millimeter ammunition — the caliber used in the
attack — was the stuff of a sheriff’s press release. Later in the day a
sheriff’s spokesman said the bag had been turned over to the F.B.I., which had
not commented about it.
Federal officials say this dynamic is less the result of any culture clash than
of differing rules: under Justice Department regulations, they have far less
freedom to release information — even mug shots — than do local police operating
under Arizona’s open-government laws.
Meanwhile, the investigative tempo and the number of agents performing tasks for
it, officials say, has waxed and waned. It was a frenzy in the immediate
aftermath, as agents fanned out to search Mr. Loughner’s house and car,
interview witnesses at the hospital, research the gun, review surveillance tapes
and find his associates.
Much of that work was completed in the first few days.
“The basic set of facts of what happened in the case, I think within 48 hours
they had a really good handle on them,” said Special Agent Jason Pack, an F.B.I.
spokesman. “They identified the second person they were looking for and had a
pretty good idea that just one person was responsible for this particular act.”
As the week progressed, some technical work remained — notably, the laboratory
reconstruction of the crime scene, and efforts to scour Mr. Loughner’s computer,
using computer specialists, some of whom have been tapping in remotely from
elsewhere in the country.
But a second major wave of investigative activity resulted from the other major
remaining task: to speak with every person who crossed Mr. Loughner’s path, each
of whom seemed to suggest several other leads to run down — a ballooning effort
to make sure investigators did not miss anything important.
Already, agents have interviewed well over 100 people, with written reports then
collated and compiled into the F.B.I.’s Operational Response and Investigative
Online Network, or Orion, a computerized case management system that helps
agents fit pieces into the larger puzzle.
But those volumes of interviews could in turn be a major wrinkle on the state
side of the case because of what legal experts say are Arizona’s unusual
procedural rules that allow defense attorneys to interview, before trial, every
witness, except victims, that might be called to testify by the prosecution,
including F.B.I. agents.
“Every single witness on the prosecution side is likely to be questioned, other
than the victims,” said Prof. Gabriel J. Chin, who teaches criminal law and
procedure at the University of Arizona’s James E. Rogers College of Law in
Another variable that could enter the case — given the well-documented history
of odd and disruptive, if not threatening, behavior by Mr. Loughner, especially
at Pima Community College — is the question of his mental competency to stand
And there again the state-federal wrinkle could emerge. Arizona, Professor Chin
said, has a very sophisticated system designed to restore mental competency,
often through medical treatment, so that people can continue through the
criminal justice system. It was conceivable, he said, that that system could
come into play even if a federal court found Mr. Loughner unable or unfit to
Federal and State Systems Could Complicate Prosecution,
Defendant Ignited Fire,
Cheshire Prosecutor Tells Jury
October 1, 2010
The New York Times
By WILLIAM GLABERSON
NEW HAVEN — A prosecutor at the trial of one of the two men
accused of invading a home and murdering a woman and her two daughters contended
on Friday for the first time that it was the defendant, Steven J. Hayes, who
ignited the fire that killed the girls.
In his closing argument, the prosecutor, Michael Dearington, reminded jurors of
testimony that Mr. Hayes ran from the house following the other suspect, Joshua
“The last one out is the one who lights the fire,” Mr. Dearington said.
In a courtroom darkened so jurors could see slides of the victims and their home
in Cheshire, Conn., which was ruined by an arson fire after a home invasion,
rape and murder in 2007, Mr. Dearington repeatedly emphasized that no matter how
much of a role Mr. Komisarjevsky had in the crime, Mr. Hayes played a crucial
role and personally committed many of the acts involved.
Mr. Komisarjevsky has been a central focus of Mr. Hayes’s trial, though he has
not been in the courtroom.
The two men face the possibility of the death penalty. Mr. Komisarjevsky is to
be tried later.
Mr. Dearington, speaking unemotionally but somberly, reminded jurors that soon
after his arrest Mr. Hayes told an officer that “things got out of control.”
“It wasn’t ‘things,’ ” he continued. “It was two people acting together.”
Mr. Dearington also reminded the jurors that Mr. Hayes admitted to having had
sex with and then killing the mother of the family, Jennifer Hawke-Petit.
“Hayes had sex — having sex is not the right term — brutally raped” her, the
In his summation, Mr. Hayes’s lawyer, Thomas J. Ullmann, offered a defense that
seemed geared toward saving his client from the death penalty, but not
establishing his innocence, while putting the blame on Mr. Komisarjevsky.
Mr. Ullmann conceded many of the charges against his client, including those
that he raped and killed Ms. Hawke-Petit.
Speaking softly and occasionally shaking his head at the acts his client
committed, he also said Mr. Hayes had committed arson, burglary and larceny.
And Mr. Ullmann conceded that Mr. Hayes took part in the kidnapping of all four
members of the family, including the two girls, Michaela, 11, and Hayley, 17,
who died from smoke inhalation, and their father, Dr. William A. Petit Jr., who
was beaten but survived.
But Mr. Ullmann said that Mr. Komisarjevsky was the one controlling events; he
portrayed Mr. Hayes as someone who never could have committed the crimes.
He said Mr. Hayes had not known that Mr. Komisarjevsky would change what he said
had been their plan: break in, tie up the family, take money and get out.
Instead, Mr. Ullmann argued, Mr. Komisarjevsky changed the plan first by beating
Dr. Petit and then by raping Michaela.
“The psychopath in this case is Joshua Komisarjevsky, not Steven Hayes,” Mr.
“He should pay the price for what he did,” Mr. Ullmann argued about his client,
“but not for what he did not do.”
Connecticut law generally requires what lawyers call “death plus” for a crime to
warrant capital punishment.
As a result, Mr. Hayes could be sentenced to life in prison for killing Ms.
Hawke-Petit, but committing a murder during the course of the rape would be a
Mr. Ullmann argued that the rape of Ms. Hawke-Petit that Mr. Hayes confessed to
might have been separate from his later strangulation of her.
Killing Michaela would make Mr. Hayes eligible for the death penalty because it
is a capital offense under Connecticut law to kill a person who is younger than
Mr. Ullmann devoted a good deal of his remarks to arguing that Mr. Komisarjevsky
had a motive to kill the child: to cover up his sexual assault.
The 12 jurors and 2 remaining alternates were attentive to both arguments. In
keeping with the reserved tone of the lawyers, they appeared unemotional.
A few of them nodded as lawyers for both sides pieced together narratives from
what has often been disjointed, emotional testimony during the three-week trial.
Deliberations are to begin on Monday after the judge, Jon C. Blue of State
Superior Court, gives the jurors legal instructions.
If Mr. Hayes is convicted of capital offenses, the same jury will hear a
separate penalty phase of the trial.
The lawyers for both sides acknowledged the wrenching nature of the case.
Mr. Dearington displayed a family photograph of Ms. Hawke-Petit and her
daughters for the jury on a large screen. But he referred to other photographs
in evidence, like those of burned bodies.
He thanked the jurors for enduring “what has been indescribable evidence.”
Mr. Ullmann said the “the tragedy of this incident has affected us deeply — all
When he claimed that Mr. Hayes had killed Ms. Hawke-Petit “at the behest of” Mr.
Komisarjevsky, Mr. Hayes, who was slumping at the defense table, did not stir.
In the end, Mr. Dearington argued, it did not really matter precisely which
intruder took which action. Both were responsible, he said.
And, he said, both men had a problem because of the series of crimes they had
“The solution was to destroy the house,” the prosecutor said to the jurors,
“and, you may find, the people in it.”
Fire, Cheshire Prosecutor Tells Jury, NYT, 1.10.2010,
Prosecutors Detail Abuse
in Brooklyn Girl’s Last Days
September 4, 2010
The New York Times
By AL BAKER
Two days after the bruised, emaciated body of a 4-year-old girl was
discovered in a Brooklyn apartment, new information from officials emerged about
her life and death as her mother on Saturday made her first appearance in court
to face criminal charges.
In a criminal complaint, prosecutors outlined a fearsome litany of abuse that
they said the girl, Marchella Pierce, suffered in her final days at the hands of
her mother, Carlotta Brett-Pierce, 30. The girl, who had been plagued by severe
health problems since her birth on April 30, 2006, weighed 18 pounds when she
died, according to the complaint.
Ms. Brett-Pierce repeatedly struck the girl with a belt and a video box at their
home on Madison Street in Bedford-Stuyvesant, the complaint said, citing a
witness account. The mother lashed the girl to a bed with twine and forced her
“to take blue sleeping pills,” the complaint added.
The girl’s body was emaciated and covered with bruises on her head, torso and
limbs, and “ligature marks” were found on her feet, apparently from where her
mother affixed them to the bed’s footboard with twine, the complaint said.
In interviews with detectives, Ms. Brett-Pierce admitted tying the girl down on
Wednesday, “because the child was wild,” Tracey Downing, an assistant district
attorney, said at Ms. Brett-Pierce’s arraignment in Brooklyn Criminal Court.
“The mother said she tied the child because the child got up at night and ate
from the refrigerator and made a mess,” Ms. Downing said.
The abuse took place when, in the opinion of a physician for the medical
examiner’s office, the girl’s state of malnutrition “put her at a grave risk of
death,” the complaint said.
In an arraignment that lasted about 10 minutes, Ms. Brett-Pierce stood silently,
dressed in a hooded white sweat shirt, blue jeans and white sneakers. She
clasped her hands behind her back. At one point, she smiled and waved to her
mother, Loretta, and to her brother, Brian Colas, who sat together in the
courtroom. Her mother waved back.
The case is still under investigation by law enforcement and medical
authorities, as well as by the city’s Administration for Children’s Services,
which had been monitoring the family since at least November, officials said.
Ms. Brett-Pierce’s lawyer, George Sheinberg, pointed out that his client had not
been charged with homicide and said she should be released on her own
recognizance. But Judge Leonard P. Rienzi ordered Ms. Brett-Pierce held on
$300,000 bail, which appeared to visibly distress her relatives.
“My sister loved her kids,” Mr. Colas, 23, said outside of court after the
hearing. He said the proceeding was the first time he had ever heard allegations
that his sister had restrained or beaten her child.
“The media’s trying to make her into an animal,” added Mr. Colas, who the
prosecutor said lives in the apartment with Ms. Brett-Pierce.
After the arraignment, Mr. Sheinberg said, “There is nothing to defend until I
get the preliminary reports and autopsy reports.” He added: “The complaint can
say many things, but until we have evidence of what happened, if anything
happened, I have nothing before me. We don’t even have a medical examiner’s
report; we don’t have hospital reports.”
A spokeswoman for the child welfare agency said workers were still examining
records for information on the case.
An autopsy conducted Friday was inconclusive, and Ellen S. Borakove, spokeswoman
for the medical examiner’s office, said Saturday that further studies, including
forensic testing, investigations and an analysis of medical records, could take
a week or more.
The girl’s plight became public after her mother dialed 911 on Thursday morning,
saying her daughter was unresponsive when she tried to wake her. Ms.
Brett-Pierce told investigators her daughter had fallen down stairs, but the
bruises on her body were inconsistent with a fall, Ms. Downing said.
Ms. Brett-Pierce was charged with second-degree assault, endangering the welfare
of a child, unlawful imprisonment and reckless endangerment, according to the
complaint. Mr. Sheinberg said a grand jury hearing would probably take place on
The girl’s father, Tyrone Pierce, 30, who is separated from Ms. Brett-Pierce,
was present in court on Saturday but declined to comment.
The complaint said a broken video box “with what appeared to be blood on it” was
found at the family’s home. An official said a plastic container used to hold a
VCR cassette was found in the garbage at the home.
Ann Farmer and Daniel E. Slotnik contributed reporting.
Prosecutors Detail Abuse
in Brooklyn Girl’s Last Days, NYT, 4.9.2010,
Prosecutors Using Broad Definition
of Hate Crimes
June 22, 2010
The New York Times
By ANNE BARNARD
In the public’s imagination, the classic hate crime is an assault
born of animus against a particular ethnicity or sexual orientation, like the
case of the Long Island man convicted in April of killing an Ecuadorean
immigrant after hunting for Hispanics to beat up.
But in Queens since 2005, at least five people have been convicted of, or
pleaded guilty to, committing a very different kind of hate crime — singling out
elderly victims for nonviolent crimes like mortgage fraud because they believed
older people would be easy to deceive and might have substantial savings or home
And this month, Queens prosecutors charged two women with stealing more than
$31,000 from three elderly men they had befriended separately after noticing
them walking alone on Woodhaven Boulevard, using their credit to pay for dental
work and, in one case, asking for money to buy a kidney on the black market. The
women, Gina L. Miller, 39, and Sylvia Johns, 23, of Flushing, were charged with
grand larceny as a hate crime.
This approach, which is being closely watched by prosecutors around the state,
has won Queens prosecutors stiffer sentences, including prison for criminals who
could otherwise go free, even after draining an elderly person’s savings.
Without a hate crime, theft of less than $1 million carries no mandatory prison
time; with it, the thief must serve for a year and may face 25.
The legal thinking behind the novel method is that New York’s hate crimes
statute does not require prosecutors to prove defendants “hate” the group the
victim belongs to, merely that they commit the crime because of some belief,
correct or not, they hold about the group.
“Criminals that prey on the elderly, they love the elderly — this is their
source of wealth,” said Kristen A. Kane, a Queens assistant district attorney.
Led by Ms. Kane, who runs a specialized elder fraud unit, the efforts have made
the Queens district attorney, Richard A. Brown, a leader in finding new uses for
hate crime laws, prosecutors in other jurisdictions say. Scott Burns, executive
director of the National District Attorneys’ Association, said he had not heard
of another office using hate crimes as Queens does.
Neither had Kate Hogan, president of the state District Attorneys Association.
But she looked into the efforts after hearing about it from a reporter, called
it “an epiphany” and said she would suggest it to the group’s committee on best
practices. Some New York prosecutors, who asked not to be named because they did
not intend to criticize colleagues, said that while the approach intrigued them,
they were waiting to see if convictions were overturned on appeal before trying
The strategy has never been tested in appellate court; many of those charged
have pleaded guilty, waiving their right to appeal. But Queens trial judges have
upheld it against defense lawyers who argue that the hate crime charges are
Some people concerned about the prevalence of more classically understood
bigotry say that new uses of the hate crime law could ultimately dilute its
power. The main purpose of the law, said Steven Freeman, legal affairs director
at the Anti-Defamation League, is to stiffen penalties for crimes that inflict
additional fear on marginalized groups like ethnic or religious minorities or
gays; tougher penalties for crimes against the elderly, pregnant women or
children can be imposed with separate “vulnerable victims” laws.
New York’s law is ambiguous. It says prosecutors must prove only that a crime
was committed “because of a belief or perception regarding the race, color,
national origin, ancestry, gender, religion, religious practice, age, disability
or sexual orientation of a person.”
But the language that opens the legislation clearly focuses on hate: “Crimes
motivated by invidious hatred toward particular groups not only harm individual
victims but send a powerful message of intolerance and discrimination to all
members of the group to which the victim belongs.”
For Ms. Kane, there is no debate. “We don’t have a whole lot of tools,” she
said. “We should utilize what the legislature has given us.”
It all started with Sunshine. That was the nickname of Nancy Jace, who bilked
five elderly men out of $250,000, pretending to romance them and persuading them
to pay for fictitious family emergencies. Ms. Kane was frustrated when Ms. Jace,
37, pleaded guilty in 2004 and served just six months in jail.
When a similar defendant came along, Ms. Kane had an idea. Shirley Miller, 43,
who hoodwinked four elderly men out of $500,000, became the first New Yorker
charged with grand larceny as a hate crime against the elderly. She pleaded
guilty and served four months, but would have faced one to three years if she
had not paid $175,000 in restitution. In 2006, Sherry Kaslov, 30, pleaded guilty
to similar charges; she served four months and was hit with 10 years of
Those sentences may not sound huge, Ms. Kane said, but the hate charge gave her
extra leverage in plea bargaining. By winning felony pleas and probation,
prosecutors ensured that repeat offenders would receive strong sentences.
The cases kept coming. In 2006, Natasha Marks, 20, was convicted of swindling
more than $1 million from an 86-year-old man as a hate crime, including taking
out a $550,000 mortgage on his house; a fugitive, she faces two to six years.
Wando Delmaro was sentenced to 10 years after pleading guilty to a hate crime:
posing as a water-company employee and distracting elderly people while
accomplices burglarized them.
The next year in Brooklyn, a high-profile case bolstered Ms. Kane. Michael
Sandy, a gay man, died after robbers chased him into traffic. One defendant
testified that he was gay. The judge ruled that he could still be charged with a
hate crime since prosecutors said he went after Mr. Sandy believing gay men were
easier to rob. Jurors convicted him but later complained that they did not think
the hate crime applied.
Then there was Alexandra Gilmore, 37, who took $800,000 from Artee McKoy, 93, a
retired barber and old friend of her late father who had Alzheimer’s disease.
She stole his house and tricked him into refinancing another, taking the money
and eventually sending both properties into foreclosure. She pleaded guilty last
year and is serving two to six years.
Maria Thompson, Mr. McKoy’s daughter, wanted Ms. Gilmore to get even more time.
Her father died in 2008, and she is still struggling in court to get control of
his estate. In the meantime, the house where she grew up is foreclosed and
padlocked. She cannot enter to sort her father’s possessions or find a
photograph to remember him by. She has no idea if she and her four siblings will
ultimately inherit any equity in the home, which had been fully paid off before
Mr. McKoy’s own kindness inspired the scheme, said Ms. Thompson, 69, who works
as a greeter at Wal-Mart. When Ms. Gilmore’s father died, he lent her money to
avoid foreclosure of her own house, revealing that he had savings, “and then she
ripped him off,” Ms. Thompson said.
Ms. Kane got another crack at Ms. Jace. She is now serving 8 to 24 years for
defrauding a series of landlords, a sentence stiffened by her plea to the
earlier hate crime. Ms. Kane did not charge one this time.
“Most victims were elderly,” she said a bit ruefully, “but not all.”
Prosecutors Using Broad
Definition of Hate Crimes,
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