History > 2006 > USA > State Justice (VI)

Mr. Brown,

at the Elmira Correctional Facility,

hopes to be freed based on new DNA evidence

in the 1991 murder of Sabina Kulakowski.

Tyler Hicks/The New York Times

 In Quest for a Killer, an Inmate Finds Vindication        NYT        21.12.2006
http://www.nytimes.com/2006/12/21/nyregion/21brown.html

No Charges Against Kan. Abortion Doctor

December 28, 2006
By THE ASSOCIATED PRESS
Filed at 12:07 p.m. ET
The New York Times

WICHITA, Kan. (AP) -- Kansas Attorney General Phill Kline spent more than two years investigating a nationally known abortion provider, but he'll likely leave office next month with little to show for it.

A judge on Wednesday refused to reinstate the 30 criminal charges Kline filed against Dr. George Tiller, and Kline's successor said Thursday that he won't keep the special prosecutor Kline appointed to the case.

Democrat Paul Morrison, who defeated Kline in November and takes office as attorney general on Jan. 8, would not completely rule out an investigation into Tiller.

But he told The Associated Press that any investigation won't involve Kline's special prosecutor. Kline had named Wichita attorney Don McKinney to the case on Wednesday, saying that doing so would keep politics out of the investigation. But McKinney, who had campaigned for Kline, is viewed as a strong anti-abortion activist.

''He is extraordinarily political and, in my opinion, would absolutely not present any kind of independent perspective,'' Morrison said Thursday.

Kline had waged a successful two-year legal battle to get patient records from Tiller and other abortion providers. He filed charges against Tiller on Dec. 21, accusing the doctor of illegally using the mental health concerns of patients to justify late-term abortions and of failing to properly report procedures to the state.

Sedgwick County District Judge Paul W. Clark dismissed the charges on Dec. 22, citing a jurisdiction problem, and then refused this week to reinstate them.

Tiller is among the few doctors in the nation who perform late-term abortions. His clinic was bombed in 1985, and a protester shot him in both arms eight years later.

    No Charges Against Kan. Abortion Doctor, NYT, 28.12.2006, http://www.nytimes.com/aponline/us/AP-Kansas-Abortion-Charges.html

Parents found guilty in caged kids case

Updated 12/22/2006 11:51 AM ET
AP
USA Today

NORWALK, Ohio (AP) — A couple accused of forcing some of their 11 adopted special-needs children to sleep in chicken wire cages were convicted Friday of endangering and abuse.

A jury found Michael Gravelle, 57, and his wife, Sharen, 58, each guilty of four felony counts of child endangering, two misdemeanor counts of child endangering and five misdemeanor counts of child abuse. Each was acquitted of 13 other charges.

The parents argued during their three-week trial that they needed to keep some of the youngsters in enclosed beds rigged with alarms to protect them from themselves and each other and stop them from wandering at night.

The couple face one to five years in prison and a maximum fine of $10,000 for each felony count. The misdemeanor penalties carry no jail time.

During the trial, their defense included testimony from a social worker and others who said they never witnessed abuse and said the children's behavior improved because of the cages, which were painted bright blues and reds.

Prosecutors said the couple was cruel. Witnesses including the sheriff and some of the children who said the cages were urine-stained and lacked bedding, including pillows and mattresses.

One Gravelle child testified he was forced to live in a bathroom for 81 days, sleeping in a bathtub because of a bed-wetting problem. The Gravelles' attorneys denied those charges, saying the boy exaggerated the length of his bathroom stay, and an expert for the defense testified that the technique helped the boy.

Other children testified during the trial that the Gravelles hit them with a wooden paddle, made them write out Bible verses as punishment and dunked the head of a girl who had Down Syndrome in a toilet.

Some of the youngsters testified that they were not forced to sleep in cages and missed their adoptive parents, drawing tears from some jurors.

    Parents found guilty in caged kids case, UT, 22.12.2006, http://www.usatoday.com/news/nation/2006-12-22-caged-kids_x.htm

In Quest for a Killer, an Inmate Finds Vindication

December 21, 2006
The New York Times
By FERNANDA SANTOS

AUBURN, N.Y., Dec. 20 — The day before Christmas three years ago, Inmate No. 92B-0448 sat in front of a computer at the Elmira Correctional Facility and typed a harsh letter to the man he thought should have been in prison in his place.

“Witnesses can commit perjury, judges can be fooled and juries can make mistakes,” the letter read. “When it comes to DNA testing, there’s no mistakes. DNA is GOD’s creation and GOD makes no mistakes.”

The inmate, Roy Brown, was serving 25 years to life for the 1991 murder of a social worker, Sabina Kulakowski, who was found naked, beaten, bitten and strangled outside the farmhouse where she lived in Aurelius, a town of 3,000 on the northern tip of Cayuga Lake.

Mr. Brown, a self-professed hard drinker who made a living at the time selling magazine subscriptions in Syracuse, 30 miles to the east, did not know Ms. Kulakowski. Just six days before her killing, though, he had been released from jail, where he spent eight months for making threatening phone calls to another social worker at the agency where she worked.

Nor did Mr. Brown know the man to whom he was writing, Barry Bench. It was only that year, 2003, that Mr. Brown had uncovered witness statements that pointed toward Mr. Bench, whose brother had been the victim’s boyfriend.

Five days after receiving Mr. Brown’s accusatory letter, Mr. Bench committed suicide by jumping in front of an Amtrak train.

Two weeks ago, DNA tests matched a sample provided by Mr. Bench’s daughter to saliva stains on a bloodied nightshirt found at the crime scene, and now Mr. Brown is scheduled to appear in court on Thursday to ask the judge who presided over his original trial to vacate the conviction.

“I used the old hunting technique here: if there’s a killer in the bush, I’m going to flush him out,” Mr. Brown, 46, said in a telephone interview from prison. “I know that they can keep me in jail after I show up in court. But the world will know that I’m innocent, and that was my main goal.”

Mr. Brown’s lawyers at the Innocence Project, a nonprofit legal clinic that has helped exonerate 188 people since 1989, said his case stood out because it was the first in which the convicted man essentially investigated and solved the crime himself.

The lawyers, Peter Neufeld and Nina Morrison, have also questioned the reliability of forensic evidence in the case, since the conviction rested largely on expert testimony linking bite marks found on Ms. Kulakowski’s body to Mr. Brown even though they showed indentations from six upper teeth and he had four.

The Cayuga County district attorney, James B. Vargason, did not respond to numerous requests for comment on Wednesday, but Mr. Brown’s lawyers said they expected him to oppose their motion. Mr. Vargason took office two weeks before Mr. Brown’s trial and tried the case personally; he has since used it to build a reputation as a get-tough prosecutor.

Help came to Mr. Brown from an unlikely source: Mr. Bench’s 19-year-old daughter, Katherine Eckstadt, who volunteered a sample of her DNA. A private investigator had tracked her down through her mother, who had told sheriff’s deputies in 1991 that Mr. Bench acted suspiciously the night of the murder.

The recent DNA tests have excluded Mr. Brown as the source of the saliva on Ms. Kulakowski’s nightshirt and showed half of the DNA profile matched Ms. Eckstadt’s, suggesting the saliva could have come from her father.

“I had to know the truth,” Ms. Eckstadt said last week in an interview in the basement of a Baptist church in suburban Syracuse where her mother works as a secretary. “How was I supposed to live knowing that I could have helped Roy Brown, yet I let him rot in prison?”

Mr. Brown was arrested on May 26, 1991, three days after Ms. Kulakowski’s battered body was found on a dirt road about 300 yards from the farmhouse, which had been set afire, investigators said, possibly by the killer in an attempt to cover his tracks. Mr. Brown had just been released from jail for making threatening calls to a county Social Services Department worker who had ordered his 7-year-old daughter removed from his home. Though Ms. Kulakowski also worked for the agency, she had no involvement in the case.

Mr. Bench, on the other hand, knew the victim well. His older brother, Ronald, had been romantically involved with Ms. Kulakowski for 17 years and had lived with her at the farmhouse, which their parents had given to Ronald. The couple separated in the spring of 1991, and Ronald Bench moved to Auburn, but he allowed Ms. Kulakowski, who was 49, to continue living at the farm.

“For a while, Barry was angry at his brother because he felt that he should have been the one to own the farm,” said Tamara Eckstadt, Katherine’s mother, who lived with Barry Bench for 13 years.

Mrs. Eckstadt said that Barry Bench did not seem to dislike Ms. Kulakowski, but that their relationship was “antagonistic,” in part because of the farm.

The night of Ms. Kulakowski’s murder, Barry Bench left his house at 5 p.m., after a fight with Mrs. Eckstadt, according to his and her statements to investigators at the time. Mr. Bench, a volunteer firefighter, went to a bar, carrying his fire monitor, which he rarely shut off. He left the bar at 12:30 a.m., their statements said. Mrs. Eckstadt told the police that he arrived home, drunk, about an hour later, even though the bar was just a half-mile from where they lived.

She said Mr. Bench never plugged the fire monitor back in after arriving home, which was unusual.

Though the farmhouse began to burn around the time Mr. Bench was unaccounted for, investigators did not question his whereabouts, instead focusing within days on Mr. Brown.

At the trial in 1992, Mr. Vargason argued that Mr. Brown had killed Ms. Kulakowski in a fit of rage against the social services agency. The case rested largely on testimony by Dr. Edward Mofson that Mr. Brown could have left the bite marks on Ms. Kulakowski’s body despite the discrepancy in the number of upper teeth. He said that Mr. Brown could have twisted her skin while biting her, therefore filling the gaps that would have been left by his missing teeth.

The defense’s lone witness, Dr. Homer Campbell, a forensic odontologist from New Mexico who has testified about bite-mark evidence in numerous criminal trials, sharply rebutted Dr. Mofson’s assertion, but it was not enough to convince the jurors. Mr. Brown was convicted of second-degree murder after less than six hours of deliberation.

Ms. Kulakowski’s parents and two sisters have all died. Thomas Murray, her brother-in-law, said in a telephone interview from his home in Omaha, Neb., that the family had never heard of Mr. Brown before his arrest, and that he was unaware of the evidence pointing toward Mr. Bench.

“Sabina touched the lives of many people through her work, and we could never understand why someone would kill her,” Mr. Murray said. “When that happened, we didn’t have any reason to suspect anyone in the Bench family, or anybody else, for that matter.”

Ronald Bench, a real estate broker in Auburn, refused to comment when reached on his cellphone Wednesday. “I don’t have anything to say,” he said.

The results of the DNA tests came back on Dec. 6; Mr. Brown has said that he has wondered since then what might have been had he laid his hands on Mrs. Eckstadt’s statement — and others mentioning the unaccounted hour in Mr. Bench’s night — at the time. “I could have showed them to the jury,” he said.

One of Mr. Brown’s original lawyers, Katy Karlovitz, said that when asked about the statements after Mr. Brown uncovered them in 2003, prosecutors said they had turned them over before trial. But Ms. Karlovitz said she never received them, and there are no records of the statements in a list of documents that is included in the court file.

Mr. Brown learned about the statements only because of a fire at his stepfather’s house in 2003 that destroyed his trial records. He filed a request under Freedom of Information laws seeking new copies, and among the documents he received were statements from Mrs. Eckstadt, Mr. Bench and two of their neighbors.

Mr. Brown, a father of four, has been married four times, twice while in prison, where he teaches guitar and helps run counseling sessions. He has liver problems that leave his skin a pale yellow. He has never ceased to profess his innocence.

But his three appeals were denied, along with his 1995 request for DNA tests on the nightshirt. He took to drafting motions from prison, calling his stepfather, William Murphy, several times a week for help.

“I’ve lived from phone call to phone call, from one disappointment to another,” Mr. Murphy, 63, said in an interview from his home in Boonville, N.Y., southwest of the Adirondack Park. “Sometimes I got discouraged, but Roy always came back with another motion, with another way out. He never let me give up.”

At the same time, Mr. Brown’s sister, Billie Jo Kuczynski, put together a petition asking people to support his request for DNA tests on the nightshirt. She distributed 36,000 copies around the state, even tucking them on car windshields at the Cayuga County courthouse.

In January 2005, the Innocence Project joined the case, eventually filing the motion for the DNA testing that ultimately led to the match with Mr. Bench’s daughter.

“Whatever happens, I’ve already proven my innocence; I’m already free,” Mr. Brown said. “I may be in prison, but my spirit is free.”

    In Quest for a Killer, an Inmate Finds Vindication, NYT, 21.12.2006, http://www.nytimes.com/2006/12/21/nyregion/21brown.html

Small-Town Judge’s Personal Justice Stirs Concern

December 14, 2006
The New York Times
By WILLIAM GLABERSON

KEESEVILLE, N.Y. — Like many teenagers in this bleak old mill village near Lake Champlain, Michael C. Burrell had been in trouble before. But when an attempted assault case landed him at age 19 in the courtroom of the village justice, the experience was unlike anything he had faced before.

He said the justice, George J. Head, insisted that they meet each week outside court, in what people around here call his “judge’s probation” program.

There is no such thing as judge’s probation, and private sessions between a judge and a defendant facing jail violate rules of judicial conduct.

But Justice Head seems to have stretched the rules in a number of ways. When he sentenced young men to regular probation, he sometimes drove them to their appointments. One young man was discovered driving the justice’s car, and others say they met with the justice at his home. One said he even wound up moving in for eight months.

“He’s the judge,” said Mr. Burrell, who said he met privately with Justice Head several times last year. “He tells me to do something, I’m going to do it.”

One of the bedrock principles of American law is that judges are supposed to be impartial toward the people who come before them. They are to be decision makers, not participants, in cases. They are not to befriend defendants, and are barred from meeting with them outside the presence of their lawyers or prosecutors, or outside court. At the very least, they are required to avoid any personal involvement that makes it appear they have taken sides.

But bedrock principles have a way of getting lost in New York’s town and village courts, a sprawling world of more than 1,250 small courtrooms. Over the decades justices have illegally jailed people, threatened enemies, protected friends and made grievous legal errors, with little supervision or penalty. The law often counts for little, because three-quarters of the justices are not lawyers. Now the system is under scrutiny by state officials, who are holding hearings and taking steps to fix some of its most glaring flaws.

What has played out in this remote village in northeastern New York provides one more startling look at what can happen when meager training mixes with plenty of unchecked power.

“Judge Head rules Keeseville, and God help you if you oppose him,” said Diane Webster-Brady, the lawyer who handled Mr. Burrell’s case.

‘It Wasn’t Professional’

Justice Head, 72, a retired state trooper who has been a justice in the area for 15 years, declined repeated requests for an interview. But lawyers say he has told them over the years that he can supervise Keeseville’s wayward youth better than county probation officers.

In interviews and documents, several young men — some of them high school dropouts, adrift from their families, and some with serious police records — said he seemed to offer relief from their poverty and troubled lives, providing shelter, food, the use of his car, or even tuition or lawyers’ fees.

But most said they felt unsettled or threatened by the control the justice had over them, and by his unusual version of probation. They described regular meetings — once a week or more — at which the justice would check on their progress, with the suggestion that if they went along, they would be treated well, but that if they did not, there would be trouble.

Sometimes, they said, the meetings were in the house of the justice, who is long separated from his wife. Sometimes they were in the justice’s small office off the village courtroom, where Mr. Burrell said he met with Justice Head last year.

“It was me and him talking,” said Mr. Burrell, who had run away from a substance abuse program where Justice Head sent him after several arrests in connection with attempted assault and other crimes. Mr. Burrell said the justice discussed his own background, and asked about his.

“It wasn’t professional,” he said. “I think he crossed the boundaries.”

Other people noticed the unorthodox meetings, too. More than a dozen current or former prosecutors, lawyers and officials in the area said they were aware of the justice’s out-of-court dealings with defendants, and many said they questioned the propriety of his actions.

In January, one prosecutor filed a motion to transfer a drunken-driving case out of the village court because the 20-year-old driver had been at the wheel of Justice Head’s car, with its official license plates. After the arrest, the prosecutor wrote, the young man was “picked up by the Honorable George Head from the police station.”

Still, the lawyers and officials said they could not publicly challenge the justice because of his power here. One lawyer said he had reluctantly agreed to “judge’s probation” for a client because it won him a better deal.

The Clinton County probation director, David M. Marcoux, acknowledged he had heard that Justice Head accompanied some young defendants to their probation appointments. And when asked, he said that no other judge in the county did so. But he would not say any more about Justice Head or his special probation program.

“He’s still a sitting judge in the county,” Mr. Marcoux said, “and it’s nothing I feel I should make any comment on.”

Yet people are being asked to speak up by the state agency that investigates misconduct by judges. In recent weeks, the Commission on Judicial Conduct has been hearing testimony about Justice Head from local officials and some of the young men. Commission officials would not discuss the status of their investigation.

Meanwhile, state judicial officials have begun a series of sweeping changes to the entire system of town and village courts, which are also known as justice courts. On Thursday, two committees of the State Assembly plan to hold a joint hearing into whether the courts should be overhauled even further.

Several legal experts said in interviews that Justice Head’s methods appeared to be the kind of conduct that made people question the system’s fairness and professionalism. Judges in New York have been disciplined for inviting defendants to their homes, or meeting privately with parties in a legal case.

Ann E. Pfeiffer, a former Rochester City Court judge who teaches at Syracuse Law School, said it was not proper for a judge to take on the role of a social worker, roommate, confidant or friend. “A judge, particularly in a small town, should be as detached as he can be,” she said.

A Hard Place to Grow Up

Keeseville, with a population of 1,850, is certainly small, the kind of remote place where critics of the justice courts say it may be most difficult for state judiciary officials to monitor the justices. It has a few churches, not many jobs, the hulk of an old Grand Union on desolate Front Street and a changing cast of aimless teenagers who say they feel trapped in a place that seems forgotten.

The village, which has a reputation for drug crimes, bar fights and beatings, can be a hard place to grow up. One recent Sunday, two young men were hit by a car on Main Street about 3 a.m., and one was killed. Witnesses told the police that the driver, 28, was drunk. When the two men were hit, they were rolling around in the road, fighting.

Seven years ago, Mr. Head, a jowly, broad-shouldered man, was elected village justice, after eight years as a town justice in the area. He had attended college but did not graduate, according to a document he filed with court officials. He has no law degree; the only training that New York has given its justices for decades is six days of initial schooling and an annual refresher course.

Keeseville’s mayor, Mark J. Whitney, said Justice Head had “performed well for us.”

But Theodore Carter had a different impression. A high school dropout with a long arrest record, he ended up before Justice Head two years ago, when he was 18. He had tried to beat up another teenager, he said, and because he could not make bail, he spent 20 days in jail.

When he was released to attend Keeseville’s regular afternoon court session, he said, Justice Head told him that to avoid more jail time, he would have to serve judge’s probation and chop wood for the village.

“I didn’t think it was any big thing,” Mr. Carter said, “until he told me I’d have to go meet with him.” Justice Head set the location: his office in the old school building that Keeseville uses as a community center. “He told me to meet him at 8:30 at night,” Mr. Carter said.

When he arrived, the rooms all around the office were empty. The halls were dark. “Nobody was there except for the judge,” Mr. Carter said. “It made me feel uncomfortable.”

Justice Head, he said, talked about himself and gave Mr. Carter his home phone number to call at any hour of the day or night. “It was kind of awkward,” Mr. Carter said.

In later meetings, Mr. Carter said, he seemed to disappoint Justice Head because he did not reveal much about himself. Eventually, in a private session two months ago, he said, the justice adopted a harsh tone, taking three folders out of a drawer — the records, Mr. Carter said, of three harassment charges against him that had not moved forward.

The justice, he said, seemed to hint that he could activate the cases. Asked what he made of that, Mr. Carter said, “I think he means he’s going to hold it over me.”

Visiting the Justice

For another young man, the meetings started the same way: In court, Justice Head declared that he would see him weekly. But the location would be even more private.

“Judge Head,” the man said, “said he wanted to see me at his house the following day.”

The young man, an unemployed laborer who is now 24, agreed to be interviewed for this article on the condition that his name not be used, saying he was embarrassed about receiving favored treatment from the justice.

His years of interacting with Justice Head, he said, began when he was 18 and facing a petty larceny charge, having already served jail time for sexual abuse. They would meet, he said, at the justice’s home or office, almost always alone.

“At first he didn’t want nobody knowing about it,” the man said. But eventually, he said, people saw him at “George’s house” or driving “George’s car.”

Later, he said, Justice Head bought him a used car, and once paid for a lawyer when he was charged with a sex crime in another town.

“I just didn’t want to go back to jail,” the man said, explaining his dealings with the justice. “When you are at the lowest you can be, who else do you want to befriend you than a judge?”

Another young man, then 17, said the justice invited him home the night before he was to be sentenced to community service, according to notes of a 2005 statement he gave to a law enforcement official, who shared the notes with The New York Times. The man declined to be interviewed for this article, but he told the official that the justice tried to have him do work at the house as a form of community service.

And one young defendant described a deal that went even further.

“We had a meeting,” the man, Dennis C. Valentin, recalled in a recent interview. “He was going to help me study, and he offered me the place to stay in his mansion.”

Mr. Valentin, 25, said his life was in bad shape back then, in 2001. A high school dropout, 19 at the time, he had grown up in a broken, sometimes violent home, he said. He had been arrested after a drunken street brawl, but had run away at first instead of facing the charges.

He turned himself in to Justice Head, who he said got him talking about his ambitions: to get into the Army, or otherwise get out of Keeseville. “It’s just a rough little town,” Mr. Valentin said.

He jumped at the justice’s offer. “I pretty much went to stay with him,” he said. The justice approved a plea deal: instead of jail, Mr. Valentin would get a conditional discharge that would free him if he stayed out of trouble for six months.

Already living in the justice’s house, Mr. Valentin said, were a 21-year-old man whom the justice sometimes drove to Alcoholics Anonymous meetings, and a man in his late 20s who also had gotten in trouble with the law.

That older man had lived in the house for years, and the justice had helped pay his parochial school tuition, Mr. Valentin said.

Mr. Valentin said he stayed for eight months, with free room and board. “He pretty much tried to get me on the right track,” he said.

The effort apparently did not work. Two years later, Mr. Valentin was arrested again — this time, he said, for statutory rape. He is now serving six years of probation, ordered by another judge.

But he remains grateful for his time in Justice Head’s home.

“It was a nice place to be,” he said. “The judge is really smart. You can sit down and watch ‘Jeopardy’ on TV, and he is going to get practically every question.”

    Small-Town Judge’s Personal Justice Stirs Concern, NYT, 14.12.2006, http://www.nytimes.com/2006/12/14/nyregion/14courts.html?hp&ex=1166158800&en=fe3c9a6838c497f1&ei=5094&partner=homepage

Boy Takes Stand in 'Caged Kids' Case

December 6, 2006
By THE ASSOCIATED PRESS
Filed at 2:26 p.m. ET
The New York Times

NORWALK, Ohio (AP) -- A boy who had been adopted by the couple on trial for caging some of their children testified Wednesday that he did not like the enclosure that he slept in because it was small and hot.

The boy, the first of several of the adopted children expected to testify in the trial of Michael and Sharen Gravelle, also told the jury that he was sent to a cage for weeks at a time for punishment.

''Mine was really small. In the summertime it was really hot in there. We said we liked them because it made us safe. But we really didn't like them. We said it to make them (Gravelles) happy,'' the boy said.

The Gravelles deny abusing some of the 11 adopted, special-needs children in their care and have said they had to keep the youngsters in enclosed beds to protect them. The children suffered from problems including fetal alcohol syndrome and eating disorders.

Before the boy testified Wednesday, two women took the witness stand saying youngsters they cared for lied, stole and misbehaved after they had been removed from the Gravelles' home.

Anita Thorne said she received two of the children in April and both left in November because she had to struggle to care for them.

She described a girl as violent. ''She hit me in the back of the head while I was driving because she couldn't get her way. That did it for me. She could have killed us both,'' Thorne said.

Debbie Nottke, who took in three other Gravelle children, said one boy is no longer in her care because of worsening behavior. However, she said she still has a boy who prosecutors say slept in a bathtub for weeks at the Gravelle home because of a bed-wetting problem, saying the youngster has never wet the bed in her home, is on the merit roll at school and excels at sports.

The Gravelles are charged with 16 counts of felony child endangering and eight misdemeanor child endangering charges. If convicted, they face one to five years in prison and a maximum fine of $10,000 for each felony count.

    Boy Takes Stand in 'Caged Kids' Case, NYT, 6.12.2006; http://www.nytimes.com/aponline/us/AP-Caged-Children.html