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History > 2012 > USA > States > Justice (I)



Alabama to End

Isolation of Inmates With H.I.V.


December 21, 2012
The New York Times


A federal judge on Friday ordered Alabama to stop isolating prisoners with H.I.V.

Alabama is one of two states, along with South Carolina, where H.I.V.-positive inmates are housed in separate prisons, away from other inmates, in an attempt to reduce medical costs and stop the spread of the virus, which causes AIDS.

Judge Myron H. Thompson of the Middle District of Alabama ruled in favor of a group of inmates who argued in a class-action lawsuit that they had been stigmatized and denied equal access to educational programs. The judge called the state’s policy “an unnecessary tool for preventing the transmission of H.I.V.” but “an effective one for humiliating and isolating prisoners living with the disease.”

After the AIDS epidemic of the 1980s, many states, including New York, quarantined H.I.V.-positive prisoners to prevent the virus from spreading through sexual contact or through blood when inmates tattooed one another. But most states ended the practice voluntarily as powerful antiretroviral drugs reduced the risk of transmission.

In Alabama, inmates are tested for H.I.V. when they enter prison. About 250 of the state’s 26,400 inmates have tested positive. They are housed in special dormitories at two prisons: one for men and one for women. No inmates have developed AIDS, the state says.

H.I.V.-positive inmates are treated differently from those with other viruses like hepatitis B and C, which are far more infectious, according to the World Health Organization. Inmates with H.I.V. are barred from eating in the cafeteria, working around food, enrolling in certain educational programs or transferring to prisons near their families.

Prisoners have been trying to overturn the policy for more than two decades. In 1995, a federal court upheld Alabama’s policy. Inmates filed the latest lawsuit last year.

“Today’s decision is historic,” said Margaret Winter, the associate director of the National Prison Project of the American Civil Liberties Union, which represented the inmates. “It spells an end to a segregation policy that has inflicted needless misery on Alabama prisoners with H.I.V. and their families.”

Brian Corbett, a spokesman for the Alabama Department of Corrections, said the state is “not prejudiced against H.I.V.-positive inmates” and has “worked hard over the years to improve their health care, living conditions and their activities.”

“We will continue our review of the court’s opinion and determine our next course of action in a timely manner,” he wrote.

During a monthlong trial in September, lawyers for the department argued that the policy improved the treatment of H.I.V.-positive inmates. Fewer doctors are needed if specialists in H.I.V. focus on 2 of the 29 state’s prisons.

The state spends an average of $22,000 per year on treating individual H.I.V.-positive inmates. The total is more than the cost of medicine for all other inmates, said Bill Lunsford, a lawyer for the Corrections Department.

South Carolina has also faced legal scrutiny. In 2010, the Justice Department notified the state that it was investigating the policy and might sue to overturn it.

    Alabama to End Isolation of Inmates With H.I.V., NYT, 21.12.2012,






Man, 52,

Is Convicted as a Juvenile in a 1976 Murder,

Creating a Legal Tangle


December 21, 2012
The New York Times


ELIZABETH, N.J. — By all other measures it would be a routine case of the “C.S.I.” age: a detective working a cold case alights on a stray clue, and running a DNA sample, finds a man he believes is the killer. Thirty-six years after the crime, the man is brought to trial and convicted of murder.

But this 52-year-old man, now soft around the middle and wrinkled along the brow, was 15 at the time of the murder. And so, in a twist the judge called “extraordinary,” Carlton Franklin was tried as a juvenile.

His case was heard here this month in family, not criminal, court. And Thursday, after Judge Robert Kirsch found that he had killed Lena Triano — bludgeoning, raping, and stabbing — Mr. Franklin was not technically declared guilty, but rather, as “adjudicated delinquent.”

Now comes the tricky issue of how to punish him, which the judge will decide in January: Will he be sentenced according to a juvenile code that emphasizes rehabilitation over punishment, focusing on “wholesome mental and physical development”? Or will the judge look at Mr. Franklin’s life in the intervening decades, which have included 17 years in prison, but also a steady job and no criminal record in the 14 years since he was released?

Will the length of his sentence — or disposition, as it is called in juvenile matters — be dictated by laws in place in 1976, the year of the crime, or by current laws? Tried in a juvenile court, can he be held in a grown-up prison?

Even lawyers handling the case are unsure. “I don’t even think I can answer, because it’s so unusual,” said Mr. Franklin’s lawyer, Edward P. Bisichio. “I’ve never seen it before.”

The nation is in the midst of a robust debate about how to handle juveniles accused of serious crimes. Since the 1970s, states have increasingly allowed or even required trying juveniles accused of murder in adult court, though recent court decisions have shifted away from that direction. New Jersey, for instance, changed its laws two years after Ms. Triano’s murder to allow murder suspects older than 13 to be moved to criminal court.

About the opposite, however — transferring adults from juvenile court — there is little debate, perhaps because it is extremely rare to have a defendant, or rather, “respondent,” as he is called in juvenile court, so far past childhood.

Many legal experts say he is the oldest juvenile defender they can recall. Lawyers following the case compared it to that of Michael Skakel, a nephew of Robert F. Kennedy who was charged at age 40 with killing his neighbor in Connecticut when he was 15. But Mr. Skakel’s case was heard in criminal court, as the law in that state allowed.

Ms. Triano’s murder had gone unsolved for nearly four decades without any real suspects. She was a 57-year-old legal secretary who lived alone in Westfield, a well-off bedroom community, and was found dead on March 15, 1976, after her office called the police to report that she had not shown up to work.

It was, Judge Kirsch found, “an indisputably depraved and horrific scene.” She lay on a bed soaked with blood, a smashed bottle propped up against her head, cords from an electric blender and the blinds binding her arms and legs. She had been beaten, raped, strangled and repeatedly stabbed.

But the name of Mr. Franklin, whose backyard abutted hers, did not come up until about two years ago, when a cold case investigator decided to test DNA samples on evidence the Westfield police had saved, and run it against the federal database of prisoner DNA.

He came up with Mr. Franklin, who had served 17 years for robbery and kidnapping in a home invasion when he was around 18.

“It was like winning the Super Bowl,” the investigator, Vinnie Byron, said.

Had the murder happened two years later, or had Mr. Franklin been six months older at the time, he would have been tried in criminal court. Instead, prosecutors had to try him as juvenile according to the laws in effect in 1976. (One of prosecutors, Jeremiah Linehan, was not born then.)

Ms. Triano’s brother, who found her body, was dead, as was the medical examiner who did the autopsy. The trial relied on DNA that matched Mr. Franklin’s, taken from semen found on Ms. Triano’s underpants.

Mr. Franklin said he did not remember Ms. Triano or the crime — a defense that the judge ruled “defies common sense” given that it was a sensational murder “literally in his own backyard.”

Theodore Romankow, the Union County prosecutor, objected to treating Mr. Franklin as a juvenile. “For a 15-year-old, a 25-year-old, a 35-year-old, for anyone to do something this brutal is horrific,” he said.

Alexander Shalom, policy counsel for the American Civil Liberties Union in New Jersey, said that developments in neuroscience had reinforced the idea that juveniles had less risk perception, less foresight, less self control than adults.

“That’s not changed by long lags between crime and punishment,” he said. “Regardless of who he is today, he committed the crime as a juvenile, and when we’re trying to gauge his moral culpability, we’re looking at who he was then.”

In sentencing adults, courts look at prior records and there are generally specific terms that attach to particular crimes. In sentencing juveniles, the question is usually how best to rehabilitate them, ideally without putting them in prison.

“The questions are different,” said Laura Cohen, a law professor at Rutgers who has worked extensively on juvenile justice issues.

“One of the interesting things about these old cases that end up in juvenile court is that it’s not that speculative. The question is, are you undertaking this evaluation with the benefit of hindsight, or are you trying to put yourself in the position that you would have been in when the person was 15?”

Prosecutors say that if Mr. Franklin were sentenced as a juvenile under current laws, he would receive a maximum of 10 years. Judge Kirsch declined to comment beyond his ruling.

Under 1976 laws, prosecutors say, the sentence would be “indeterminate, not to exceed life, ” with the case reviewed every couple of years to determine whether the juvenile had been rehabilitated. But both prosecutors and Mr. Franklin’s lawyer said it was unclear which laws would guide the sentence. “The bottom line is, we found the killer,” Mr. Romankow said. “He got away with murder for 36 years, but justice prevailed.”

    Man, 52, Is Convicted as a Juvenile in a 1976 Murder, Creating a Legal Tangle, NYT, 21.12.2012,






Marijuana, Not Yet Legal for Californians, Might as Well Be


December 20, 2012
The New York Times


LOS ANGELES — Let Colorado and Washington be the marijuana trailblazers. Let them struggle with the messy details of what it means to actually legalize the drug. Marijuana is, as a practical matter, already legal in much of California.

No matter that its recreational use remains technically against the law. Marijuana has, in many parts of this state, become the equivalent of a beer in a paper bag on the streets of Greenwich Village. It is losing whatever stigma it ever had and still has in many parts of the country, including New York City, where the kind of open marijuana use that is common here would attract the attention of any passing law officer.

“It’s shocking, from my perspective, the number of people that we all know who are recreational marijuana users,” said Gavin Newsom, the lieutenant governor. “These are incredibly upstanding citizens: Leaders in our community, and exceptional people. Increasingly, people are willing to share how they use it and not be ashamed of it.”

Marijuana can be smelled in suburban backyards in neighborhoods from Hollywood to Topanga Canyon as dusk falls — what in other places is known as the cocktail hour — often wafting in from three sides. In some homes in Beverly Hills and San Francisco, it is offered at the start of a dinner party with the customary ease of a host offering a chilled Bombay Sapphire martini.

Lighting up a cigarette (the tobacco kind) can get you booted from many venues in this rigorously antitobacco state. But no one seemed to mind as marijuana smoke filled the air at an outdoor concert at the Hollywood Bowl in September or even in the much more intimate, enclosed atmosphere of the Troubadour in West Hollywood during a Mountain Goats concert last week.

Arnold Schwarzenegger, the former Republican governor, ticked off the acceptance of open marijuana smoking in a list of reasons he thought Venice was such a wonderful place for his morning bicycle rides. With so many people smoking in so many places, he said in an interview this year, there was no reason to light up one’s own joint.

“You just inhale, and you live off everyone else,” said Mr. Schwarzenegger, who as governor signed a law decriminalizing possession of small amounts of marijuana.

Some Californians react disdainfully to anyone from out of state who still harbors illicit associations with the drug. Bill Maher, the television host, was speaking about the prevalence of marijuana smoking at dinner parties hosted by Sue Mengers, a retired Hollywood agent famous for her high-powered gatherings of actors and journalists, in an interview after her death last year. “I used to bring her pot,” he said. “And I wasn’t the only one.”

When a reporter sought to ascertain whether this was an on-the-record conversation, Mr. Maher responded tartly: “Where do you think you are? This is California in the year 2011.”

John Burton, the state Democratic chairman, said he recalled an era when the drug was stigmatized under tough antidrug laws. He called the changes in thinking toward marijuana one of the two most striking shifts in public attitude he had seen in 40 years here (the other was gay rights).

“I can remember when your second conviction of having a single marijuana cigarette would get you two to 20 in San Quentin,” he said.

In a Field Poll of California voters conducted in October 2010, 47 percent of respondents said they had smoked marijuana at least once, and 50 percent said it should be legalized. The poll was taken shortly before Californians voted down, by a narrow margin, an initiative to decriminalize marijuana.

“In a Republican year, the legalization came within two points,” said Chris Lehane, a Democratic consultant who worked on the campaign in favor of the initiative. He said that was evidence of the “fact that the public has evolved on the issue and is ahead of the pols.”

A study by the California Office of Traffic Safety last month found that motorists were more likely to be driving under the influence of marijuana than under the influence of alcohol.

Still, there are limits. No matter how much attitudes in California may have changed, it remains illegal in most of the country — as Californians have been reminded by a series of crackdowns by the Justice Department on medical marijuana here. People who use the drug recreationally, who said they would think nothing of offering a visitor a joint upon walking through the door, declined to be quoted by name, citing the risks to career and professional concerns.

That was the case even as they talked about marijuana becoming commonly consumed by professionals and not just, as one person put it, activists and aging hippies. Descriptions of marijuana being offered to arriving guests at parties, as an alternative to a beer, are common.

In places like Venice and Berkeley, marijuana has been a cultural presence, albeit an underground one, since the 1960s. It began moving from the edges after voters approved the legalization of medical marijuana in 1996.

That has clearly been a major contributor to the mainstreaming of marijuana. There is no longer any need for distasteful and legally compromising entanglements with old-fashioned drug dealers, several marijuana users said, because it is now possible to buy from a medical marijuana shop or a friend, or a friend of a friend growing it for ostensibly medical purposes.

That has also meant, several users said,¸that the quality of marijuana is more reliable and varied, and there are fewer concerns about subsidizing a criminal network. It also means, it seems, prices here are lower than they are in many parts of the country.

Mr. Newsom — who said he did not smoke marijuana himself — said that the ubiquity of the drug had led him to believe that laws against it were counterproductive and archaic. He supports its legalization, a notable position for a Democrat widely considered one of the leading contenders to be the next governor.

“These laws just don’t make sense anymore,” he said. “It’s time for politicians to come out of the closet on this.”

    Marijuana, Not Yet Legal for Californians, Might as Well Be, NYT, 20.12.2012,






The Yawning Loophole in the Gun Laws


December 18, 2012
The New York Times


Pressures from unexpected quarters continued to build on Congress to strengthen the country’s porous gun laws. Pro-gun legislators expressed support for stronger rules. A prominent private equity firm announced that it was divesting itself of the company that makes the Bushmaster rifle, which was used in the mass shooting of 20 children and seven adults in Connecticut on Friday.

Bit by bit, it began to seem possible, at long last, that lawmakers who say they do not want guns to wind up in the hands of criminals, the mentally ill and others who cannot be trusted with them will do the one thing that would be most effective at achieving that goal, and the one thing the gun lobby does not want: requiring background checks for all gun sales.

The Brady gun control law, named for the White House official who was shot during an assassination attempt on President Ronald Reagan, requires licensed gun dealers to screen all prospective gun buyers through a federal database of convicted felons, drug abusers, people with a serious mental illness and others. In addition, the law requires licensed dealers to collect information about buyers that can be used later to trace guns that were used in crimes. From 1994 to 2009, those checks have prevented nearly two million gun sales, according to the Justice Department.

But the law does not cover private sales of guns, including transactions by “occasional sellers” at gun shows and flea markets, in what has become a gaping loophole that has allowed teenagers, ordinary criminals, terrorists, Mexican drug cartels and arms traffickers to have easy access to weapons. For instance, firearms bought at gun shows were used in the Columbine school shooting; they have been found in a shipment of arms supplies to the Lebanese terrorist group Hezbollah; and they have made their way across the border to Mexico.

But none of those examples have stopped the National Rifle Association and its supporters in Congress from blocking legislation that would require private sellers to run buyers through background checks, which take just a few minutes to process on the telephone. The N.R.A., emboldened by a Supreme Court ruling asserting an individual constitutional right to bear arms, has turned its attention to further broadening the market, lobbying state legislatures to allow concealed weapons in churches, schools and other public places and to restrict the discretion of local police in granting gun permits.

In the case of background checks on private sales, the N.R.A. has argued that checks are not needed because surveys of criminals suggest that just 2 percent of them buy their weapons from gun shows. This is a highly disingenuous argument because criminals most often purchase firearms from relatives, friends and associates. Many of those people, in turn, get their supplies from gun shows and elsewhere, including on the Internet where anybody with a credit card can order semiautomatic weapons for overnight delivery.

Requiring background checks for private sales will obviously not, on its own, keep people like Adam Lanza, the 20-year-old who perpetrated the massacre in Newtown, Conn., away from deadly weapons. For starters, only buyers of guns, not members of the families who own them (as was true in his case), are screened against the database known as the National Instant Criminal Background Check System.

Moreover, many state governments and federal agencies have provided incomplete or no records to the system for various logistical, legal and financial reasons. But those flaws and limitations should not be a reason for lawmakers to exempt sales at gun shows, flea markets and at other venues from background checks, which are a simple and effective way to prevent many violent individuals from getting access to guns.

Since the Newtown shootings, the influence and power of the N.R.A. may have diminished as some of its usual allies have distanced themselves from its hard-line position. Cerberus Capital Management, a private equity firm, said on Tuesday that it would sell its stake in Freedom Group, the maker of the Bushmaster rifle. And a Democratic state lawmaker in California, Kevin de León, introduced a bill that would require people buying ammunition to go through background checks. These are small but promising shoots. It is up to Congress and President Obama to nurture them.

    The Yawning Loophole in the Gun Laws, NYT, 18.12.2012,






Another Shooting May Test Florida Law


November 28, 2012
The New York Times


MIAMI — In what could become another test of Florida’s broad self-defense law, a software developer charged with killing a Jacksonville teenager said he reached for his gun and fired eight rounds only after he was threatened with a shotgun.

The suspect, Michael Dunn, 45, of Satellite Beach, was charged Wednesday with second-degree murder and attempted murder.

Mr. Dunn told his lawyer that the victim, Jordan Davis, 17, who was parked at a convenience store in Jacksonville on Friday night with three other teenagers, pointed a shotgun at him through a partly rolled-down window, threatened to kill him and began to open the door. The shooting occurred after a dispute over loud music coming from the teenagers’ sport utility vehicle.

Mr. Davis, a junior at a Jacksonville high school who had moved from Georgia two years ago to live with his father, died after being shot twice.

The Jacksonville Sheriff’s Office said officers had not found a shotgun in the car.

Mr. Dunn and his fiancée, Rhonda Rouer, fled the convenience store in his Volkswagen Jetta after the teenagers left because he was afraid they would return, his lawyer, Robin Lemonidis, said. He did not call the authorities; the police arrested him the following day, finding him because a witness noted his license plate number.

The case has drawn parallels to the Trayvon Martin shooting because of the age and race of the victim, the fact that no weapon associated with the victim has been found, and Mr. Dunn’s self-defense claim. Ms. Lemonidis is considering using the state’s Stand Your Ground law, which allows people who fear for their lives to retaliate with lethal force, as a defense.

But she said the shooting bore no resemblance to the case of George Zimmerman, accused of second-degree murder in the death of Mr. Martin.

“There is no racial motivation here whatsoever,” Ms. Lemonidis said. “He would have never, ever, in a million years pulled a gun if his life was not threatened. He saw a shotgun, and four inches of the barrel, and the guy said to him, ‘This is going down now’ and popped the door open.”

Ms. Lemonidis said it was possible the teenagers had thrown away the shotgun after the encounter. “How hard did they look?” she said of the police search for a gun.

Ron Davis, Mr. Davis’s father, told CNN that his son, who recently got a job at McDonald’s, did not own guns and that the teenagers in the car had tried to flee when they saw Mr. Dunn’s gun. “He did something that there was no defense for,” Mr. Davis said of Mr. Dunn.

The victim’s mother, Lucia McBath, said Mr. Davis had hoped to join the military. She said she did not view the shooting as a racial crime, despite the fact that her son is black and the suspect is white.

“Something snapped in him,” she said of the suspect in an interview with First Coast News in Jacksonville.

Mr. Dunn, a gun collector who has a pilot’s license, was in Jacksonville for his son’s wedding last weekend. He had one drink at the reception and a glass of Champagne before he left, his lawyer said. When he and Ms. Rouer stopped at the convenience store for wine to take to the hotel, the teenagers in the car next to him were blasting music. He asked them to turn it down. At first they did, Ms. Lemonidis said. But then they turned the volume back up and began cursing him.

When he saw the shotgun and heard the threat, Mr. Dunn reached into his glove compartment, unholstered his Taurus 9-millimeter gun and fired two rounds into the back seat, and then two more. As the car with the teenagers pulled out, he feared they would try to shoot back, so he fired four more shots, his lawyer said.

He returned to the hotel, believing no one had been hurt. But the next morning, after Ms. Rouer saw on the news that a teenager had been killed, Mr. Dunn decided to turn himself in, but in Satellite Beach, about 170 miles away, where his neighbor has ties to law enforcement, Ms. Lemonidis said. Soon after, he went to the neighbor’s home, and the police, already on their way, arrived to arrest him.

    Another Shooting May Test Florida Law, NYT, 28.11.2012,






Cleared in the Rape of a Central Park Jogger,

but Still Calculating the Cost


November 20, 2012
The New York Times


Antron McCray climbed on stage in a Manhattan theater one night last week and stepped into the kind of spotlight that, until now, has almost always meant trouble for him.

Exiled from New York, his hometown, Mr. McCray was last seen in public two decades ago as a skinny 16-year-old, practically drowning in a suit that he wore to the Manhattan courthouse where he was tried on charges that he was part of a mob that raped a jogger in Central Park and beat her nearly to death in April 1989. In the television news footage, he often held his mother’s hand as he walked past screaming demonstrators.

With four other Harlem boys, all of whom refused plea bargains, he was convicted of attacking the jogger and sent to prison. More than a decade later, the convictions of all five were overturned. Another man — a serial rapist and killer who was unknown to any of the five — had convincingly implicated himself as the sole attacker of the jogger. DNA evidence backed his story.

This Friday, “The Central Park Five,” a documentary film on the case by Ken Burns, Sarah Burns and David McMahon, opens in three Manhattan theaters.

Alone of the five, Mr. McCray declined to be interviewed on camera for the film, unwilling to lift the veil. Instead, his recorded voice is heard. As soon as he could after prison, Mr. McCray moved to the South. He works as a forklift operator, is a father, pays his taxes.

He stepped back into the public eye last Thursday for a screening of the film at the closing night of the Doc NYC festival.

The audience that had just seen him as a boy — in a baseball uniform, in a police precinct station house being interrogated, in the too-big suit going to court — and had listened to his voice throughout the film could now see him as a man. At 39, his shoulders were broader, and his waist a bit thicker.

There was something he wanted to tell the audience about his anonymity.

“Here’s the reason why I escaped New York: I just had to get away,” Mr. McCray said. “Start a new life.”

That logic took him to a shocking place.

“Actually, uh,” he said, “I don’t even go by Antron McCray no more.”

Saying that out loud seemed to take even Mr. McCray by surprise, a sudden tolling of what he lost. Words thickened in his mouth. On either side of him, two of the other men, Kevin Richardson and Yusef Salaam, squeezed his shoulders and patted his back.

The film lays out the intricacies of the case, the sights and sounds of a brittle era; it will be full of revelations for those who never knew about the crime and how its life-bending effects were multiplied as the wrong people were prosecuted while the right man continued to maim, murder and rape on the Upper East Side.

The filmmakers follow the story far beyond the procedural failures identified by journalists interviewed in the film, including me. Kharey Wise, by far the scrawniest of the group, happened to be the only one old enough to spend all his time in adult jail and prison. Raymond Santana said he cursed God and lost his faith.

With Mr. McCray, they tunnel into Shakespearean territory.

“I thought he was like a superhero,” Mr. McCray said of his father, Bobby. “He coached all of my Little League teams. He was a great teacher.”

By the time of the trial, though, the man Mr. McCray had idolized had abandoned him and his mother.

“I couldn’t understand,” he said. “And I just, I hated him after that. Me and my mother started going to court by ourself. Demonstrators, you know people just shouting, you know, ‘Rapist!’ ‘You animal!’ ‘You don’t deserve to be alive.’ It just felt like the whole world hated us.”

His parents reconciled, but when Mr. McCray came home from prison, he would not accept his father’s apologies, even as his father grew ill and died.

“Seeing him laying there, it just hit me. You know, he used to be my best friend.”

Offstage last week Mr. McCray said: “I wish I had forgiven him. Me being older, and me being a father.”

He told the audience it had taken him a long time to decide to give the filmmakers a chance.

“Like Ray said in the film, I lost my religion, I don’t believe in anything, I’m by myself,” Mr. McCray said. “But tonight — I think that might change.”

He wiped his face, then smiled.

“I may be 39,” he said, “but I’m still kind of shy.”

    Cleared in the Rape of a Central Park Jogger, but Still Calculating the Cost, NYT, 20.11.2012,






Judicial Elections, Unhinged


November 18, 2012
The New York Times


This year’s round of state judicial elections broke previous records for the amounts spent on judicial campaigns around the country. The dominant role played by special-interest money — including money from super PACs financed by undisclosed donors — has severely weakened the principle of fair and impartial courts.

In Florida, for example, three respected State Supreme Court justices won their retention election battles, but only after they were forced to raise more than $1.5 million in total. They had put on expensive campaigns because they were targeted for defeat by moneyed conservatives who wanted to drive them off the bench for their supposed liberal views. The justices were absolutely right to fight back. Still, the bitter campaigns leave impressions of judicial partisanship and indebtedness to campaign donors.

Nationally, spending on television advertisements in state supreme court races reached nearly $28 million by Election Day, exceeding the $24.4 million in 2004, the previous record for a presidential election year, according to the Brennan Center for Justice and Justice at Stake, nonpartisan groups working for fair courts. Groups not connected to candidate campaigns paid for more than half of the TV ads run, compared with about 30 percent in 2010, making it much harder for candidates to control their own message.

In Michigan, where three of seven seats on the State Supreme Court were up for election, records were set for both spending and lack of accountability. The $3.2 million raised by candidates and reported to the Michigan Bureau of Elections was dwarfed by unreported spending by the political parties and outside groups interested in tilting the balance on the court. One ad run by an independent group against Bridget McCormack, a Democratic candidate for a seat on the court, featured the mother of a soldier killed in Afghanistan and suggested that Ms. McCormack’s legal work for a detainee released from Guantánamo Bay in 2007 showed support for terrorism. Ms. McCormack won the race.

Of the $15 million or so spent for TV ads in Michigan, 75 percent cannot be attributed to identifiable donors, notes Rich Robinson, executive director of the Michigan Campaign Finance Network, which advocates changing Michigan law to bar undisclosed independent spending. That exceeds even the 2010 record, when half the total spending on Michigan Supreme Court races came from secret sources.

Regrettably, states that elect their top judges show no inclination to address these distressing trends by replacing judicial elections with systems of merit appointment that avoid retention votes. This year’s experience should at least hasten state efforts to revise rules for judicial recusal to take campaign contributions into account. Mandatory disclosure of all donations to a judicial race is also essential. Litigants cannot know when they should request that a judge step aside if they cannot tell whether their case involves a party that supported the judge’s campaign.

    Judicial Elections, Unhinged, NYT, 18.11.2012,






A Texas Prosecutor Faces Justice


November 12, 2012
The New York Times


In just about a month from now, Texas will witness a rare event: a former prosecutor is going to be held to account for alleged prosecutorial misconduct.

He is Ken Anderson, who for nearly 17 years was the district attorney in Williamson County, a fast-growing suburb of Austin. (In 2002, Gov. Rick Perry made him a district judge.) As Pamela Colloff writes, in a brilliant two-part series in Texas Monthly, Anderson was the kind of prosecutor who “routinely asked for, and won, harsh sentences and fought to keep offenders in prison long after they became eligible for parole.”

One of Anderson’s most high-profile prosecutions was of a man named Michael Morton. In 1987, Anderson prosecuted him for a heinous crime: His wife, Christine, was bludgeoned to death. Morton was then in his early 30s, with a 3-year-old son and a job at Safeway. He had never been in trouble. Yet the Williamson County sheriff, Jim Boutwell, from whom Anderson took his cues, was convinced that Morton had committed the crime.

Evidence that could be used against him — such as a plaintive note Morton wrote to his wife after she fell asleep when he was hoping to have sex — was highlighted. Evidence that suggested his innocence — most importantly, a blood-stained bandana discovered near Morton’s house — was ignored. Worst of all, Anderson’s office hid from the defense some crucial evidence that would undoubtedly have caused the jury to find Morton not guilty. By the time Morton was sentenced — to life — only his parents and a single co-worker believed he was innocent.

But he was. In October 2011, after 25 years in prison, Morton was set free. Nine years earlier, the Innocence Project, which works on behalf of people who have been wrongly prosecuted, got involved in Morton’s case. After years of legal wrangling, they got hold of the hidden evidence, and a court agreed to allow DNA testing on the bloody bandana. The DNA test not only absolved Morton, but pointed to a man who had subsequently killed another woman.

Colloff’s articles are gripping and powerful, but they’re not as unusual as they ought to be. Stories about innocent people wrongly imprisoned are a staple of journalism. (Colloff herself has written about two other such prisoners in Texas.) Barry Scheck, the co-founder of the Innocence Project, told me that the group has gotten 300 people exonerated, mostly by using sophisticated DNA testing.

Sam Millsap, a former Texas prosecutor, now crusades against the death penalty because a man he prosecuted — on the basis of a single eyewitness — was put to death. He later learned that the witness had been wrong. “I’d love to be able to tell you I am the only former elected prosecutor in the country who finds himself in the position of having to admit an error in judgment that may have led to the execution of an innocent man, but I know I am not,” he said in a talk he gave a few years ago.

Very few prosecutors, however, are willing to admit they’ve made errors. They fight efforts to reopen cases. “They want finality,” said Ellen Yaroshefsky, a professor at Cardozo School of Law. The standard for introducing evidence postconviction is that it has to be strong enough to have changed the result. It rarely is.

Some prosecutors have another incentive: hiding misconduct. Brandon Garrett, who teaches law at the University of Virginia and has written a book, “Convicting the Innocent,” about exonerations, told me that in almost every case, prosecutorial misconduct is involved.

What makes the Morton case unusual is that, thanks to the Innocence Project’s re-investigation, Ken Anderson will soon go before a Texas Court of Inquiry. If the court believes that Anderson’s alleged misconduct rises to the level of a crime, it could refer the matter to a grand jury. But the Court of Inquiry exists only in Texas, and is almost never used even there.

In truth, Anderson isn’t the only Williamson County prosecutor who faced consequences as a result of the Morton case. His successor, John Bradley, was the one who had fought for years against the DNA testing of the bandana. Seven months after Morton was set free, Bradley, who had always been a shoo-in for re-election as district attorney, was resoundingly defeated.

When I spoke to him the other day, he told me that he now believes he had been wrong to fight so hard against the DNA testing. “We shouldn’t set up barriers to the introduction of new evidence,” he said. Although it would mean more work for prosecutors, Bradley now believes that examining important new evidence is “a legitimate and acceptable cost to doing business in the criminal justice system.”

Bradley will leave office soon. He told me he was going to start a law practice specializing in appellate work. Here’s hoping he argues some appeals for the wrongly imprisoned.

    A Texas Prosecutor Faces Justice, NYT, 12.11.2012,






Social Media, Growing in Legal Circles,

Find a Role in Florida Murder Case


November 6, 2012
The New York Times


MIAMI — When Mark O’Mara agreed to defend George Zimmerman in the Trayvon Martin murder case, one of his first major decisions was to embrace the Internet.

He set up a legal defense Web site for his client, a Twitter page and a Facebook account, all with the purpose of countering what he called the “avalanche of misinformation” about the case and Mr. Zimmerman.

It was a risky move, unorthodox for a criminal defense lawyer, legal experts said, but a bold one. Late last month, the judge in the case, rebuffing the prosecution, allowed Mr. O’Mara to keep the online presence.

In so doing, the judge sanctioned the use of social media in a high-profile murder case that was already steeped in the power of Facebook, Twitter and blogs. Not long after Mr. Martin was shot and killed, protesters took their cues from Facebook and demonstrated across the country. Angry words coursed through Twitter.

Mr. Zimmerman, in hiding, started a Web site to raise money. The Martin family’s lawyers, who made ample use of traditional media, used Twitter to bring attention to Mr. Martin’s death.

Social media is playing a role in the courtroom, too. Mr. O’Mara wants to use Mr. Martin’s Facebook page and Twitter feed to bolster Mr. Zimmerman’s claim of self-defense. But he will most likely face a protracted battle to authenticate the material, in part because Mr. Martin is no longer alive. Last month, the judge allowed Mr. O’Mara to subpoena Twitter and Facebook for the information.

In ways large and small, the State of Florida v. George Zimmerman is serving as a modernized blueprint for deploying social media in a murder case.

“The way the whole case has been playing out in social media is typical of our times, but more typical of civil cases than criminal cases,” said Robert Ambrogi, a lawyer and technology expert who writes a blog on the intersection of the legal profession and social media. “It’s not without precedent, but it’s on the cutting edge.”

In civil cases, lawyers routinely dig up Facebook photos of people claiming to have a back injury dancing atop bars or revealing posts from supposedly faithful spouses.

“In the world of electronic information, the amount of potentially relevant information in discovery has exploded,” said Kenneth Withers, the director of judicial education and content for The Sedona Conference, a nonprofit law and policy research organization, referring to the pretrial exchange of information and evidence between lawyers on both sides. “And with social media, there has been an explosion of an explosion.”

It no longer makes sense for criminal defense lawyers who have tread more cautiously into social media to brush it off or avoid it, legal experts said.

Nicole Black, a co-author of “Social Media for Lawyers,” said criminal lawyers are getting crash courses on how to best use social media to help their clients and themselves.

“There is almost hysteria among the lawyers to understand it and how it’s affecting their practice,” said Ms. Black, who is also the director of business development and community relations at MyCaseInc.com.

Mr. O’Mara said as much in court recently when he pressed for access to Mr. Martin’s Facebook page and for the continued use of the legal defense Web site and its Twitter feed. “This is 2012, and I’m sorry, I used to have the books on the shelf, and those days are long gone,” he said. “We now have an active vehicle for information. I will tell you that today, if every defense attorney is not searching for information on something like this, he will be committing malpractice.”

Mr. Zimmerman, a Hispanic neighborhood watch volunteer in Sanford, Fla., is charged with second-degree murder in the shooting death of Mr. Martin, an unarmed black teenager who was killed in February as he walked to a house where he was staying as a guest.

Mr. O’Mara has been careful to hew to ethical requirements on his Twitter feed and Web site, which he uses to post legal documents, react to developments in the case and raise money for his client. He allows comments to be posted so long as they are not inflammatory. When the Facebook page “devolved into people bickering,” he said, he shut it down.

Social media is difficult to control, which for many is precisely its allure. Last month, Mr. Zimmerman’s brother, Robert Zimmerman Jr., fired off an angry post on Twitter at Natalie Jackson, one of the Martin family’s lawyers.

“My Life’s work = you WILL be held accountable for your words/actions. You A’INT seen NOTHIN’ yet ... I will see U disbarred,” he posted on Twitter.

Mr. O’Mara wrote a reaction on his Web site.

“Regarding Robert Zimmerman Jr.’s media campaign and Twitter comments, Robert is acting on behalf of his family, and he is not acting with the approval or the input of the defense team,” he wrote. He noted that, “The Zimmerman family has been through a lot, and they have been frequently misrepresented in the media, so we do not begrudge Robert for wanting to speak out and set the record straight.”

While Mr. O’Mara has become adept at social media, rattling off the number of Google hits on the words Trayvon Martin and the tally of visits to the legal defense site — 267,089 as of Monday — plunging into the world of Twitter, Facebook and blogs is not a welcome development for all in the courtroom.

“I’m new to this, quite frankly; I’m old,” a prosecutor, Bernie de la Rionda, said as the two sides faced off over social media in the courtroom.

Before long, Judge Debra S. Nelson will have to decide how to handle social media during the trial, which is scheduled to begin on June 10. Some jurors in other cases across the country have taken to posting about the proceedings on Facebook or Twitter, posing a risk of mistrials. Judges have cracked down.

Considering the publicity in the case, Judge Nelson may wind up following the lead of the judge in another high-profile Florida murder trial, that of Casey Anthony, who was acquitted of killing her young daughter. She could sequester the jury members, confiscate their cellphones and laptops, and monitor their calls and computer time.

If Judge Nelson does follow suit, she must be prepared to deal with another juror dilemma: extreme withdrawal.

    Social Media, Growing in Legal Circles, Find a Role in Florida Murder Case, NYT, 6.11.2012,






Now 12, California Boy Comes to Trial

in Killing of Neo-Nazi Father


October 28, 2012
The New York Times


RIVERSIDE, Calif. — Both the prosecution and the defense involved in a trial set to start here on Monday basically agree on the following: Before dawn on May 1, 2011, 10-year-old Joseph Hall went to his family’s living room armed with a snub-nosed revolver, pointed it at his father’s head as he lay sleeping on the couch, and shot and killed him.

From there, the two sides are likely to differ on both the events that preceded the shooting and Joseph’s exact motive, elements complicated by his age and the fact that his father, Jeff Hall, was a rabid neo-Nazi. And those facts raise several more philosophical quandaries that, depending on how the judge weighs the answers, may determine the outcome of the trial. Among them: whether virulent racism can amount to parental abuse, whether a child exposed to such hate can understand the difference between right and wrong, and whether someone who grows up in such toxic circumstances can be blamed for wanting a way out.

The prosecutor, Michael Soccio, says that the actions of Joseph Hall have little to do with Nazism, but rather with his anger at being punished and spanked by his father at a party the day before the killing and the boy’s worries that his father would leave his family. Though he says he sympathizes with Joseph and his upbringing — “There’s a sweet side to him,” Mr. Soccio said in an interview this month — he also has little doubt that the boy is a killer.

“What he did, had it been done by anybody older, there would be no doubt that it was a murder,” said Mr. Soccio, the chief deputy district attorney in Riverside County. “It’s planned. It’s premeditated. It was carried out in a cold, killing fashion. It is a murder.”

But Joseph’s public defender, Matthew J. Hardy, says his client has neurological and psychological problems, compounded by exposure to neo-Nazi “conditioning” and physical abuse in the home.

“He’s been conditioned to violence,” Mr. Hardy said, adding, “You have to ask yourself: Did this kid really know that this act was wrong based on all those things?”

Instead, Mr. Hardy said, Joseph thought he was being a hero by shooting his father. “He thought what he was doing was right,” said Mr. Hardy. “And while that may be hard for other people to understand, in his mind, in a child’s mind, if he thought it was right, or at least didn’t think it was wrong, then he cannot be held responsible.”

Whether that holds true is up to Judge Jean Leonard of Riverside County Superior Court, who will oversee the murder trial without a jury. What is certain, however, is that if found responsible for the killing and made a ward of the state, Joseph, who is now 12, would be the youngest person held in one of the three fenced-in facilities run by California’s Department of Juvenile Justice, which houses about 900 of some of the state’s most serious juvenile offenders. The median age of these offenders held by the state is 19, and, if found reasonable for the murder, Joseph would likely be held until he was 23.

Joseph Hall’s case is also unusual because such acts of violence by children are exceedingly rare. Kathleen M. Heide, a professor of criminology at the University of South Florida, conducted a study and found only 16 arrests of a child under the age of 11 in the killing a parent between 1976 and 2007, roughly one every two years.

Trials in such murders are even rarer, said Robert Weisberg, a co-director of the Stanford Criminal Justice Center, saying he could not recall seeing anyone that young on trial for such a crime in California.

Children as young as 10, or younger, who are accused of murder present special challenges to courts, said Dr. Heide, because of the longstanding legal belief that children are incapable of formulating the intent to commit the crime and do not understand the magnitude of its consequences. Children that young often do not grasp “that death means forever gone,” she said.

California’s penal code also says that children under 14 cannot be charged with a crime without clear proof that “they knew its wrongfulness.”

But Mr. Soccio said that Joseph had a history of violence, including an attack that involved wrapping a telephone cord around a teacher’s neck, and needed to be in a security setting “receiving as much help as possible for as long as possible.”

“I’ve had some people say, ‘How can you do that to a little kid?’ ” said Mr. Soccio. “And I ask them, ‘Well, would you like him to come live with you?’ ”

Whatever strategy the lawyers use, life inside the Hall household will most likely come up in the trial, and Joseph may take the stand, Mr. Soccio said. The court could also see testimony from members of the neo-Nazi group the National Socialist Movement, of which Mr. Hall was a West Coast leader.

The day before the killing, Mr. Hall, 32, held a meeting for his members at his suburban Riverside home, where a Nazi flag was hung in the living room. A New York Times reporter, reporting an article about the National Socialist Movement, was also at that meeting, where the group discussed plans for armed patrols on the Mexican border.

At the meeting’s start, Mr. Hall, an unemployed plumber who had bragged in the past about teaching his son to shoot a weapon, scolded one of his children for interrupting him — “Get outside or go upstairs and play!” — before telling the group about Joseph’s breaking a set of cabinets in the house.

“It was like the twin towers, 9/11, one stack came down, the other stack,” he said.

During the meeting, Joseph listened quietly at a table, and later sat with his stepmother, Krista McCary, as she fed a newborn. Mr. Hall had five children, including two from a previous marriage — he was awarded custody of Joseph, the oldest of the five children, and his younger sister after a legal battle with his ex-wife.

The custody battle included allegations of abuse on both sides. Mr. Soccio said that Mr. Hall had occasionally gone “over the top” with physical punishments of Joseph, including kicks to the buttocks. But, he said, “nothing near criminal or even prohibited.” Some friends, he said, said “he was a good parent.”

But there is also the question of whether Mr. Hall’s rhetoric, which included “sieg heils,” and neo-Nazi get-togethers in the home amounted to psychological abuse. Mr. Hardy said Joseph had endured episodes of domestic violence and child abuse “as well as the atmosphere that’s created by the neo-Nazi activities.”

After the meeting, where, Mr. Soccio said, Joseph was spanked for misbehaving, Mr. Hall went out. Mr. Soccio said Joseph might have told a sibling that night that he planned to shoot his father, and Mr. Hardy said another member of the family might have encouraged it.

Just after 4 a.m., the Riverside police received a 911 from Ms. McCary, reporting that her husband had been shot. Paramedics declared him dead when they arrived. A police report said officers had found a .357 Magnum revolver under Joseph’s bed, and an empty holster on a lower shelf in his parents’ closet.

In August 2011, Ms. McCary pleaded guilty to child endangerment and criminal storage of a firearm. She and her three biological children now live with Mr. Hall’s mother, Mr. Soccio said. Neither woman could be reached for comment.

Joseph is living at a juvenile hall in Riverside, going to school on the grounds of the facility, and is eligible for family visits on weekends and counseling.

And although “tiny” when he arrived in custody, the boy has grown taller and heavier, and would continue to present “a custodial problem wherever he is,” Mr. Soccio said. “He’s going to be a big man.”

Mr. Soccio said that Joseph worried that his father was cheating on his stepmother and that “his family might be falling apart.” But Mr. Soccio said he remained skeptical that Mr. Hall’s Nazism had much to do with the murder. Rather, he thinks back to something he said the boy had told investigators in the hours after the killing.

“Joseph said at one point,” Mr. Soccio recalled, “ ‘This father and son thing had to come to an end.’ ”

    Now 12, California Boy Comes to Trial in Killing of Neo-Nazi Father, NYT, 28.10.2012,






An Arrest in the News, an Exoneration in Silence


October 19, 2012
The New York Times


Google me, Travis Tremell said. See what comes up.

The first item on the screen is a short 2006 article in The New York Times. The headline read, “Man Charged in Killing After Brooklyn Robbery.”

Travis Tremell’s was the first name that popped up in the article. The second was Earl Williams, shot dead in a Bedford-Stuyvesant basement two weeks before.

Now, almost six years later, Mr. Tremell said, “I was arrested for a murder I didn’t do.”

That he said this standing on a sunny Brooklyn sidewalk, not inside a prison, lent him some credibility.

None of Travis Tremell’s Google hits call him an angel. The eldest of his mother’s five children, Mr. Tremell, then 21, was charged with selling crack earlier that year. He pleaded guilty and, after two months in jail, was ordered to enter a drug program for the remainder of his sentence.

On Dec. 15, 2006, the drug program not yet completed, Mr. Tremell was walking to the store for a “loosie” cigarette. “A black truck pulled up, and a couple of fugitive officers got out,” he said. They arrested him and charged him with killing a man he swore he had never heard of.

On Dec. 2, 2006, at 6:28 p.m. — the time would prove important — three armed robbers forced their way into an apartment at 131 Decatur Street. There was little to steal, and at some point, a neighbor named Earl Williams was “summoned” to the basement via cellphone, the witnesses said.

Mr. Williams was 52, originally from Montgomery, Ala., and soon to be wed. He answered the call, went to the apartment and was shot in the shoulder, a wound that sounds less severe than it was, for he was struck from the side and the bullet passed horizontally through his chest, piercing both lungs. He died a few hours later.

Three witnesses picked Mr. Tremell out of a lineup or from photos, the police said. “I did not rob anyone,” he told detectives, according to a police report. “Who said that I did it? I did not do it.”

His drug sentence unfinished, the young man was shipped upstate to prison. The murder charge upgraded him to maximum-security status, and he went to Attica Correctional Facility.

He was uneasy, but his mother was terrified. She visited him, and brought along her 5-year-old son, Devante, who, now 11, remembers it well. “I saw some big people, and he was scared and smaller than them,” Devante said this week. Of his mother, he said, “She was getting depressed and losing weight and her hair was falling out.”

Mr. Tremell told his mother, “I could prove it wasn’t me.” He told his appointed lawyer, David T. Roche, that he had called a car service to take him to see a girlfriend in Park Slope that afternoon.

Mr. Roche called United Express Car and Limo Service, and there it was, call No. 1688, originating at Mr. Tremell’s aunt’s house in Bedford-Stuyvesant, destination Eighth Avenue. The time was 5:40 p.m. Mr. Tremell said that after visiting his girlfriend, he took another car service home, after walking directly to a dispatcher’s office. That service told Mr. Roche that visits like that should be logged, but usually are not.

Mr. Roche drove the route himself. Could Mr. Tremell have gone to Park Slope and back in 48 minutes? It would have been tight. Mr. Tremell’s story seemed more likely. “It has the ring of truth to it,” Mr. Roche said.

As the alibi developed, the prosecutors seemed to have found other evidence clearing Mr. Tremell, and the charges against him were dismissed on April 4, 2007, almost four months after his arrest. He got the news in a Brooklyn courtroom, only to be shipped back to Attica for another month, still serving his drug sentence. Asked what Attica was like, Mr. Tremell just stared.

“You can’t just go to jail and come home normal,” he said. He dwells — and dwells — on the article people can read online, about the murder charge, and he thinks it cost him financial aid at a college he applied to. He is out of work, but concedes he hasn’t been looking very hard. He assumes the arrest will keep an employer from hiring him.

He reads the article on the computer “and just stares,” his mother said.

Why was an article about his exoneration never written? Pick a reason. There is no indication it was announced by the prosecution or the police, and neither Mr. Tremell nor his family or lawyer called reporters with the news. The homicide was not the sort of high-profile case that led newspapers to routinely update its status. It went unnoticed. By chance, Mr. Tremell ran into a photographer for The Times, Todd Heisler, this summer and told him his story. Now there is a new hit on Google.

There are two suspects in Mr. Williams’s murder, the police said. Both are in federal prison on other charges.

    An Arrest in the News, an Exoneration in Silence, NYT, 19.10.2012,






A Schizophrenic on Death Row


October 17, 2012
The New York Times


The Florida Supreme Court decided on Wednesday that the state can proceed with the execution next week of a 64-year-old inmate named John Ferguson. His lawyers immediately said that they will ask the United States Supreme Court to stay the execution and to review the case on grounds that Mr. Ferguson is mentally incompetent and that executing him would violate his constitutional rights as defined by the court in two earlier decisions.

The court must review the case. At issue are not only Mr. Ferguson’s life but also two differing interpretations of what constitutes competence: one Florida’s, the other the Supreme Court’s.

Mr. Ferguson believes that he is the Prince of God and that he is facing execution not for murders he committed but because of a conspiracy against him for being the prince. He believes that he cannot be killed and that he has “inner ears” so he can hear God whisper instructions. All of this is consistent with his being a paranoid schizophrenic, as he was diagnosed 40 years ago and many times since, including earlier this month.

The Supreme Court ruled in 1986 that it is unconstitutional to execute someone who lacks the “ability to comprehend the nature of the penalty.” In 2007, the court clarified that a “prisoner’s awareness of the state’s rationale for an execution is not the same as a rational understanding of it” and that evidence of psychological dysfunction may result in a “fundamental failure to appreciate the connection” between his crimes and his execution.

Yet this is not the way Florida sees it. Florida law requires only “awareness” — that Mr. Ferguson knows he committed murders and is set to be executed. On that basis, a trial judge ruled last Friday that Mr. Ferguson was competent and could be executed, and the Florida Supreme Court upheld that view, saying no “stricter standard” of competence is required.

Florida’s “awareness” test is plainly inadequate, because it assumes Mr. Ferguson has the kind of understanding of his situation that his delusions make impossible. Mistaken findings of competence like this have allowed states to execute scores of people with severe mental illnesses, including schizophrenia.

Beyond that, the Supreme Court’s 2007 ruling is the law of the land and should be applicable to Florida. The court now has a solemn obligation to explain why Florida’s standard clearly violates the Constitution and to block this execution.

    A Schizophrenic on Death Row, NYT, 18.10.2012,






George Whitmore Jr.,

Falsely Confessed to 3 Murders in 1964,

Dies at 68


October 15, 2012
The New York Times


George Whitmore Jr., an eighth-grade dropout who confessed in 1964 to three New York murders that he did not commit, and whose case became instrumental in establishing historic legal reforms — including the Supreme Court’s 1966 “Miranda” ruling, which protects criminal suspects, and the partial repeal of capital punishment in New York State — died on Oct. 8 in a Wildwood, N.J., nursing home. He was 68.

The cause was a heart attack, his daughter Regina Whitmore said.

Mr. Whitmore was 19 in April 1964 when he was first picked up on a Brooklyn street, in Brownsville, for questioning about an attempted rape in the neighborhood the night before. A soft-spoken young man, he had grown up in a house in a junkyard that his father owned in Wildwood, N.J. He had tried hard in school but dropped out at 17, moved to Brooklyn and was waiting for a ride to work when the police pulled their car over and started asking him questions.

He would later tell interviewers that he had secretly been pleased at being asked for help in solving a crime, and at the prospect of having a good yarn to tell his friends.

But when his interrogation ended several days later, Mr. Whitmore had confessed to the attempted rape, and to the rape-murder a few weeks earlier of another woman in the neighborhood, Minnie Edmonds. He had also confessed to the double murder in Manhattan, on Aug. 28, 1963, of two women whose bodies were found bound and stabbed numerous times in the apartment they shared on East 88th Street.

Called “the Career Girl Murders” in newspaper headlines, the killings of Janice Wylie, 21, a researcher at Newsweek magazine, and Emily Hoffert, 23, a schoolteacher, had been the focus of an eight-month investigation.

Mr. Whitmore recanted his confession, and he consistently claimed afterward that the police had beaten him and that he had signed the confession without knowing what it was. He said he was innocent. And in the case of the Wylie-Hoffert slayings, he said, he could provide the names of a dozen people who saw him on that day and who would remember it, because it was the day of the civil rights march on Washington, when Martin Luther King Jr. gave his “I Have a Dream” speech. He and everybody else in Wildwood had watched it on television and talked about it incessantly, all day, he said.

In 1964, Mr. Whitmore was convicted by a Brooklyn jury on the charges of attempted rape. Though the verdict was overturned because jurors were found to have been reading newspaper accounts of the case, which referred to Mr. Whitmore as the “prime suspect” in the Career Girl Murders, he was tried a second time. He was convicted again, but the verdict was again thrown out, on different grounds.

By 1965, Manhattan prosecutors had evidence that Mr. Whitmore was wrongly accused in the Wylie-Hoffert murders. They had linked the brutal slayings to Richard Robles, a recently released prisoner who would later be convicted of the crime, and who remains in prison.

Still, while Mr. Whitmore now faced a second trial, in the murder of Ms. Edmonds, his indictment in the Wylie-Hoffert case remained in place. News accounts said that by refusing to dismiss the indictment, prosecutors hoped to deny Mr. Whitmore’s defense lawyers an argument: that the dismissal of the double-murder indictment proved it had been coerced, and that Mr. Whitmore’s confession to the Edmonds murder, elicited in the same long interrogation, had therefore been coerced, too.

Selwyn Raab, a reporter then for The New York World-Telegram and Sun, and later for The New York Times, had found a dozen witnesses who remembered seeing Mr. Whitmore in Wildwood on the day of the double murder. They had bumped into him in the homes of friends and relatives while watching Dr. King’s speech, Mr. Raab wrote in a front-page story in The World-Telegram.

“Whitmore’s case showed how fragile the whole system was, and still is,” Mr. Raab said in an interview on Sunday. “Even now, police use the same techniques to manipulate suspects into giving false confessions. And 90 percent of convictions are still based on confessions.”

The police and prosecutors at the time denied any misconduct. Legal reformers asked Gov. Nelson A. Rockefeller, a Republican, to appoint a panel to investigate, but he declined.

Yet Mr. Whitmore’s legal troubles were far from over. With the Manhattan district attorney still refusing to clear him entirely in the Wylie-Hoffert case, Mr. Whitmore went to trial for the murder of Minnie Edmonds, solely on the evidence of his “confession.”

In the debate in the New York State Legislature over a proposal to abolish the death penalty, Mr. Whitmore’s case became a warning cry against the killing of innocents. “In Whitmore’s case,” said Assemblyman Bertram L. Podell of Brooklyn, “we have learned to our shock and horror that a 61-page statement of completely detailed confession was manufactured and force-fed to this accused.”

Governor Rockefeller signed a bill in 1965 abolishing capital punishment, except in the killing of police officers. (The death penalty was reinstated in 1995, and declared unconstitutional in 2004.) The Supreme Court cited Mr. Whitmore’s case as “the most conspicuous example” of police coercion in the country when it issued its 1966 ruling establishing a set of protections for suspects, like the right to remain silent, in “Miranda v. Arizona.”

Mr. Whitmore was tried several times in the murder of Ms. Edmonds, with each trial ending in a hung jury.

As a result of the various cases in which he had become entangled, he was in and out of prison, for months and years at a time, until April 10, 1973, when the Brooklyn district attorney, Eugene Gold, dismissed the last case against him — a retrial of the attempted rape case — with new evidence exonerating Mr. Whitmore. On his release from custody that day, Mr. Whitmore said that what he felt was “just beyond expressing,” adding “I’m not bitter. I appreciate greatly what the D.A. did.”

His life after prison was marked by depression and alcoholism, said T. J. English, author of “The Savage City: Race, Murder and a Generation on the Edge,” in which Mr. Whitmore’s life is chronicled.

Mr. Whitmore moved back to Wildwood, operated a commercial fishing boat for a time, and was later disabled in a boating accident. He was unemployed for long stretches.

Mr. Whitmore’s daughter Regina said he had children but never married.

Besides her, she said, his survivors include three other daughters, Aida, Sonya and Tonya, and two sons, George and James, all of whom have taken the name Whitmore, and more than 20 grandchildren.

“He told us about what happened to him,” she said. “But he said he never held it against anybody. He was always a very sweet man with us. He wanted us to grow up happy.”

This article has been revised to reflect the following correction:

Correction: October 15, 2012

An earlier version of the headline with this article incorrectly stated

the number of murders to which Mr. Whitmore confessed. It was three, not two.

    George Whitmore Jr., Falsely Confessed to 3 Murders in 1964, Dies at 68, NYT, 15.10.2012,






Sandusky Sentenced in Penn State Sex Abuse Case


October 9, 2012
The New York Times


BELLEFONTE, Pa. — Jerry Sandusky, a former Penn State assistant football coach, was sentenced Tuesday morning to 30 to 60 years in prison for sexually abusing boys, crimes that roiled the university community and shook one of major college football’s most prominent programs.

The ruling was handed down in Centre County Court by Judge John Cleland, and it essentially guaranteed that Sandusky, 68, would die in prison. The sentencing came roughly three and a half months after a jury found him guilty of 45 counts of child sexual abuse.

Sandusky, the jury determined, had abused 10 boys, all of them from disadvantaged homes. Sandusky used his connections to the Penn State football program, as well as his own charity for disadvantaged youth, the Second Mile, to identify potential victims, get close to them and then sexually violate them.

In a recorded statement broadcast on a Penn State radio station Monday night, a defiant Sandusky said: “They can take away my life, they can make me out as a monster, they can treat me as a monster, but they can’t take away my heart. In my heart, I know I did not do these alleged, disgusting acts. My wife has been my only sex partner and that was after marriage.”

Sandusky arrived at the court Tuesday dressed in a red prison outfit and looking thinner than he had at his trial. He spoke for about 15 minutes before the sentence was handed down, again denying that he had abused the boys.

Cleland said Sandusky’s ability to deceive those who trusted him and thought so highly of him was what made his acts so “heinous.”

“I’m not going to sentence you to centuries in prison, although the law will permit that,” Cleland said, though he added that he expected Sandusky to be in prison for the rest of his life.

Sandusky, in remarks that at times seemed to resemble a pregame motivational speech, painted a picture of his life in prison. He used his small cell, with four cinder block walls, as a metaphor. On his 46th wedding anniversary, he said, he rolled over in bed expecting his wife, Dottie, to be there. Instead, he literally hit the wall.

Casting himself in the role of an underdog fighting against a conspiracy to find him guilty, Sandusky mentioned how “Seabiscuit” was one of his favorite movies. He read aloud a letter from a boy who described Sandusky as a savior for his life and called him Touchdown Jerry. And he emphasized how he brought joy to children through activities like water balloon fights.

He became emotional when discussing how he had not been able to see his family. And when he declared that he and his family would continue to smile despite his conviction and sentencing, his voice caught and he was visibly shaken.

Sandusky’s crimes have exacted a tremendous toll on Penn State. Within days of the grand jury indictment of Sandusky being made public in November 2011, Joe Paterno, the football team’s famed head coach and a patriarchal figure at the university, was fired. He had been alerted to at least one of Sandusky’s attacks on a boy. Within months, Paterno was dead of cancer at age 85.

The university’s president, Graham B. Spanier, was also dismissed, and the Penn State community found itself confronting the idea that it had placed the interests of its football team above concern for at-risk children.

A seven-month investigation conducted by Louis J. Freeh, a former director of the F.B.I., determined that Penn State’s leaders — most prominently Spanier; Paterno; the former university vice president Gary Schultz; and the athletic director Tim Curley — disregarded the welfare of Sandusky’s victims.

Freeh’s report drew on 430 interviews and a review of more than three million e-mails. But when it was released in July, after Sandusky had been convicted, some Penn State supporters, including Paterno’s family, viewed it as a flawed and incomplete rendering of what happened, not as binding fact.

The N.C.A.A., relying on the Freeh report, fined the university $60 million and imposed a four-year postseason ban and a hefty scholarship reduction on the football team. It also vacated all football victories since 1998, when the sexual assaults documented in the grand jury indictment against Sandusky were believed to have begun. That means that Paterno no longer has the most career coaching victories in major college football.

Though Sandusky will now almost certainly spend the rest of his life in prison, the larger case is far from settled. Four of Sandusky’s victims are suing the university. Victim 1, as he has been called in court, has written a book set to be released Oct. 23.

Mike McQueary, the former assistant coach who testified to seeing Sandusky sexually abuse a boy in the shower on Penn State’s campus in 2001, sued the university last week for misrepresentation and defamation, saying the university had mistreated him since Sandusky’s actions became public. McQueary had reported the incident to Paterno, who was faulted for not responding aggressively, and other Penn State officials.

Curley, who is on leave, and Schultz, a former senior vice president, are scheduled to stand trial in January on charges of perjury and failing to report child sex abuse, relating to the incident McQueary reported in 2001. Last month Schultz and Curley asked to be tried separately, and both have pleaded not guilty.

    Sandusky Sentenced in Penn State Sex Abuse Case, NYT, 9.10.2012,






In Texas Conviction, an Immigrant Rallying Cry


September 26, 2012
The New York Times


GATESVILLE, Tex. — In January, Rosa Jimenez, an illegal Mexican immigrant, will have spent 10 years in prison in the bleak scrublands of Central Texas for a crime she says she did not commit: forcing a wad of paper towels down the throat of a toddler in her care, making him choke and ultimately die.

She sits here in the Mountain View Prison Unit, a maximum-security facility for women, folding prison laundry, reading Bible stories and praying for exoneration while her two children are brought up by foster parents. To some, Ms. Jimenez has become a symbol of the inequality of the American criminal justice system — a process that began with a 2007 Mexican documentary that showed the prosecutor saying of Ms. Jimenez, “Despite being from Mexico, she’s very intelligent,” and that enraged the mayor of her hometown.

At her trial, the defense’s medical witness — a forensic pathologist who was not an expert in pediatrics or choking, who cost far less than the experts her lawyers originally sought and who swore at prosecutors in the courthouse hall (and later acknowledged doing so on the witness stand) — came off as an amateur.

Thousands of poor Mexicans are in American prisons and, like Ms. Jimenez, were heavily outlawyered and outspent at trial. Her story is that of many like her, yet she has been cast as a kind of hero by some.

But not by Victoria Gutierrez, also an illegal Mexican immigrant and the mother of the dead child.

“Suddenly this is all about her coming here and making a life for herself as if she were the victim,” Ms. Gutierrez said. “We all did the same thing. This is not about her. It’s about my son. Her children are going to school. My son is dead.”

Still, the renewed attention on Ms. Jimenez’s case led to donations to pay for new lawyers and experts, and a Texas appeals judge eventually ordered a new trial. In April, however, the state’s Court of Criminal Appeals overturned that ruling, saying that while Ms. Jimenez’s lawyers were indeed “outclassed and outmatched,” she had a constitutional right only to a decent defense, not to a great one.

Now the United States Supreme Court is reviewing a petition for a retrial, a filing that was joined by Mexico’s president-elect, Enrique Peña Nieto, who contends that there is a widespread perception that Mexican nationals cannot get a fair trial in Texas, and says that is “bad for the citizens of both our countries.”

While the Supreme Court ponders the retrial request, the judge in the original trial, Jon Wisser, wrote an unusual letter to the district attorney last month saying that in his view, there was “a substantial likelihood” that Ms. Jimenez was not guilty. The Supreme Court has instructed the district attorney to respond before it takes any action.

It has been a remarkable set of developments for what began as a relatively routine case. Charlie Baird, the judge whose retrial order was reversed, believes Ms. Jimenez’s story has received such attention because it demonstrates something fundamental and troubling.

“This case shows that the poor are not on an equal footing — it’s not a fair fight,” said Mr. Baird, who has also served on the Criminal Court of Appeals and is now retired. “The state had unlimited resources to avail itself of medical experts. Ms. Jimenez went begging for expert assistance. She had woefully inadequate funds to do so.”

Of the pathologist the defense eventually hired, “it would be hard to imagine a worse witness,” Mr. Baird said. “That’s what you end up with when you are given a pittance to hire an expert.”

The case of Ms. Jimenez offers lessons not only about the limits of the criminal justice system but about the lives of some of the millions of illegal Mexican immigrants striving to make it in this country. In an often tearful hourlong interview in prison, Ms. Jimenez recalled her decision to leave Mexico in 1999 at 17 when she came home hungry one day from school and found the refrigerator empty.

“My mother was a single mom, and I knew I had to do something to help her,” Ms. Jimenez said, sitting in a white prison uniform, speaking in careful, measured English learned in prison. “I threatened to quit school if she didn’t let me go to America.”

She arrived in Austin, Tex., where she worked as a housekeeper in a Hampton Inn and began studying for her high school equivalency diploma. Within a few years, she had a daughter, Brenda, and was pregnant with her son. She agreed to baby-sit for a neighbor, Ms. Gutierrez, who dropped off her son, Bryan, then a little over a year old, while she went to work at a restaurant with her brother.

Ms. Jimenez baby-sat for Bryan for seven months without incident. But one day in early 2003, while she was cooking and the two children were playing, she says, Bryan began to choke and turn blue. Ms. Jimenez says she tried to put her finger down his throat to remove the obstruction. She says she ran with him to a neighbor’s, where they called 911.

Emergency workers eventually removed a wad of paper towel from Bryan — five attached sheets, balled up and bloodied. By then, he had lost enough oxygen to be severely brain-damaged. His mother took him off life support three months later.

Medical experts brought in by the state testified that no 21-month-old could have put that much paper towel down his own throat, that his gag reflex would have stopped him. The only possible culprit, they said, was Ms. Jimenez, who, they surmised, must have grown frustrated with his crying. The jury agreed. She was convicted of murder and sentenced to 99 years in prison. She is eligible for parole in 2033.

At a 2010 hearing on whether there should be a retrial, experts in pediatric airway disorders testified that a child of Bryan’s age could indeed stuff five sheets of wet, balled-up paper towel into his mouth. In their view, his death was most likely accidental.

Mr. Wisser, the trial judge, said in his letter to the district attorney last month that Ms. Jimenez had no motive, no history of such activity and no evidence of substance abuse.

“I believe now, as I did at the time of the trial, that there is a substantial likelihood that the defendant was not guilty of this offense,” he wrote.

Because Ms. Jimenez is here illegally, her mother, who sells tamales back home in Ecatepec, a suburb of Mexico City, has been denied a visa to visit her in prison. But Ms. Jimenez does have support. Consular officials visit, as do her children. Ms. Gutierrez, who has a 4-year-old daughter now, still lives in Austin with her brother, Cerafin Gutierrez, who was like a surrogate father to Bryan. They both work long hours and pay their taxes. They speak excellent English. They consider themselves Americans.

When asked whether Ms. Jimenez might have been wrongly convicted, Mr. Gutierrez walks to the kitchen and pulls off five sheets from the roll of paper towels. Can anyone imagine a child putting that much paper down his own throat, he asks.

Ms. Gutierrez weeps softly through the conversation, a drawing of Bryan on the wall above her head. When she turns on the Spanish-language television news, she sometimes hears reports about how Rosa Jimenez was wrongly convicted and is now rotting unfairly in prison.

Ms. Gutierrez said she never believed the death was an accident. “He never put paper towel in his mouth,” she said of Bryan. “He wasn’t retarded. He was a normal baby. She’s become some kind of symbol, but she’s not my symbol. Why isn’t the president of Mexico concerned about my baby?”

Ms. Jimenez, who spoke no English when her trial took place, now prefers reading in English. In prison, she has been on a waiting list for five years to take a class. Lately she has been reading about the women of the Bible.

She said she was moved by the story of Bathsheba, whose husband was sent by King David to die at the battlefront so David could take her as his wife.

“I imagine her saying to David, ‘You can take my body, but nobody can take my mind,’ ” Ms. Jimenez said.

    In Texas Conviction, an Immigrant Rallying Cry, NYT, 26.9.2012,






Guilty Plea Is Expected in Rampage That Wounded Giffords


August 5, 2012
The New York Times


WASHINGTON (Reuters) — Jared Lee Loughner, the man accused of killing six people and wounding Representative Gabrielle Giffords in 2011, is expected to plead guilty in a Tucson court on Tuesday, a person in Washington familiar with the case said.

The person confirmed that the federal government believed Mr. Loughner was competent to stand trial and that it would argue that in court on Tuesday. Mr. Loughner is willing to change his plea to guilty at the previously scheduled hearing, the person said.

Psychiatric experts who have examined Mr. Loughner were scheduled to testify in a hearing on Tuesday that he was competent to stand trial and understood the 49 charges against him, The Los Angeles Times reported on Saturday.

The team of four lawyers representing Mr. Loughner did not respond to e-mailed requests for comment on Saturday.

Ms. Giffords, an Arizona Democrat seen as a rising star in the party, was holding one of her regular “Congress On Your Corner” meet-and-greet events outside a Tucson supermarket in January 2011 when she was shot in the head at close range. Six people, including a federal judge and a 9-year-old girl, were killed, and 12 others were wounded.

Mr. Loughner, 23, faces 49 criminal charges, including first-degree murder, in the rampage. A not guilty plea was entered on his behalf last year.

The Wall Street Journal, which also reported that Mr. Loughner would plead guilty, said Tuesday’s mental status hearing had been changed to a change-of-plea hearing, citing an official familiar with the case.

If United States District Judge Larry A. Burns were to determine at Tuesday’s hearing that Mr. Loughner was fit for trial, he could face the death penalty.

The Los Angeles Times said the details of the plea arrangement were not clear, nor was whether Mr. Loughner would plead guilty to all or just some of the charges in exchange for prison time rather than risk a death sentence at trial.

Tuesday’s hearing would have been Mr. Loughner’s fourth to determine his competence. Judge Burns ordered the hearing in June at the request of prosecutors and defense lawyers who wanted a status report after more than a year of treatment and legal wrangling over his mental competency.

Mr. Loughner was determined unfit in May 2011 after experts said he suffered from schizophrenia, disordered thinking and delusions.

He has been held at a United States Bureau of Prisons psychiatric hospital in Springfield, Mo., where he is being forcibly medicated.

Ms. Giffords resigned from the House of Representatives in January to focus on her recovery. Her former aide Ron Barber won a special election in June to fill her seat and must win re-election in November to serve a full two-year term.

    Guilty Plea Is Expected in Rampage That Wounded Giffords, NYT, 5.8.2012,






Colorado Suspect Faces 142 Counts in Shooting Rampage


July 30, 2012
The New York Times


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 death penalty.

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 car.

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 Shooting Rampage, NYT, 30.7.2012,






Judge Tells Zimmerman He Must Go Back to Jail


June 1, 2012
The New York Times


A Florida judge on Friday revoked the bond of George Zimmerman, who has been charged with second-degree murder in the shooting of Trayvon Martin, after state prosecutors argued that Mr. Zimmerman, with the help of his wife, had misled the court about his finances.

During an afternoon hearing in Sanford, Fla., a Seminole County Circuit Court judge, Kenneth R. Lester Jr., ordered Mr. Zimmerman, 28, a former neighborhood watch volunteer who himself aspired to be a judge, to surrender to authorities within 48 hours.

Judge Lester made his ruling shortly after an assistant state attorney, Bernardo de la Rionda, asserted that Mr. Zimmerman and his wife, Shellie, during a bail hearing on April 20, had “lied” and “were very deceptive” about assets available to them. That hearing cleared the way for Mr. Zimmerman’s release from jail on $150,000 bond. He had to put up 10 percent, or $15,000, to make bail.

The judge determined that Mr. Zimmerman, who has been in hiding because of concerns about his safety, had engaged in “material falsehoods.” At issue is the roughly $200,000 Mr. Zimmerman raised through a legal defense Web site, money that Mr. Zimmerman’s lawyer, Mark M. O’Mara, said he learned of several days after the bond hearing.

In an interview, Mr. O’Mara said: “Was it a misrepresentation? Possibly. It looks like they should have told the judge about the money. But they did not take the funds and run. They only used $5,000 towards the bond and, more significantly, when I found out about the money and suggested that they turn it over to me to put in trust, they did so immediately.”

Benjamin Crump, a lawyer for the Martin family, said, “Judge Lester’s decision is the most important ruling in this case so far because it focuses everyone’s attention back on the credibility of George Zimmerman, which is the crux of the matter in this case.” Mr. Martin, 17, who was unarmed, was killed on the night of Feb. 26 after an encounter with Mr. Zimmerman that turned violent.

Mr. Martin had been walking through the gated community in Sanford, where he was staying and where Mr. Zimmerman lived. The case created a national uproar after Mr. Zimmerman was not initially arrested, raising questions about Florida’s broad self-defense law and racial profiling.

On April 11, a special prosecutor, Angela B. Corey, charged Mr. Zimmerman with second-degree murder. Mr. Zimmerman, who told the police he acted in self-defense, has pleaded not guilty.

In a motion filed Friday, Mr. de la Rionda contended that recordings of phone conversations Mr. Zimmerman and his wife had in the days before Mr. Zimmerman’s bond hearing about how to pay his possible bond demonstrated that the couple had misrepresented its financial circumstances to the court. At Mr. Zimmerman’s bond hearing, Ms. Zimmerman testified that she was unaware of how much money his Web site had collected.

“During the jail phone calls, both of them spoke in code to hide what they were doing,” the motion said. According to the motion, credit union statements show that on the day before the bond hearing, Mr. Zimmerman and his wife had access to more than $135,000.

Mr. de la Rionda also said that Mr. Zimmerman had failed to hand over a second passport, an issue played down by Judge Lester.

    Judge Tells Zimmerman He Must Go Back to Jail, NYT, 1.6.2012,






Rutgers Webcam-Spying Defendant

Is Sentenced to 30-Day Jail Term


May 21, 2012
The New York Times


NEW BRUNSWICK, N.J. — A judge here sentenced Dharun Ravi to 30 days in jail on Monday for using a webcam to spy on his roommate having sex with a man, a punishment that angered prosecutors and did little to quiet the debate over using laws against hate crimes to fight antigay bias.

His roommate, Tyler Clementi, killed himself in September 2010, two days after discovering that Mr. Ravi had spied on him in their room at Rutgers University, galvanizing national concern about suicide among gay teenagers.

Mr. Ravi had faced up to 10 years in prison after a jury convicted him of all 15 counts against him, which included bias intimidation, invasion of privacy and tampering with a witness and evidence.

Prosecutors vowed to appeal, and the sentence surprised even many who had called for leniency, as it came after an extended scolding by Judge Glenn Berman in Superior Court in Middlesex County.

“I heard this jury say guilty 288 times — 24 questions, 12 jurors, that’s the multiplication,” the judge told Mr. Ravi, recalling the questionnaire jurors filled out in arriving at the verdict. “And I haven’t heard you apologize once.”

“I do not believe he hated Tyler Clementi,” the judge told a courtroom packed on one side with supporters of Mr. Ravi and on the other with those of the Clementi family. “I do believe he acted out of colossal insensitivity.”

Prosecutors and Mr. Clementi’s family, who had addressed reporters with relief bordering on buoyancy following the verdict two months ago, canceled a news conference planned for after the sentencing. Mr. Ravi’s family collapsed into an embrace with his lawyers. Just moments earlier, his mother, Sabitha Ravi, had sobbed while imploring the judge to spare her son prison time.

“The media misconstrued the facts to the public and misconceptions were formed,” she said, telling how she watched helplessly as her son sank into despair after he was charged and dropped out of Rutgers, barely eating or leaving the house. “All I could do was hug him and cry.”

At her tears, Mr. Ravi himself broke down crying, the first time since the beginning of the trial that he had publicly shown more than a glimpse of emotion.

Mr. Ravi, 20, was not charged with causing Mr. Clementi’s death, but the suicide hung heavily over the trial, and over the sentencing on Monday. Mr. Clementi’s mother, father and brother spoke before the judge delivered his decision, breaking down occasionally as they recalled his accomplishment and his promise, and the pain of losing him and of reliving the agony of his final days as they endured three weeks of courtroom testimony.

“I cannot imagine the level of rejection, isolation and disdain he must have felt from his peers,” Tyler’s brother James Clementi said. “Dharun never bothered to care about the harm he was doing to my brother’s heart and mind. My family has never heard an apology, an acknowledgment of any wrongdoing.”

His mother, Jane Clementi, also criticized students who knew about the spying from Mr. Ravi’s Twitter feeds. “How could they all go along with such meanness?” she said. “Why didn’t any one of them speak up and try to stop it?”

Judge Berman said he wanted to impose a sentence that was “constructive” and would provide a measure of closure — “though I don’t know how the Clementis will ever get closure,” he said. He said he imposed the jail time for witness and evidence tampering and for lying to the police. But for the bias intimidation convictions, he gave Mr. Ravi three years’ probation.

The judge did not explicitly say why he deviated so far from the maximum sentence. But he said he believed the State Legislature had intended prison time to be attached to crimes of violence, and there had been none.

Mr. Ravi’s lead lawyer, Steven Altman, had earlier read from a presentencing memo by a corrections officer who had interviewed Mr. Ravi and recommended against incarceration.

Mr. Ravi, who came to this country from India as a child, remains a felon and could face deportation. But the judge said he would recommend against that.

Gillian M. Christensen, a spokeswoman for Immigration and Customs Enforcement, said the agency was “in the process of reviewing documents relating to the conviction and sentencing” of Mr. Ravi, but would not comment further.

Some immigration lawyers pointed on Monday to a clause declaring that a legal resident, or green card holder, like Mr. Ravi can be deported if convicted of two or more crimes involving “moral turpitude,” as long as neither crime arose out of a single scheme.

Thomas E. Moseley, an immigration lawyer based in Newark, said that if the immigration authorities “wanted to be really aggressive,” they might argue that the tampering crime was separate from the bias crime.

Judge Berman also sentenced Mr. Ravi to 300 hours of community service, counseling about cyberbullying and what he called “alternate lifestyles,” and approximately $11,000 in fees. Most of the money is to be used to help victims of bias crimes.

Mr. Clementi, an 18-year-old who had recently come out to his parents, and Mr. Ravi were three weeks into their freshman year at Rutgers when Mr. Clementi asked if he could have the room for the evening so he could be alone with a man, whom he had met on a Web site for gay men.

In court, prosecutors presented a long trail of electronic evidence to show how Mr. Ravi had set up a webcam to spy on the men, then gone into a friend’s room and watched. He caught only a glimpse of Mr. Clementi and his visitor in an embrace, then sent out Twitter messages announcing that he had seen his roommate “making out with a dude.” He set up the camera again two days later and urged others to watch. But by then, Mr. Clementi had seen the Twitter posts and turned off the webcam.

Mr. Clementi, an accomplished violinist from Ridgewood, N.J., checked Mr. Ravi’s Twitter feed 38 times and filed a request for a room change — and then jumped to his death from the George Washington Bridge. In court on Monday, his mother said she feared Mr. Ravi’s Twitter posts were the last thing her son saw before he jumped.

Many gay rights advocates had hailed the jury’s verdict as a bold strike against bias, a message that bullying of gay men and lesbians should not be dismissed as a mere prank.

But other prominent gay commentators argued that while what Mr. Ravi did was repugnant, it was not the kind of sustained or aggressive behavior that constitutes bullying.

The sentence similarly divided them.

Steven Goldstein, the chairman of Garden State Equality, a New Jersey gay rights group that pushed for the state to pass its strict antibullying statutes after Mr. Clementi’s death, said the sentence was lighter than what many shoplifters received.

“We have opposed throwing the book at Dharun Ravi,” Mr. Goldstein said in a statement. “But we have similarly rejected the other extreme, that Ravi should have gotten no jail time at all, and today’s sentencing is closer to that extreme than the other.”

William Dobbs, who had attended rallies supporting Mr. Ravi, said the judge was reflecting the discomfort many gay rights campaigners expressed at the use of hate crimes to prosecute Mr. Ravi.

“The judge had to control a backlash to an out-of-control prosecution,” he said. “The number of charges, the severity and the potential penalties, even the amount of resources devoted to this trial, was out of all proportion to the incident.”

Bruce J. Kaplan, the Middlesex County prosecutor, issued a statement after the sentencing, saying that while his office had not requested the maximum prison term, “it was expected that his conviction on multiple offenses of invading the privacy of two victims on two separate occasions, four counts of bias intimidation against Tyler Clementi, and the cover-up of those crimes would warrant more than a 30-day jail term.”

Still, even some jurors continued to struggle over the appropriate sentence. One, Susan Matiejunas, said she had watched the proceedings on television all morning and was surprised.

“Thirty days is a slap on the wrist,” she said. “Six months to a year would have been more suitable, since we convicted him on so many counts.”

Ms. Matiejunas telephoned later to say she had reconsidered.

“The kid has spent two years in purgatory just waiting for all of this to end,” she said. “I think probably 30 days really is quite enough on top of all that.”

Nate Schweber contributed reporting from New Brunswick, and Hannah Miet and Kirk Semple from New York.

    Rutgers Webcam-Spying Defendant Is Sentenced to 30-Day Jail Term, NYT, 21.5.2012,






Study: 2,000 Convicted Then Exonerated in 23 Years


May 21, 2012
The New York Times


WASHINGTON (AP) — More than 2,000 people who were falsely convicted of serious crimes have been exonerated in the United States in the past 23 years, according to a new archive compiled at two universities.

There is no official record-keeping system for exonerations of convicted criminals in the country, so academics set one up. The new national registry, or database, painstakingly assembled by the University of Michigan Law School and the Center on Wrongful Convictions at Northwestern University School of Law, is the most complete list of exonerations ever compiled.

The database compiled and analyzed by the researchers contains information on 873 exonerations for which they have the most detailed evidence. The researchers are aware of nearly 1,200 other exonerations, for which they have less data.

They found that those 873 exonerated defendants spent a combined total of more than 10,000 years in prison, an average of more than 11 years each. Nine out of 10 of them are men and half are African-American.

Nearly half of the 873 exonerations were homicide cases, including 101 death sentences. Over one-third of the cases were sexual assaults.

DNA evidence led to exoneration in nearly one-third of the 416 homicides and in nearly two-thirds of the 305 sexual assaults.

Researchers estimate the total number of felony convictions in the United States is nearly a million a year.

The overall registry/list begins at the start of 1989. It gives an unprecedented view of the scope of the problem of wrongful convictions in the United States and the figure of more than 2,000 exonerations "is a good start," said Rob Warden, executive director of the Center on Wrongful Convictions.

"We know there are many more that we haven't found," added University of Michigan law professor Samuel Gross, the editor of the newly opened National Registry of Exonerations.

Counties such as San Bernardino in California and Bexar County in Texas are heavily populated, yet seemingly have no exonerations, a circumstance that the academics say cannot possibly be correct.

The registry excludes at least 1,170 additional defendants. Their convictions were thrown out starting in 1995 amid the periodic exposures of 13 major police scandals around the country. In all the cases, police officers fabricated crimes, usually by planting drugs or guns on innocent defendants.

Regarding the 1,170 additional defendants who were left out of the registry, "we have only sketchy information about most of these cases," the report said. "Some of these group exonerations are well known; most are comparatively obscure. We began to notice them by accident, as a byproduct of searches for individual cases."

In half of the 873 exonerations studied in detail, the most common factor leading to false convictions was perjured testimony or false accusations. Forty-three percent of the cases involved mistaken eyewitness identification, and 24 percent of the cases involved false or misleading forensic evidence.

In two out of three homicides, perjury or false accusation was the most common factor leading to false conviction. In four out of five sexual assaults, mistaken eyewitness identification was the leading cause of false conviction.

Seven percent of the exonerations were drug, white-collar and other nonviolent crimes, 5 percent were robberies and 5 percent were other types of violent crimes.

"It used to be that almost all the exonerations we knew about were murder and rape cases. We're finally beginning to see beyond that. This is a sea change," said Gross.

Exonerations often take place with no public fanfare and the 106-page report that coincides with the opening of the registry explains why.

On TV, an exoneration looks like a singular victory for a criminal defense attorney, "but there's usually someone to blame for the underlying tragedy, often more than one person, and the common culprits include defense lawyers as well as police officers, prosecutors and judges. In many cases, everybody involved has egg on their face," according to the report.

Despite a claim of wrongful conviction that was widely publicized last week, a Texas convict executed two decades ago is not in the database because he has not been officially exonerated. Carlos deLuna was executed for the fatal stabbing of a Corpus Christi convenience store clerk. A team headed by a Columbia University law professor just published a 400-page report that contends DeLuna didn't kill the clerk, Wanda Jean Lopez.



Center on Wrongful Convictions: http://tinyurl.com/dd9s2o

Professor Samuel Gross: http://tinyurl.com/7rrauxh

    Study: 2,000 Convicted Then Exonerated in 23 Years, NYT, 21.5.2012,






Colorado Rejects Same-Sex Civil Unions


May 14, 2012
The New York Times


DENVER — A bill that would have allowed civil unions for same-sex couples in Colorado was defeated on Monday night during a special legislative session called by Gov. John W. Hickenlooper to debate the issue.

The legislation was voted down by Republican lawmakers on a 5-to-4 vote along party lines after more than two hours of emotional testimony in the State, Veterans and Military Affairs Committee, where it was assigned Monday by Republican leadership in the House of Representatives.

“We saw this bill die even though a majority of members of the Senate and a majority of members of the House and the governor, as well as a vast majority of Coloradans, want to see this become law,” said Representative Mark Ferrandino of Denver, one of four openly gay state legislators and a sponsor of the bill. “It is very unfortunate. Families across Colorado are going to have to wait longer for equal rights in our state.”

Supporters had come tantalizingly close to passing the legislation this year after several Republicans decided to break party ranks and back it.

The bill had cleared a number of committees and the full State Senate, but lawmakers reached an impasse last week and the bill was never brought to the House floor for a full vote before the legislative session concluded.

Supporters accused Republicans of stalling to prevent debate on the bill, while Republicans argued that Democrats had waited until the end of the session before pushing the bill through to force a political showdown.

The stalemate, which also resulted in dozens of other bills being left on the calendar, prompted the call for a special session by Mr. Hickenlooper, who described civil unions as “a fundamental question of fairness and civil rights” in a letter to legislators.

But if the special session breathed fresh life back into the legislation, it was short-lived.

On Monday, despite the urgings of civil-union supporters who rallied at the Capitol in Denver, the House speaker, Frank McNulty, a Republican from Highlands Ranch, assigned the bill to the state affairs committee, which was dominated by opponents of the legislation.

In a statement, Mr. McNulty accused Mr. Hickenlooper and Democrats of “pushing a last-minute, divisive attack on our traditional views on marriage” for their short-term political gain.

In voting against the bill, Representative Don Coram, a Republican from Montrose, said he was especially torn, because he has a gay son. “This is a situation that is very close to my heart,” he said. “But it’s very difficult because I also represent 75,000 people in southwest Colorado. What you are asking me to do here is to invalidate the vote of six years ago.”

Mr. Coram was referring to a 2006 amendment approved by the state’s voters that defined marriage as being between a man and a woman.

The debate over civil unions in Colorado comes as North Carolina voters last Tuesday approved an amendment that would ban same-sex marriages, partnerships and civil unions. The next day, President Obama said that he now supported same-sex marriage.

    Colorado Rejects Same-Sex Civil Unions, NYT, 14.5.2012,






Guilty Verdict in Murder Case That Involved Singer’s Family


May 11, 2012
The New York Times


CHICAGO — The former brother-in-law of Jennifer Hudson, the singer and actress, was convicted on Friday of murdering her mother, her brother and her young nephew.

With a crush of news and entertainment reporters monitoring her every move, Ms. Hudson, who rose to national fame from one of this city’s toughest neighborhoods, attended the trial, which ran nearly three weeks, and appeared as prosecutors’ first witness, saying she had always disliked William Balfour, now convicted in the case.

“I would tell her over and over again not to marry William,” Ms. Hudson testified about her sister, Julia, who eventually did.

Calling more than 80 witnesses, prosecutors said Mr. Balfour had shot and killed members of the Hudson family in their home in the Englewood neighborhood in October 2008 after growing jealous and possessive of Julia Hudson.

Mr. Balfour’s defense team had characterized the case as largely circumstantial, suggesting that the police hastily focused on Mr. Balfour in a rush to close a case that drew national headlines. Mr. Balfour, 31, faces life in prison.

Prosecutors said Mr. Balfour had been to the Hudson family home on the morning of the shootings, and witnesses said that he had previously been seen with the gun that was used. But no DNA evidence or fingerprints proved Mr. Balfour’s involvement, and defense lawyers told jurors that the work of Ms. Hudson’s brother, Jason — selling drugs, the defense team said — was more likely what led to the shootings.

The jury, six men and six women, deliberated during parts of three days, and had indicated not long before they announced their verdict that they were split. They were sequestered during deliberations in the high-profile case.

The daily machinations of the trial had little to do with Ms. Hudson’s celebrity, which was, nonetheless, ever-present. Reports on the trial noted her tears, her bowed head, her fourth-row seat, her departures from the courtroom and her clothes.

Ms. Hudson drew national attention with appearances on “American Idol” in 2004, then went on to win an Oscar for her role in “Dreamgirls.” In a way, the trial was a reminder of how much her life has been altered.

Ms. Hudson, who testified that she began singing at age 7 at a Baptist church here, no longer lived in her mother’s home in Englewood, a neighborhood troubled by violence and where she said her sister had worked many jobs, including at a Burger King and as a school bus driver. Not long before the deaths, Ms. Hudson told jurors, she had left signed, blank checks for her mother, Darnell Donerson, to pay for items like the family’s gas bill, had bought her sister a computer and had given her brother an S.U.V., apparently the same one that the nephew, Julian King, 7, was later found dead inside.

    Guilty Verdict in Murder Case That Involved Singer’s Family, NYT, 11.5.2012,






Connecticut Passes Marijuana Bill


May 5, 2012
The New York Times


HARTFORD (Reuters) — The Connecticut Senate passed a bill on Saturday legalizing the use of marijuana for medical purposes, with tight restrictions intended to avoid the problems that have plagued some of the other states where it is now legal.

After nearly 10 hours of debate, the Senate voted 21 to 13 in favor of the measure, which already cleared the House.

Gov. Dannel P. Malloy, a Democrat, is expected to sign the bill. Once he does, Connecticut will join 16 other states and the District of Columbia in allowing the medical use of marijuana.

Connecticut’s legislation calls for tight regulation and seeks to avoid disagreements with the federal government.

Under the bill, patients and their caregivers must register with the Department of Consumer Protection. In addition, their doctors must certify that there is a medical need for marijuana to be dispensed, like in the case of debilitating diseases like cancer, glaucoma, AIDS, Parkinson’s, multiple sclerosis or epilepsy.

The medical marijuana would be dispensed only by pharmacists with a special license.

    Connecticut Passes Marijuana Bill, NYT, 5.5.2012,






No Charges for Officer in Killing of Man, 68


May 3, 2012
The New York Times


A grand jury voted not to indict a White Plains police officer who shot and killed a 68-year-old former correction officer and former Marine in his apartment last November, the Westchester County district attorney said Thursday.

District Attorney Janet DiFiore called the shooting “a tragedy on many levels.” But she said the grand jury had concluded that “there was no reasonable cause” to indict Officer Anthony Carelli, who fired the shot that killed the victim, Kenneth Chamberlain Sr.

Officer Carelli and several other officers were sent to Mr. Chamberlain’s apartment after his medical-alert pendant went off and he did not respond to a call from a medical-alert agency operator.

After Ms. DiFiore announced the grand jury’s decision, the White Plains police released more than 200 pages of documents about the encounter, along with audio and video recordings made as it unfolded. In one report, Officer Stephen Demchuk described Mr. Chamberlain as “acting irrational” when the police arrived and said he stuck an eight-inch butcher knife through a crack in the door.

Mr. Chamberlain made “continuous slashing motions towards my head and face,” said Officer Demchuk, who was ordered to break down the door, but added that Mr. Chamberlain held it shut “with the assistance of a chair.”

The officers eventually broke down the front door. Four officers entered and tried to subdue Mr. Chamberlain, first with a Taser weapon, then with a shotgun loaded with beanbag-type ammunition intended to disable someone without causing serious injury. Officer Demchuk said Officer Carelli fired his .40-caliber pistol when Mr. Chamberlain went after another police officer “with the butcher knife raised.”

Mr. Chamberlain’s family issued a statement saying they were “profoundly saddened” that the grand jury had not found reason to charge Officer Carelli. Lawyers for the family said they would ask the Justice Department to investigate the case.

David E. Chong, the White Plains public safety commissioner, whose department oversees the police, said an internal review would now be finished.

Andrew C. Quinn, a lawyer for Officer Carelli, did not return a call seeking comment.

Ms. DiFiore said the grand jury had heard from 42 witnesses, 21 of whom were civilians — including the emergency room physician who examined Mr. Chamberlain.

Ms. DiFiore said that one officer, who was not identified, used a racial epithet outside the first-floor apartment. “The use of a racial epithet in any context is offensive to the dignity of all of us,” she said. When spoken by a police officer, she added, “It’s intolerable.” But she said the grand jury had not found it to be criminal. Mr. Chamberlain was black. Officer Carelli is white, The Associated Press has reported.

The episode began when Mr. Chamberlain, who could not walk more than a short distance without becoming short of breath, apparently set off his medical-alert pendant accidentally. (An autopsy showed later that his blood-alcohol level was 0.11.)

Responding to the alarm signal, the system operator tried to establish contact using a two-way speaker in the apartment. “Mr. Chamberlain, are you O. K.?” the operator asked.

When he did not reply, the operator arranged for an ambulance. Patrol cars were also sent.

Randolph M. McLaughlin, a lawyer for Mr. Chamberlain’s family, disputed the police account. He said Mr. Chamberlain had not thrust a knife at Officer Demchuk’s face, as he described, although Mr. McLaughlin said video, which had been recorded by cameras in the officers’ Taser weapons, showed “a metal object coming out” from behind the door.

He also said that Officer Carelli fired his pistol immediately after the shotgun with the beanbag ammunition had been fired. “The shots are beanbag, beanbag, beanbag, gun,” he said. “They weren’t giving him a chance, or themselves, or react.”

The documents the police released on Thursday indicated that the officers insisted on going in because they believed someone else might have been in the apartment. They had heard Mr. Chamberlain talking to someone — someone he addressed, according to one of the police reports, as “Mr. President.”


Michael Powell contributed reporting.

    No Charges for Officer in Killing of Man, 68, NYT, 3.5.2012,






Criminal Charges for 13 in Florida A&M Hazing Death


May 2, 2012
The New York Times


ORLANDO, Fla. — Thirteen people were criminally charged on Wednesday with hazing in the death of a Florida A&M University marching band member who was beaten after a football game last fall.

Of those charged in the death of the band member, Robert Champion, 11 were charged with felonies and 2 with misdemeanors, said Lawson Lamar, the state attorney for the Ninth Judicial Circuit of Florida, in a news conference here. More than 20 people will also face misdemeanor charges in the hazing of other students at Florida A&M, he said.

The Champion case is one of the largest criminal cases ever built on a hazing death, legal experts say. Prosecutors would not say whether all of the suspects are fellow students.

“Hazing is something that will continue to happen out of sight until a student like Robert Champion pays the ultimate price,” Mr. Lamar said.

Police officers across the state are working to arrest the suspects, who have not been identified. A charge of felony hazing carries up to six years in prison.

The case, which turned a national spotlight on hazing within elite marching bands, grew out of a beating that Mr. Champion, 26, received in Orlando on Nov. 19 after a football game against a rival school, Bethune-Cookman University. Prosecutors said Mr. Champion was beaten, kicked and suffocated by fellow band members during a hazing ritual aboard a bus.

Under a tradition known as “Crossing Bus C,” students would walk down the aisle of the bus while classmates punched them. Mr. Champion was found lifeless on the bus and pronounced dead at a hospital.

Florida passed a strict antihazing law in 2005 after a college student drowned during a fraternity event. The law makes it easier for prosecutors to treat hazing as a felony.

The Champion family had hoped for the state to bring murder or manslaughter charges, said their lawyer, Christopher M. Chestnut. “This is bittersweet for them,” he said. “They were hoping for more severe charges.”

That would have been a legal challenge, said George R. Dekle, a law professor at the University of Florida. With so many students participating in the hazing, he said, it would be difficult to persuade jurors that one person’s actions caused Mr. Champion’s death, as a murder charge requires.

Mr. Chestnut said he planned to sue the university and possibly the band director. The family has already sued the company that owns the bus, saying the driver stood by while hazing took place.

The university said in a statement that it was working to prevent another tragedy. It has formed an antihazing committee and designated a $50,000 grant for faculty members to research the nature and extent of hazing on campus.

Mr. Champion, a clarinet player from Decatur, Ga., had dreamed since high school of attending Florida A&M, a 13,000-student historically black university in Tallahassee.

The school’s famed band, known as the Marching 100, has performed at Super Bowl halftime shows and President Obama’s inauguration. Mr. Champion tried out twice before being selected as one of six drum majors in 2010.

His death resulted from “blunt force trauma” that caused hemorrhaging and left deep bruises on his chest, arms, shoulders and back, according to a medical examiner’s report.

His parents say he was beaten so severely because he had voiced concerns about the band’s hazing culture. They also say he was bullied because he was gay.

Since Mr. Champion’s death, Florida A&M has faced a series of reports of abuse and hazing.

In December, three band members were arrested and charged with beating a female classmate so severely that her thigh was broken and she had blood clots in her legs. And last month, two music professors resigned after being accused of participating in hazing fraternity pledges in 2010.

The university has suspended the band and said it might not perform during this fall’s football season.

The band’s director, Julian White, was initially fired and then placed on paid administrative leave.

The case has raised awareness at universities across the country that hazing can bring criminal and legal repercussions, said Susan Lipkins, a psychologist who specializes in college hazing.

“It’s getting more common to see these issues handled in court,” she said. “Universities have turned a blind eye for a long time. But they can no longer afford to do that.”

    Criminal Charges for 13 in Florida A&M Hazing Death, NYT, 2.5.2012,






‘I Am Sorry,’ Zimmerman Says as Bail Set at $150,000


April 20, 2012
The New York Times


SANFORD, Fla. — Speaking publicly about the case for the first time, George Zimmerman, the man accused of second-degree murder in the shooting of Trayvon Martin, an unarmed 17-year-old, briefly took the witness stand at his bail hearing on Friday and apologized to the teenager’s parents.

“I wanted to say I am sorry for the loss of your son,” Mr. Zimmerman, 28, said in a soft voice from the stand, dressed in a dark suit, with his hands locked in cuffs, and shackles at his feet and waist. “I did not know how old he was. I thought he was a little bit younger than I am. And I did not know if he was armed or not.”

Mr. Martin’s parents, Tracy Martin and Sybrina Fulton, sitting in the second row of the courtroom here, showed little emotion during Mr. Zimmerman’s remarks. They did not comment after the hearing ended, hurrying to a waiting car.

One of their lawyers, Benjamin Crump, said later that Mr. Martin’s family was “completely devastated” by the Seminole County Circuit Court judge’s decision to allow Mr. Zimmerman to be released from jail on $150,000 bail, which was considerably less severe than the prosecutors’ request for no bail or $1 million.

Describing Mr. Zimmerman’s apology from the stand as “self-serving,” Mr. Crump said he considered it a ploy to help win his release from jail and curry favor with the court and the public through the news media.

“They have to accept the court’s decision,” he said about Mr. Martin’s parents. “But they are praying that his freedom is only temporary because the pain Zimmerman caused them is going to last forever. They are never getting Trayvon back.”

Mr. Martin, a high school student, was shot and killed on Feb. 26 while walking through the gated community where he was staying and where Mr. Zimmerman was a neighborhood watch volunteer. The case incited a national uproar, including protests across the country, after the police did not arrest Mr. Zimmerman, raising questions about Florida’s expansive self-defense law and racial profiling.

A special prosecutor, Angela B. Corey, was assigned to the case by Gov. Rick Scott amid criticism of the way it was being handled by local authorities, and she brought second-degree murder charges against Mr. Zimmerman last week.

Mark M. O’Mara, Mr. Zimmerman’s lawyer, said he had asked that Mr. Zimmerman be allowed to apologize privately to the parents, but the request was rebuffed. He said Mr. Zimmerman wanted to answer the three questions that he had heard Mr. Martin’s mother raise during a television interview.

“He answered very specifically the three questions posed by the mother: Why haven’t you apologized? Did you know he was a teenager? And did you know he was unarmed?” Mr. O’Mara said.

At the end of the hearing, which ran more than two hours, the judge, Kenneth R. Lester Jr., set bail and imposed multiple restrictions on Mr. Zimmerman’s release, including no contact with Mr. Martin’s family or with witnesses to the shooting. Judge Lester also banned access to alcohol or firearms, and ordered that his movements be monitored by an electronic bracelet. He set a curfew that would require Mr. Zimmerman to remain at home from 7 p.m. until 6 a.m. and ordered him to check in with the authorities every three days.

Mr. Zimmerman will not be released from jail for several days, Mr. O’Mara said, because it will take time to arrange financing for the bond and find a secure location for Mr. Zimmerman, who has received death threats.

Testifying by telephone during the proceeding because of concern for their safety, Mr. Zimmerman’s family members, including his wife, Shellie Zimmerman, assured the judge that they would closely monitor his whereabouts and notify the authorities if they lost contact with him for any reason before his pending trial.

As part of his effort to win Mr. Zimmerman’s release on bond, Mr. O’Mara challenged the prosecution’s case, going through the state’s probable cause affidavit line by line, turning the bail hearing into what appeared to be a foretaste of the trial.

He aggressively questioned a state investigator, Dale Gilbreath, about the accusation that Mr. Zimmerman had racially profiled Mr. Martin, and he demanded to know what evidence the state had for the statement that “Zimmerman confronted Martin and a struggle ensued.”

“Do you know who started the fight?” Mr. O’Mara asked Mr. Gilbreath.

“Do I know?” Mr. Gilbreath said. “No.”

Mr. O’Mara then asked Mr. Gilbreath if the state had any evidence to contradict Mr. Zimmerman’s statement to the police that he had been making his way back to his car when he was punched by Mr. Martin. Mr. Zimmerman told investigators he shot Mr. Martin in self-defense after Mr. Martin banged his head on concrete, covered his nose and mouth and reached for his gun.

Mr. Gilbreath responded, “No.”

While on the stand, Mr. Zimmerman was sharply questioned by Bernardo de la Rionda, an assistant state attorney.

“Do you agree that you changed your story?” Mr. de la Rionda asked, referring to the five separate statements that Mr. Zimmerman gave the police about the shooting.

“Absolutely not, “ Mr. Zimmerman replied in a firm voice.


Serge F. Kovaleski reported from Sanford, and Jennifer Preston from New York.

    ‘I Am Sorry,’ Zimmerman Says as Bail Set at $150,000, NYT, 20.4.2012,






Embarrassed by Bad Laws


April 16, 2012
The New York Times


A year ago, few people outside the world of state legislatures had heard of the American Legislative Exchange Council, a four-decade-old organization run by right-wing activists and financed by business leaders. The group writes prototypes of state laws to promote corporate and conservative interests and spreads them from one state capital to another.

The council, known as ALEC, has since become better known, with news organizations alerting the public to the damage it has caused: voter ID laws that marginalize minorities and the elderly, antiunion bills that hurt the middle class and the dismantling of protective environmental regulations.

Now it’s clear that ALEC, along with the National Rifle Association, also played a big role in the passage of the “Stand Your Ground” self-defense laws around the country. The original statute, passed in Florida in 2005, was a factor in the local police’s failure to arrest the shooter of a Florida teenager named Trayvon Martin immediately after his killing in February.

That was apparently the last straw for several prominent corporations that had been financial supporters of ALEC. In recent weeks, McDonald’s, Wendy’s, Intuit, Mars, Kraft Foods, Coca-Cola and PepsiCo have stopped supporting the group, responding to pressure from activists and consumers who have formed a grass-roots counterweight to corporate treasuries. That pressure is likely to continue as long as state lawmakers are more responsive to the needs of big donors than the public interest.

The N.R.A. pushed Florida’s Stand Your Ground law through the State Legislature over the objections of law enforcement groups, and it was signed by Gov. Jeb Bush. It allows people to attack a perceived assailant if they believe they are in imminent danger, without having to retreat. John Timoney, formerly the Miami police chief, recently called the law a “recipe for disaster,” and he said that he and other police chiefs had correctly predicted it would lead to more violent road-rage incidents and drug killings. Indeed, “justifiable homicides” in Florida have tripled since 2005.

Nonetheless, ALEC — which counts the N.R.A. as a longtime and generous member — quickly picked up on the Florida law and made it one of its priorities, distributing it to legislators across the country. Seven years later, 24 other states now have similar laws, thanks to ALEC’s reach, and similar bills have been introduced in several other states, including New York.

The corporations abandoning ALEC aren’t explicitly citing the Stand Your Ground statutes as the reason for their decision. But many joined the group for narrower reasons, like fighting taxes on soda or snacks, and clearly have little interest in voter ID requirements or the N.R.A.’s vision of a society where anyone can fire a concealed weapon at the slightest hint of a threat.

In a statement issued on Wednesday, ALEC bemoaned the opposition it is facing and claimed it is only interested in job creation, government accountability and pro-business policies. It makes no mention of its role in pushing a law that police departments believe is increasing gun violence and deaths. That’s probably because big business is beginning to realize the Stand Your Ground laws are indefensible.

    Embarrassed by Bad Laws, NYT, 16.4.2012,






States Seek Curb on Patient Bills for Costly Drugs


April 12, 2012
The New York Times


The hemophilia drug that saves 7-year-old William Addison from uncontrolled bleeding costs $100,000 a year. His family’s insurance pays virtually all of it.

But his mother, Victoria Kuhn, says she is terrified that the insurance company may start requiring patients to pay as much as a third of the cost of the drug. “I don’t know where we’d find $30,000,” said Ms. Kuhn, who lives in Falmouth, Me.

Spurred by patients and patient advocates like Ms. Kuhn, lawmakers in at least 20 states, from Maine to Hawaii, have introduced bills that would limit out-of-pocket payments by consumers for expensive drugs used to treat diseases like cancer, rheumatoid arthritis, multiple sclerosis and inherited disorders.

Pharmaceutical companies would also benefit from such legislation because high co-payments discourage patients from taking their medicines. The pharmaceutical giant Pfizer has been helping the legislative drive behind the scenes, even drafting some of the bills, according to legislators and patient advocates.

The bills aim to counter efforts by health plans to reduce the amount they pay for expensive medicines by making the patients pay a percentage, typically 20 to 35 percent, of the cost.

While some insurers have said the laws are unnecessary because of the federal health care law, backers say the state bills would supplement the federal law and take effect before 2014, when most of the federal law is to become operative. They say too much uncertainty remains about how the federal law will work and whether it will survive the challenge before the Supreme Court.

New York State passed the first law prohibiting such high patient payments in 2010. Vermont enacted a one-year moratorium that lasts until July 1. Maine’s governor, Paul LePage, signed a bill into law on Monday that would set a yearly cap on patient payments for such expensive drugs. Hearings on similar bills were held last month in Connecticut and Rhode Island. Delaware’s Health Care Commission just finished a study on the matter. And a bill that would cover all states was recently introduced in the House by David McKinley, a West Virginia Republican.

Insurance companies are pushing back, so some bills are dying, as in Washington State, or being watered down, as was the one in Maine. The insurers argue that reducing payments by users of the expensive drugs would raise premiums for everyone else.

“There’s no free dollars in the mix here,” Melvin N. Sorensen, a lobbyist for insurers, said at a hearing in the Washington State Senate in late January.

The controversy centers on so-called specialty drugs, a somewhat imprecise term that generally encompasses products that can cost tens or even hundreds of thousands of dollars a year.

Such drugs account for only 1 percent of total drug use, but 17 percent of drug spending by private insurers, according to IMS Health.

And costs are soaring as more such drugs come to market and as manufacturers raise prices. In 2010, spending on specialty drugs jumped 17.4 percent, compared with only 1.1 percent for other drugs, according to Medco Health Solutions, a pharmacy benefits manager that merged this month with Express Scripts.

Insurers typically encourage patients to use less expensive drugs by classifying products into tiers with successively higher co-payments, like $10, $30 and $50. Generic drugs are usually in the lowest tier, preferred brand-name drugs in the second tier and other brand-name drugs in the third.

But some insurers are now putting specialty drugs into a fourth tier of their own with extra high co-payments, or even co-insurance, in which the patient pays a percentage of the drug cost.

About 14 percent of workers with insurance are in plans that have four or more tiers, up from 7 percent in 2008, according to the Kaiser Family Foundation’s 2011 survey of benefits.

Patient advocates say that for some diseases, like multiple sclerosis, none of the drugs are inexpensive, making it impossible to avoid the high out-of-pocket costs unless people stop taking their medicine and endanger their health.

That discriminates against people with certain diseases, they say, and contravenes the whole idea of insurance, which is to help people pay for costly medical problems.

Mark Merritt, president of the Pharmaceutical Care Management Association, which represents pharmacy benefit managers, said the real problem was the price of the drugs. The legislation, he said, was an effort by the pharmaceutical industry to “turn a pricing problem into a coverage issue.”

Sharon Treat, executive director of the National Legislative Association on Prescription Drug Prices, an organization of state lawmakers, said that was a drawback of the bills. Insulating patients from the cost of their drugs, she said, “gives the drug companies a free ride to charge as much as they want.”

Still, Ms. Treat, a Democratic legislator in Maine, supported the bill in her state. And patient advocates say that while insurance is regulated, there is little they can do about drug prices.

Drug companies often help patients with their co-payments, but patient advocates say those programs do not solve the entire problem.

While pharmaceutical trade groups have expressed opposition to specialty tiers, Pfizer, which sells drugs for cancer, hemophilia and other diseases, has vigorously pushed the legislation, though it generally does not testify publicly.

“I was approached by a lobbyist from Pfizer with the original language,” said Stacey Allen Fitts, the state representative who introduced Maine’s bill. He said patient groups contacted him only afterward.

State Representative Cale P. Keable, a Rhode Island Democrat, and state Senator Joshua Green, a Democrat in Hawaii, said a Pfizer lobbyist provided or suggested language for the bills they introduced.

Bryon Wornson, vice president for public affairs in Pfizer’s specialty care business unit, said the company was working “in partnership with the patient groups,” adding, “I don’t think we are doing anything that is not fully transparent.”

The state bills — which would not apply to employers that insure themselves since their plans are not regulated by states — take various approaches.

New York’s law basically prohibits a fourth tier. At the time the legislation was enacted, no insurer in the state had a fourth tier, and it is not clear whether any would have started one had the law not been enacted.

Maine’s bill initially prohibited specialty tiers. The law as enacted allows them, but sets a limit of $3,500 a year for patient co-insurance payments for drugs,

Louisiana and Texas both enacted laws last year that do not limit out-of-pocket drug costs, but prohibit insurers from raising them in the middle of a contract year.

Some state bills, like one introduced recently in California, and one that died in Washington, take the same approach as the federal law, but would have it apply earlier. The federal law requires insurers, starting in 2014, to cap total yearly out-of-pocket costs, including for drugs, at about $6,000 for an individual and $12,000 for a family.

That is still a lot for many patients, though some say it would be better than nothing.

“At least I can go, ‘O.K., this is the maximum it’s going to cost my family,’ ” said Heidi Barrett of Mukilteo, Wash.

She and her four children have psoriatic arthritis and her husband has ulcerative colitis. Three family members combined use about $13,000 worth of the drug Remicade, which is used to treat both conditions, each month. Because of a change in her husband’s insurance, the family will have to pay 10 percent of the drug’s cost starting next year.

“I don’t know what we’re going to do,” she said.

    States Seek Curb on Patient Bills for Costly Drugs, NYT, 12.4.2012,






A Day in Court

and a New Lawyer for Defendant in Martin Case


April 12, 2012
The New York Times


SANFORD, Fla. — A tall, lanky red-headed lawyer named Mark O’Mara appeared in court here on Thursday, standing next to his newest client, George Zimmerman, one of the most recognizable defendants in the country but a man he had met for the first time only the night before at the county jail.

Mr. Zimmerman, 28, has become known to millions as the neighborhood watch organizer who shot and killed Trayvon Martin, an unarmed black teenager, six weeks ago, but who was initially not charged with any crime — unleashing a nationwide protest.

Mr. O’Mara, a New Yorker by birth and a criminal defense lawyer for nearly three decades, is perhaps best known in central Florida as a low-key legal analyst on television who frequently commented on the trial last year of Casey Anthony, who was accused — and acquitted — of killing her young daughter.

It was Mr. Zimmerman’s first moment in court, and he looked wide-eyed and grim in a one-piece blue-gray prison uniform, a couple of day’s growth on his face. Mr. O’Mara said that his client would plead not guilty and that he would try to get him out of jail within the next couple of weeks. Until then, Mr. Zimmerman, who was charged with second-degree murder on Wednesday, is being held in protective custody. A conviction could result in a prison term of 25 years to life.

After seeing his client on Thursday, Mr. O’Mara said in an interview that Mr. Zimmerman was distraught. “He is stressed and tired after long weeks of not being able to go out in public,” Mr. O’Mara, 56, said. “In the best of circumstances, he was dealing with the reality that he caused the death of somebody, and that weighs on you.”

Saying his client has no money, Mr. O’Mara said that he was not charging Mr. Zimmerman and that he hoped to secure a low bond.

Mr. Zimmerman and his family have maintained that he was trailing Mr. Martin because the young man appeared suspicious. Mr. Martin then disappeared from view, only to re-emerge, confront him and assault him, they say. In the fight, they contend, he shot Mr. Martin in self-defense. Florida’s expansive self-defense law, Stand Your Ground, was cited initially as a reason why no charges were brought.

In a four-page charging affidavit filed in court on Thursday, prosecutors added little to the known facts in the case. But the affidavit contradicted the Zimmerman family account in at least one crucial respect.

“Martin attempted to run home,” it said, “but was followed by Zimmerman who didn’t want the person he falsely assumed was going to commit a crime to get away before the police arrived.”

“Zimmerman confronted Martin and a struggle ensued,” it stated. It also asserted that Mr. Zimmerman “profiled” Mr. Martin.

Mr. O’Mara said self-defense cases were not new to him; he said that he had handled dozens, but that none had gone to trial as Stand Your Ground cases. He has also tried high-profile death-penalty cases.

He said that self-defense would probably be a “facet” of Mr. Zimmerman’s defense. Last month, Mr. O’Mara told a local television station that Mr. Martin’s shooting could be legally justified under the law, which allows people to use deadly force if they feel endangered. “Other people call it the license to murder statute because it doesn’t require actions to avoid the confrontation,” Mr. O’Mara said in the appearance.

He was critical of the law on Wednesday, however, saying it has “some troublesome portions to it.” But, he added, “right now it’s the law of Florida and that will have an impact on this case.”

Mr. O’Mara, who grew up in Rosedale, Queens, the son of a battalion chief in the New York City Fire Department, came to this case suddenly, after another well-known lawyer, Mark NeJame, referred him and four other lawyers. Mr. NeJame, who said Mr. Zimmerman had consented to his speaking, declined a March 13 request by Mr. Zimmerman to take his case because it would have required too much time away from his family.

On Tuesday, Mr. Zimmerman’s original two lawyers held a news conference to resign, saying that they could not get in touch with Mr. Zimmerman and that he was acting “erratic.” Mr. NeJame got a call a day later from a close family friend of the Zimmermans. He gave the friend a list of the five lawyers; they chose Mr. O’Mara.

“I thought Mark had strong attributes like being compassionate, extremely smart, media savvy and very professional,” Mr. NeJame said. “Mark has a measured approach and by bringing him in, it would help keep unbridled passions contained.”

The Martin family expressed relief on Thursday over the charges. Exhausted by the ordeal, Mr. Martin’s mother, Sybrina Fulton, said she had misspoken on a news program earlier in the day when she used the word “accident” to describe the shooting. It was not the shooting that was the accident, she said; it was the encounter between Mr. Martin and Mr. Zimmerman. “The accident came when Zimmerman exited his vehicle and they met,” she said.

Asked whether he would use her words in court, Mr. O’Mara displayed his flair for discretion. “They went through a horrible tragedy,” he said. “They lost their son. We’re not going to be talking about using words against the mother of a deceased child.”


Joseph Freeman contributed reporting from Sanford, Fla.,

and Kitty Bennett contributed research from St. Petersburg, Fla.

    A Day in Court and a New Lawyer for Defendant in Martin Case, NYT, 12.4.2012,






Suspect in Martin Case to Appear in Court


April 12, 2012
The New York Times


SANFORD, Fla. — George Zimmerman, a former neighborhood watch volunteer arrested on murder charges in the fatal shooting of Trayvon Martin, an unarmed 17-year-old, is scheduled to make his first court appearance Thursday afternoon.

Mr. Zimmerman, 28, was charged by a special prosecutor on Wednesday evening with second-degree murder. He is likely to appear with a new lawyer, Mark M. O’Mara, a well-known criminal lawyer, but it is not clear if a judge will set bail, or if Mr. Zimmerman will formally enter a plea.

Mr. O’Mara said in a brief interview on Wednesday night that when the time comes his client would plead not guilty.

Mr. O’Mara also said he hoped that the judge would take up a bond motion at Thursday’s hearing — which is expected to be brief — but that he expected that the issue of bail might have to wait for a more extensive hearing in the near future.

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 justice system.

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 family of Mr. Martin, who was killed in a gated community here six weeks ago.

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 guests.

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 against him.

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 said.

“O.K., we don’t need you to do that,” the dispatcher said. Mr. Zimmerman said: “O.K.”

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 challenged him.

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 the 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 the claim.

“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.

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.”



Serge F. Kovaleski reported from Sanford, Lizette Alvarez from Jacksonville,

and Michael Cooper from New York. Michael S. Schmidt contributed reporting

from Washington and Timothy Williams from New York.

Jack Styczynski contributed research.

    Suspect in Martin Case to Appear in Court, NYT, 12.4.2012,






Severe Charge, With a Minimum Term of 25 Years


April 11, 2012
The New York Times


By choosing 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 produced.

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,






Prosecutor Files Charge of 2nd-Degree Murder

in Shooting of Martin


April 11, 2012
The New York Times


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 justice system.

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 guests. .

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 against him.

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 said.

“O.K.., we don’t need you to do that,” the dispatcher said. Mr. Zimmerman said: “O.K.”

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 challenged him.

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 the claim.

“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.”


Lizette Alvarez reported from Jacksonville, and Michael Cooper from New York.

Serge F. Kovaleski contributed reporting from Sanford, Michael S. Schmidt

from Washington, and Timothy Williams from New York.

Jack Styczynski contributed research.

    Prosecutor Files Charge of 2nd-Degree Murder in Shooting of Martin, NYT, 11.4.2012, http://www.nytimes.com/2012/04/12/us/zimmerman-to-be-charged-in-trayvon-martin-shooting.html






In Martin Case, Tough Choice Looms for Prosecutor


April 10, 2012
The New York Times


Announcing 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 the site.

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 Hispanic.

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 risks.

“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 with nothing.”

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 manslaughter.

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 spokeswoman.

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 the case?”

He added, “I wouldn’t want to be in that county prosecutor’s shoes.”


Serge F. Kovaleski contributed reporting from Orlando, Fla.,

and Lizette Alvarez from Miami.

    In Martin Case, Tough Choice Looms for Prosecutor, NYT, 10.4.2012,






Trayvon Martin Death Won’t Go to Florida Grand Jury


April 9, 2012
The New York Times


ORLANDO, Fla. (AP) — Special prosecutor Angela Corey said Monday she will not take the Trayvon Martin shooting death before a grand jury.

Corey said she continues to investigate the case and will not involve a grand jury that had been set to meet Tuesday in Sanford, Fla.

Corey said her decision to skip the grand jury shouldn't be considered a factor in determining whether charges will be filed against George Zimmerman, the neighborhood watch volunteer who has admitted to fatally shooting the unarmed Martin.

The announcement means the decision on charges now rests solely with Corey, who had a reputation for not presenting cases before grand juries if it wasn't required. Under Florida law, only first-degree murder cases require the use of grand juries.

Corey took over the case last month after the prosecutor who normally handles cases out of Sanford recused himself. That prosecutor, Norm Wolfinger, had originally called for the case to be presented before a grand jury.

"From the moment she was assigned, Ms. Corey noted she may not need a grand jury," said a statement from Corey's office.

Martin was killed Feb. 26 during a confrontation with Zimmerman in a gated community in Sanford.

The case has led to protests across the nation and spurred a debate about race and the laws of self-defense. Martin was black; Zimmerman's father is white and his mother is Hispanic.

Zimmerman has claimed self-defense, and Florida's self-defense law gives wide leeway to use deadly force and eliminates a person's duty to retreat in the face of danger.

    Trayvon Martin Death Won’t Go to Florida Grand Jury, NYT, 9.4.2012,






From O.J. to Trayvon


April 6, 2012
The New York Times


The case of Trayvon Martin is producing another O.J. Simpson moment for America.

At least that’s the view of the people at Gallup who released a poll on Thursday detailing divergent racial views of the Martin case.

The USA Today/Gallup poll found that most blacks believe that George Zimmerman, the Hispanic man who shot and killed Trayvon Martin, a black teenager, in what he claims was an act of self-defense, is definitely guilty of a crime. It also found that nearly three-fourths of blacks believe that racial bias was a major factor in the shooting, and the events that led up to it, and that Zimmerman would have been arrested if he had shot a white person.

(Zimmerman was taken into police custody after the shooting but was released and hasn’t been charged.)

On all these measures, nonblacks were more reticent. Only 11 percent believed that Zimmerman was definitely guilty, while most said that the case was unclear or they had no opinion. Only about a third believed that racial bias was a factor or that Zimmerman would have been arrested if the person he shot was white.

Gallup draws a direct parallel between this racial divide and the one following the Simpson trial: “U.S. public opinion about the Trayvon Martin case in Florida reflects the same type of racial divide found in 1995 surveys asking about the murder trial of O.J. Simpson in Los Angeles. In one Gallup poll conducted Oct. 5-7, 1995, for example, 78 percent of blacks said the jury that found Simpson not guilty of murder made the right decision, while only 42 percent of whites agreed.”

The comparison is a bit loaded because the cases are miles apart in the details and circumstances. Simpson was accused of being a killer, whereas Martin was the one killed.

But there is an important, if strained, commonality between them: the issue of equal treatment by the justice system.

As a black man who thought O.J. Simpson was as guilty as the day is long, I found black people’s consistent and overwhelming belief in his innocence a low point. I eventually chalked it up to a perverse pursuit of equal justice by a people who saw the system as unfairly stacked against them. If the system was broken was it unbiased in its brokenness? Was part of equal justice equal injustice?

You can argue that intellectually, but the argument is morally bankrupt. There is no right in aligning yourself with wrong.

The Martin case, on the other hand, holds the potential to be a high point. There is nobility in the advocacy for truth and justice for a dead child who would still be alive if Zimmerman had not pursued him. While opinions shouldn’t get ahead of the facts — and we must all remember that what is right and what is legal don’t always dovetail — public pressure for a thorough investigation and fair dealings in this case needn’t and mustn’t be defined as a black issue. It’s a universally human issue.

Furthermore, Trayvon’s death and the public outcry about the case has shined a harsh light on the plight of young black men in America and the shadow of suspicion that hangs over them. It has also renewed the debate about racial-profiling — which is completely incongruous to any basic concept of fairness. Guilt isn’t genetic. Color and culture don’t dictate criminality. Innocence must be the default assumption. No one should be punished for another’s sins.

And, as the investigation progresses, it may well open the conversation even wider to consider unequal treatment of boys and men — by all authority figures in this country — and the heavy toll that that takes.

That unequal treatment starts early. A report last month in The New York Times found that “black students, especially boys, face much harsher discipline in public schools than other students, according to new data from the Department of Education.” And, according to the American Civil Liberties Union and Human Rights Watch, students of color are disproportionately subjected to corporal punishments like paddling.

Those inequities persist into adulthood and manifest in things like disproportionate rates of stop-and-frisks for blacks and Hispanics in places such as New York City and in harsher sentences for comparable crimes for blacks and Hispanics.

This lifetime of harsher treatment seems to stand in stark contrast to the authorities’ treatment of Zimmerman. This perception of unequal treatment eats away at the psyche of these men and boys of color and erodes their faith in a just and honest society. That is its own tragedy.

That makes this case simultaneously simple and complex. In the decision not to charge Zimmerman, was the boy with the candy accorded the same presumption of innocence as the man with the gun?

This isn’t 1995. This is the good fight. This is about restoration of faith. Until there is a trial for George Zimmerman, the whole justice system is on trial.

    From O.J. to Trayvon, NYT, 6.4.2012,






Seeking a Softer Justice System, Closer to Home,

for New York’s Juvenile Offenders


March 26, 2012
The New York Times


The teenage boys living in a Brooklyn row house board a van every morning to go to school. When they return, they cook their own meals, do their own laundry, play video games and discuss life. They receive visits from their families each week and sometimes take field trips to the movies or to a bowling alley.

While these boys are under close watch — the doors to the house are always locked — their accommodations are much more liberating than those of the hundreds of juveniles housed in facilities upstate for crimes ranging from petty theft to assault.

State lawmakers were hashing out the details on Monday of a proposal that they hoped would make more juvenile facilities resemble the one in Brooklyn and help put a softer face on juvenile justice in New York.

Under the proposal, which was a highlight of Gov. Andrew M. Cuomo’s budget, New York City would take custody of hundreds of low-level juvenile offenders in so-called youth prisons, which have been the subject of much scrutiny in recent years for their poor conditions.

Mayor Michael R. Bloomberg and youth advocates have lobbied for the change, saying that by housing young people closer to their homes and focusing on rehabilitation, the new model would reduce the chances of juveniles reoffending, make neighborhoods safer and save the state millions of dollars. It would also represent a drastic change to the juvenile justice system in New York, a state with a reputation for harsh treatment of juveniles.

“I really think it’s going to be a sea change for kids and families in New York,” said Jennifer March-Joly, executive director of the Citizens’ Committee for Children, an advocacy organization in the city. “It really sets us up to produce far better outcomes for kids and families. You don’t want one bad choice to derail a young person’s life.”

New York’s proposal, known as the Close to Home initiative, follows efforts by about a dozen other states and localities over the past two decades to reduce the number of juveniles they send to traditional youth prisons.

Although there is broad agreement that young offenders are better served in rehabilitative facilities closer to their home communities, some lawmakers and youth advocates worry about the logistics of the plan.

Assemblyman Jeffrion L. Aubry, a Democrat from Queens, said the city needed to provide more than just an assertion that it would be able to care for juvenile offenders better than the state can. “I’m not doubting that, but tell me how,” Mr. Aubry said. “I doubt your word if you don’t have a plan.”

Another concern, said Gabrielle Prisco, an expert on juvenile justice with the Correctional Association of New York, is that the state and the city already have contracts with nonprofit providers to house some juveniles in treatment programs, and children are not always successful in them. In 2010, more than 29 percent of juveniles whom the state placed in nonprofit treatment programs were moved to more secure forms of detention, according to a report by the Office of Children and Family Services, which runs the juvenile system.

Elizabeth Glazer, Mr. Cuomo’s deputy secretary for public safety, said the state had created a new, scientific method to evaluate the level of security and treatment that juveniles need, which she said would help in determining the best program for each person. Juveniles whom a judge deemed the most dangerous would not be eligible for the new program.

The bill also lists specifics that the state wants to see in the city’s plan before approving it, like measures to ensure “that youth receive appropriate services based on their needs, including, but not limited to, educational, behavioral, mental health and substance-abuse services.” The city estimated that about 400 youths currently in state custody would be eligible to be moved to treatment facilities.

Linda I. Gibbs, deputy mayor for health and human services, said Mr. Bloomberg was looking to use “this point of, really, a great tragedy in a young person’s life” as an opportunity “to help to give them structure and support and alternatives.”

“His direction has been, yes, public safety,” Ms. Gibbs said. “But within that is really an incredible sense of compassion for intervening, helping to correct some of those tremendous social challenges that these young people live with.”

The home in Brooklyn, run by the nonprofit provider Boys Town New York, is one of 13 homes that have contracts with the city’s Administration for Children’s Services to house juvenile suspects while their Family Court cases are pending. The average stay at Boys Town is about 30 days, but under the Close to Home proposal, agencies would most likely have to provide longer-term care because they would house sentenced youths.

Youths are sent to Boys Town for various offenses, including weapons possession, trespassing and sexual assault. Their assessments say they struggle with problems like smoking, drinking and thoughts of running away.

The home sits on a quiet street off a busy Brooklyn thoroughfare, across from a large field where, on a recent afternoon, children ambled around.

Inside, through two locked doors, a dimly lit room had the feel of a doctor’s waiting area, with orchids and a tray of peppermints on a wooden coffee table. Upstairs, the boys looked visitors in the eye and greeted them with firm handshakes. Their bedrooms were free of clutter, with bedsheets that were slightly wrinkled but neatly tucked in. The walls were decorated with pictures of Martin Luther King Jr. and President Obama.

Boys Town tailors a treatment plan for each child who comes to the home, which accommodates up to 13.

“We try to keep a clean environment, so the kids do feel like, ‘Even though I’m not home, it feels like home,’ ” said Warner Graham, the program director. “It’s very important to have a family-style environment if you want to build relationships, which is going to, in turn, help the kids to do much better.”

One boy, 16, from Brooklyn, who asked to be identified only by his initials, S.B., was on his second tour at Boys Town. He first came at age 13 and returned about a month ago after being arrested for weapons possession.

The boy, who wants to be a professional basketball player and has been named house manager, said he felt as though a message from the staff — that his behavior was hurting both him and his mother — finally had him on the right path.

“That got to me,” he said.

    Seeking a Softer Justice System, Closer to Home, for New York’s Juvenile Offenders, NYT, 26.3.2012,






Make the Punishment Fit the Cyber-Crime


March 19, 2012
The New York Times


New Haven

LAST week, a New Jersey jury convicted Dharun Ravi of invasion of privacy, and for good reason. Mr. Ravi activated the webcam in his room at Rutgers so he could watch his roommate, Tyler Clementi, meet up with a male date. Worse, he broadcast his plans to do it again over Twitter, inviting his friends to watch. That kind of spying should be out of bounds on a college campus.

What’s out of whack about Mr. Ravi’s case is the harsh punishment he now faces: as much as 10 years in prison, for a 20-year-old who’d never been in legal trouble before.

Mr. Ravi could go away for years because, on top of spying, he was convicted of a hate crime: bias intimidation, a conviction probably influenced by Mr. Clementi’s subsequent suicide. According to New Jersey’s civil rights law, you are subject to a much higher penalty if the jury finds that you committed one of a broad range of underlying offenses for the purpose of targeting someone because of his race, ethnicity, religion, disability, gender or sexual orientation.

The idea of shielding vulnerable groups is well intentioned. But with the nation on high alert over bullying — especially when it intersects with computer technology and the Internet — these civil rights statutes are being stretched to go after teenagers who acted meanly, but not violently. This isn’t what civil rights laws should be for.

New Jersey passed one of the country’s first hate crimes statutes in 1981, outlawing the burning of crosses or placing of swastikas to terrorize and threaten violence. In 1990, the legislature added extra prison time for racial, ethnic or religious prejudice. “From now on hate crimes will be serious crimes,” Governor Jim Florio said upon signing the bill, citing “a phone call in the middle of the night or vandalism that leaves hateful symbols in its wake or racial slurs.”

In New Jersey, cases with bias intimidation charges have typically included an underlying offense of significant violence. People have been found guilty under the civil rights law for throwing punches while yelling a racial epithet, for beating a man with a metal rod while cursing him for being from India, and for threatening to shoot a driver, employing a racial slur and then tailgating him for miles. These are cases in which prejudice twists into ugly and serious harm.

Teenagers have also previously been charged with bias intimidation. One boy was convicted for being the ringleader of a bunch of children who ganged up on a girl, calling her a lesbian. Another teenager got in trouble for shoving a boy, using a racial slur and threatening to hang him from a tree. But as juveniles, the kids in these cases were spared harsh punishment. The boy who did the shoving was ordered to spend 10 days in juvenile detention and read the book “Black Like Me.”

Mr. Ravi was 18 years old when he spied on Mr. Clementi, legally an adult, but he did things that reek of immature homophobia. He told a friend he wanted to “keep the gays away,” and when he set up his webcam a second time, his tweets and texts showed that he was giddily trading on Mr. Clementi’s homosexuality to get attention.

Was Mr. Clementi intimidated by Mr. Ravi’s spying? The record is mixed, but inflected by Mr. Clementi’s suicide a day after the second spying incident. Though it’s not clear how much Mr. Ravi’s actions influenced his roommate’s decision to take his own life, the proximity in time is chilling.

Given how broadly the civil rights laws are written, it’s not surprising that prosecutors turned to them to ramp up the charges against Mr. Ravi, especially because this normally increases the pressure on a defendant to plead guilty. The state then made Mr. Ravi a fair offer: community service in exchange for admitting to invading Mr. Clementi’s privacy. It was Mr. Ravi’s mistake not to take it.

And yet, if Mr. Ravi spends years in prison, his case will set an alarming precedent of disproportional punishment. The spying he did was criminal, but it was also, as his lawyer put it, “stupid kid” behavior.

Mr. Ravi isn’t the only person caught in this legal snare. After bullying was blamed for the suicide two years ago of Phoebe Prince, a 15-year-old in South Hadley, Mass., prosecutors criminally charged six teenagers. That time, the district attorney used the state’s civil rights laws to directly blame five of them for Phoebe’s death. Like Mr. Ravi, they faced a sentence of up to 10 years. Never mind that the Massachusetts law had previously been used against violent racist thugs. Because it was broadly written, like New Jersey’s, prosecutors could seize upon the law because it “sent a message” about bullying, as one of them later said.

The Massachusetts cases ended with a whimper: After the district attorney who brought the civil rights charges left office, her successor dropped the charges against one teenager and wisely resolved the cases against the other five, who admitted some wrongdoing, with probation and community service.

Mr. Ravi, of course, will not be so lucky. States like New Jersey and Massachusetts should narrow their civil rights laws so that he’s not the first of many stupid but nonviolent young people who pay a too-heavy price for our fears about how kids use technology to be cruel.


Emily Bazelon, a senior editor at Slate,

is writing a book about bullying called “Sticks and Stones.”

    Make the Punishment Fit the Cyber-Crime, NYT, 19.3.2012,






Strange Justice


March 16, 2012
The New York Times


The Story of Lawrence v. Texas:
How a Bedroom Arrest Decriminalized Gay Americans
By Dale Carpenter
Illustrated. 345 pp. W. W. Norton & Company. $29.95.


Texas justice has rarely been kind to homosexuals. Take, for example, the case of Calvin Burdine, who was sentenced to death in 1984 for the murder of his male companion. Burdine’s court-­appointed lawyer, when not dozing, referred to his client as a “fairy.” The prosecutor, meanwhile, demanded the death penalty by arguing that gays actually look forward to the rewards of prison life. “Sending a homosexual to the penitentiary,” he claimed, “certainly isn’t a very bad punishment for a homosexual.” Astonishingly, a federal appeals panel first upheld the verdict on the grounds that nothing in the law guarantees a defendant the right to a fully conscious attorney. Burdine eventually won a new trial, at which he was again convicted, but this time sentenced to life in prison — a veritable candy store, it was said, for a “pervert” like him.

Texas, like most states, has a long history of criminalizing sodomy. What makes it special, however, is its obsession with the issue, which led Lone Star lawmakers to repeatedly refine their statutes over time. In 1943, Texas added oral sex to a long list of prohibited offenses. Thirty years later, it passed a law containing the “Homosexual Conduct” provision, which banned both oral and anal sex, but only when performed “with another individual of the same sex.” As such, the new law expanded the sexual freedom of heterosexuals while doing just the opposite for homosexuals. Put bluntly, it was now legal in Texas to have sex with a farm animal, but not with someone of the same gender.

The law was enforced in public spaces, like a park or a tavern, but rarely in private settings like a home. It was in most ways symbolic — a means to stigmatize gay men and women and keep them in the shadows. But it did earn a notorious, if indirect, endorsement in 1986, when a bitterly divided United States Supreme Court upheld a Georgia sodomy law in some ways similar to the one in Texas. The court had previously approved of “privacy” rights for both married and unmarried heterosexuals and for pregnant women. But in the case of Bowers v. Hardwick, involving a police officer who had encountered a gay couple having sex in a private dwelling, it refused to go further. “The issue presented is whether the federal Constitution confers a fundamental right upon homo­sexuals to engage in sodomy,” Justice Byron White wrote for the majority. The answer was no.

The Supreme Court is not above correcting its worst mistakes. It took half a century to reverse itself on the evils of racial segregation, for example, but only three years to overturn its egregious 1940 ruling against those who refused, on religious grounds, to salute the American flag. Normally, the court follows the principle of stare decisis — “to stand by what is decided.” It is not inclined to challenge its own precedents unless there is a compelling reason to do so. Reversing Bowers was certainly possible; the vote had been 5 to 4, after all, and issues regarding same-sex couples were now receiving sympathetic media attention. But a second defeat was also possible, with unknown conse­quences for gay rights.

Dale Carpenter’s “Flagrant Conduct” is a stirring and richly detailed account of Lawrence v. Texas, the momentous 2003 decision that overturned Bowers. Carpenter, who teaches at the University of Minnesota Law School, tells the story through the eyes of the major players — the plaintiffs, arresting officers, attorneys, judges and prosecutors — most of whom were interviewed at length. The result is a book that turns conventional wisdom about Lawrence on its head. Indeed, the readers most likely to be surprised by “Flagrant Conduct” are those who think they already know the basic outlines of the case.

In the standard account, in 1998 four sheriff’s deputies from Harris County (Houston), responding to a false report of someone waving a gun, entered an apartment and, after loudly identifying themselves, found two men — Tyron Garner and John Lawrence — enthusiastically violating the Texas sodomy law. Both men had been drinking, and Lawrence was particularly aggressive, the deputies reported. Joseph Quinn, the lead officer, had several options. He could warn the two and let them go; he could charge them and issue citations; or he could arrest them and haul them off to jail. Quinn chose Option 3, setting Lawrence v. Texas in motion.

But Carpenter’s interviews tell a rather different story. Both Garner and Lawrence were shocked to learn of the charge against them: homosexual conduct. “I thought, ‘My God, we didn’t have sex,’ ” Lawrence recalled. Of the four officers in the apartment, two failed to note any sexual encounter, while the other two gave conflicting accounts — one vaguely recalling oral sex, and Quinn alone claiming to have seen anal sex. What is clear, from numerous interviews, is that Quinn had a well-earned reputation for turning minor disturbances into major confrontations, and that he was furious at Lawrence’s belligerence. “I’ll be honest with you,” one of the deputies says, “90 percent of the time people talk themselves into jail . . . just by running their mouth.” Back talk from homo­sexuals was galling enough; the fact that Lawrence was white and Garner black may have made things worse.

According to Carpenter, almost no one familiar with the incident believed the police report. The judge handling the case suspected that Quinn had either made up or embellished the sex charge, and the county’s top prosecutor seemed personally reluctant to pursue it. “I’m not sure I agree with government regulating private sex acts between consenting adults,” he told the press, “but it’s not my call.” What kept the case alive, Carpenter shrewdly explains, was relentless pressure from opposite sides of the political spectrum: Republicans seeking a “family values” issue, on one end; gay rights activists handed a good “test case,” on the other.

To some, Garner and Lawrence seemed a risky choice for this role. Both men had criminal records, and their “relationship” added a racial element to the mix. As Carpenter shows, however, these weaknesses were actually strengths. The pair’s transient roots meant they had “little to lose” in being outed as homosexuals in deeply conservative Houston, or in accepting a police report they knew to be false. When their time came to plead, the men followed their lawyers’ instructions and replied, “No contest.” These were “the last words Garner and Lawrence ever said in court about their case.”

In 1986, the team opposing the Georgia sodomy law had included a number of heterosexual attorneys in key positions. This time, the effort was controlled by Lambda Legal, a gay advocacy group. In 1986, Laurence Tribe, the distinguished Harvard Law School professor, had argued the case before the Supreme Court. This time, though Tribe lobbied hard for another go, the job fell to Paul Smith, a Yale Law School graduate who had clerked for Justice Lewis Powell before working as a litigator in Washington and only then coming out as gay. There was a poignant irony to Smith’s selection. Powell, a “genteel Southerner,” had provided the fifth and deciding vote in upholding Georgia’s sodomy law. Smith still wondered whether confiding in the justice might have made a difference, especially since Powell later admitted he had made a mistake in Bowers and should have voted the other way.

For Smith and Lambda Legal, the case against sodomy laws hung on the “twin pillars” of “equal protection and the due process right to privacy.” But Smith went further in his argument to the court. As Carpenter notes, he “articulated the substantive idea that sexual intimacy among gay Americans was a good thing, not merely a tolerable thing.” Gay partnerships strengthened the fabric of society, a perception Americans increasingly grasped and accepted. In recognizing this, Smith declared, the court would not be leading a reluctant nation to a moral precipice, but rather catching up with realities of modern life.

Peppered with questions, Smith handled himself well. The tensest moments came when Justice Antonin Scalia, a supporter of sodomy laws, mocked Smith’s view of constitutional protection. “I mean, suppose all the states had laws against flagpole sitting . . . and then almost all of them repealed those laws,” Scalia said. “Does that make flagpole sitting a fundamental right?” Flagpole sitting? In a case involving anal sex? The audience was stunned.

Arguing for Texas was Chuck Rosenthal, the flamboyant, if woefully unprepared, Harris County district attorney. His brief was simple: the Supreme Court had rightly decided this issue in Bowers, and there was no reason to reverse. Sodomy laws reflected the people’s wisdom channeled through their elected representatives. When such laws become archaic, they should be discarded by the legislatures, not tossed out by the courts — in short, judicial restraint.

It is impossible in this limited space to convey the sheer ineptitude of Rosenthal’s presentation. At one point, Justice Scalia had to warn the hapless district attorney that he was about to answer a trick question. “Don’t fall into that trap,” he scolded. Within minutes, the justices were ignoring Rosenthal’s inane responses and arguing the merits themselves, leading Chief Justice William Rehnquist to suggest that “maybe we should go through counsel.” The highlight came when a frustrated Justice Stephen Breyer innocently requested a “straight answer” from Rosenthal, sending waves of laughter through the room.

The decision, announced on June 26, 2003, was sweeping in tone. “We conclude . . . Bowers was not correct when it was decided and it is not correct today,” Justice Anthony Kennedy wrote. “Its continuance as precedent demeans the lives of homosexual persons.” Scalia, Rehnquist and Clarence Thomas dissented. The court, Scalia said, had “largely signed on to the so-called homosexual agenda.”

Much has happened since that fateful day. Both Garner and Lawrence have died, and Rosenthal, the “family values” district attorney, resigned in disgrace after the disclosure of an adulterous affair with his secretary. The years have seen the rapid expansion of gay rights, with a state-by-state push for same-sex marriage heading the list. And much of this progress can be traced to Lawrence v. Texas, with its message of tolerance and inclusion in American life. Never again, Carpenter writes, would gay men and women be left to worry “whether the words engraved on the pediment of the Supreme Court building, ‘Equal Justice Under Law,’ included them. The Constitution was now their constitution, too.”

    Strange Justice, NYT, 16.3.2012,






No Way to Choose a Judge


March 15, 2012
The New York Times


In a serious setback for justice in Alabama, primary voters chose Roy Moore to be their candidate for chief justice of the State Supreme Court in November. He is now the odds-on favorite to win. You may remember that Mr. Moore lost that job in 2003 when a special ethics court removed him from the bench after he defied a court order to remove a Ten Commandments monument from the lobby of the state judicial building in Montgomery.

Mr. Moore plainly benefited from his name recognition — as disturbing as that thought is — and strong support from many of the same evangelical voters who backed Rick Santorum in the presidential primary. His victory is yet one more reminder that choosing judges in partisan elections, rather than through a system of merit selection, can create a serious problem of quality control.

In all, 31 states are holding elections for their top court this year — multicandidate races and “retention” votes for a total of 73 judgeships nationwide. Requiring would-be judges to cozy up to party leaders and raise large sums from special interests eager to influence their decisions seriously damages the efficacy and credibility of the judiciary. It discourages many highly qualified lawyers from aspiring to the bench. Bitter campaigns — replete with nasty attack ads — make it much harder for judges to work together on the bench and much harder for citizens to trust the impartiality of the system.

The taint from all the special interest money has been especially strong in Alabama. The judicial candidates in Tuesday’s decisive primary contests raised roughly $2 million. In 2006, candidates for five Supreme Court seats spent a total of $13.4 million in both the primary and general election. While the numbers will certainly end up lower this year, it may be because all but one current member of the State Supreme Court was elected with strong business backing and the plaintiff’s bar and other opposing interests with their own deep pockets decided it was not worth competing.

Alabama isn’t the only state to draw the wrong sort of candidates and indulge in the wrong sort of campaigning. In Pennsylvania, Jane Orie, a Republican member of the State Senate, is now standing trial on charges she used her government staff to help her sister Joan Orie Melvin in her successful run for the State Supreme Court in 2009.

Janine Orie, another sister, who worked for the judge, also faces charges for the misuse of government resources. And The Pittsburgh Tribune-Review reported that a grand jury is looking into Justice Melvin’s possible involvement.

These seamy doings have helped spark a promising effort by Pennsylvanians for Modern Courts, a nonprofit advocacy group, to persuade the State Legislature to approve a constitutional amendment that would scrap competitive partisan judicial elections. Instead the state would adopt a new system of initial merit appointment and nonpartisan retention elections.

While it would not be a perfect fix — retention votes still require fund-raising and politicking — it would be a start toward ridding the state’s courtrooms of politics and campaign cash. Fortunately, a proposal to repeal Florida’s merit appointment system isn’t going anywhere, at least for now. The country certainly does not need any more bad examples of justice for sale.

    No Way to Choose a Judge, NYT, 15.3.2012,






Juveniles Don’t Deserve Life Sentences


March 14, 2012
The New York Times



IN the late 1980s, a small but influential group of criminologists predicted a coming wave of violent juvenile crime: “superpredators,” as young as 11, committing crimes in “wolf packs.” Politicians soon responded to those fears, and to concerns about the perceived inadequacies of state juvenile justice systems, by lowering the age at which children could be transferred to adult courts. The concern was that offenders prosecuted as juveniles would have to be released at age 18 or 21.

At the same time, “tough on crime” rhetoric led some states to enact laws making it easier to impose life without parole sentences on adults. The unintended consequence of these laws was that children as young as 13 and 14 who were charged as adults became subject to life without parole sentences.

Nationwide, 79 young adolescents have been sentenced to die in prison — a sentence not imposed on children anywhere else in the world. These children were told that they could never change and that no one cared what became of them. They were denied access to education and rehabilitation programs and left without help or hope.

But the prediction of a generation of superpredators never came to pass. Beginning in the mid-1990s, violent juvenile crime declined, and it has continued to decline through the present day. The laws that were passed to deal with them, however, continue to exist. This month, the United States Supreme Court will hear oral arguments in two cases, Jackson v. Hobbs and Miller v. Alabama, which will decide whether children can be sentenced to life without parole after being convicted of homicide.

The court has already struck down the death penalty for juveniles and life without parole for young offenders convicted in nonhomicide cases. The rationale for these earlier decisions is simple and equally applicable to the cases to be heard: Young people are biologically different from adults. Brain imaging studies reveal that the regions of the adolescent brain responsible for controlling thoughts, actions and emotions are not fully developed. They cannot be held to the same standards when they commit terrible wrongs.

Homicide is the worst crime, but in striking down the juvenile death penalty in 2005, the Supreme Court recognized that even in the most serious murder cases, “juvenile offenders cannot with reliability be classified among the worst offenders”: they are less mature, more vulnerable to peer pressure, cannot escape from dangerous environments, and their characters are still in formation. And because they remain unformed, it is impossible to assume that they will always present an unacceptable risk to public safety.

The most disturbing part of the superpredator myth is that it presupposed that certain children were hopelessly defective, perhaps genetically so. Today, few believe that criminal genes are inherited, except in the sense that parental abuse and negative home lives can leave children with little hope and limited choices.

As a former juvenile court judge, I have seen firsthand the enormous capacity of children to change and turn themselves around. The same malleability that makes them vulnerable to peer pressure also makes them promising candidates for rehabilitation.

An overwhelming majority of young offenders grow out of crime. But it is impossible at the time of sentencing for mental health professionals to predict which youngsters will fall within that majority and grow up to be productive, law-abiding citizens and which will fall into the small minority that continue to commit crimes. For this reason, the court has previously recognized that children should not be condemned to die in prison without being given a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”

The criminologists who promoted the superpredator theory have acknowledged that their prediction never came to pass, repudiated the theory and expressed regret. They have joined several dozen other criminologists in an amicus brief to the court asking it to strike down life without parole sentences for children convicted of murder. I urge the justices to apply the logic and the wisdom of their earlier decisions and affirm that the best time to decide whether someone should spend his entire life in prison is when he has grown to be an adult, not when he is still a child.


Gail Garinger, a juvenile court judge in Massachusetts from 1995 to 2008,

is the state’s child advocate, appointed by the governor.

    Juveniles Don’t Deserve Life Sentences, NYT, 14.3.2012,






Go to Trial: Crash the Justice System


March 10, 2012
The New York Times


Columbus, Ohio

AFTER years as a civil rights lawyer, I rarely find myself speechless. But some questions a woman I know posed during a phone conversation one recent evening gave me pause: “What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn’t we bring the whole system to a halt just like that?”

The woman was Susan Burton, who knows a lot about being processed through the criminal justice system.

Her odyssey began when a Los Angeles police cruiser ran over and killed her 5-year-old son. Consumed with grief and without access to therapy or antidepressant medications, Susan became addicted to crack cocaine. She lived in an impoverished black community under siege in the “war on drugs,” and it was but a matter of time before she was arrested and offered the first of many plea deals that left her behind bars for a series of drug-related offenses. Every time she was released, she found herself trapped in an underclass, subject to legal discrimination in employment and housing.

Fifteen years after her first arrest, Susan was finally admitted to a private drug treatment facility and given a job. After she was clean she dedicated her life to making sure no other woman would suffer what she had been through. Susan now runs five safe homes for formerly incarcerated women in Los Angeles. Her organization, A New Way of Life, supplies a lifeline for women released from prison. But it does much more: it is also helping to start a movement. With groups like All of Us or None, it is organizing formerly incarcerated people and encouraging them to demand restoration of their basic civil and human rights.

I was stunned by Susan’s question about plea bargains because she — of all people — knows the risks involved in forcing prosecutors to make cases against people who have been charged with crimes. Could she be serious about organizing people, on a large scale, to refuse to plea-bargain when charged with a crime?

“Yes, I’m serious,” she flatly replied.

I launched, predictably, into a lecture about what prosecutors would do to people if they actually tried to stand up for their rights. The Bill of Rights guarantees the accused basic safeguards, including the right to be informed of charges against them, to an impartial, fair and speedy jury trial, to cross-examine witnesses and to the assistance of counsel.

But in this era of mass incarceration — when our nation’s prison population has quintupled in a few decades partly as a result of the war on drugs and the “get tough” movement — these rights are, for the overwhelming majority of people hauled into courtrooms across America, theoretical. More than 90 percent of criminal cases are never tried before a jury. Most people charged with crimes forfeit their constitutional rights and plead guilty.

“The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used,” said Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute. In other words: the system is rigged.

In the race to incarcerate, politicians champion stiff sentences for nearly all crimes, including harsh mandatory minimum sentences and three-strikes laws; the result is a dramatic power shift, from judges to prosecutors.

The Supreme Court ruled in 1978 that threatening someone with life imprisonment for a minor crime in an effort to induce him to forfeit a jury trial did not violate his Sixth Amendment right to trial. Thirteen years later, in Harmelin v. Michigan, the court ruled that life imprisonment for a first-time drug offense did not violate the Eighth Amendment’s ban on cruel and unusual punishment.

No wonder, then, that most people waive their rights. Take the case of Erma Faye Stewart, a single African-American mother of two who was arrested at age 30 in a drug sweep in Hearne, Tex., in 2000. In jail, with no one to care for her two young children, she began to panic. Though she maintained her innocence, her court-appointed lawyer told her to plead guilty, since the prosecutor offered probation. Ms. Stewart spent a month in jail, and then relented to a plea. She was sentenced to 10 years’ probation and ordered to pay a $1,000 fine. Then her real punishment began: upon her release, Ms. Stewart was saddled with a felony record; she was destitute, barred from food stamps and evicted from public housing. Once they were homeless, Ms. Stewart’s children were taken away and placed in foster care. In the end, she lost everything even though she took the deal.

On the phone, Susan said she knew exactly what was involved in asking people who have been charged with crimes to reject plea bargains, and press for trial. “Believe me, I know. I’m asking what we can do. Can we crash the system just by exercising our rights?”

The answer is yes. The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised his constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation. Not everyone would have to join for the revolt to have an impact; as the legal scholar Angela J. Davis noted, “if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos.”

Such chaos would force mass incarceration to the top of the agenda for politicians and policy makers, leaving them only two viable options: sharply scale back the number of criminal cases filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial “emergency” fiat). Either action would create a crisis and the system would crash — it could no longer function as it had before. Mass protest would force a public conversation that, to date, we have been content to avoid.

In telling Susan that she was right, I found myself uneasy. “As a mother myself, I don’t think there’s anything I wouldn’t plead guilty to if a prosecutor told me that accepting a plea was the only way to get home to my children,” I said. “I truly can’t imagine risking life imprisonment, so how can I urge others to take that risk — even if it would send shock waves through a fundamentally immoral and unjust system?”

Susan, silent for a while, replied: “I’m not saying we should do it. I’m saying we ought to know that it’s an option. People should understand that simply exercising their rights would shake the foundations of our justice system which works only so long as we accept its terms. As you know, another brutal system of racial and social control once prevailed in this country, and it never would have ended if some people weren’t willing to risk their lives. It would be nice if reasoned argument would do, but as we’ve seen that’s just not the case. So maybe, just maybe, if we truly want to end this system, some of us will have to risk our lives.”


Michelle Alexander is the author of

“The New Jim Crow: Mass Incarceration in the Age of Colorblindness.”

    Go to Trial: Crash the Justice System, NYT, 10.3.2012,






Maxwell S. Keith Dies at 87;

Replacement Lawyer in Manson Case


March 10, 2012
The New York Times


Maxwell S. Keith, who defended two members of the so-called Manson family in their notorious cult murder trials, stepping in after the lawyer for one of them disappeared under mysterious circumstances, died on Tuesday in Templeton, Calif. He was 87.

His daughter Hilary Keith confirmed the death.

In December 1970, a Superior Court judge in Los Angeles appointed Mr. Keith to represent Leslie Van Houten, one of three young women on trial with Charles Manson for the gruesome killings of seven people over two August nights in 1969.

The first night’s victims were the actress Sharon Tate, who was married to the director Roman Polanski and was eight and a half months pregnant; Abigail Folger, an heiress to the Folger coffee fortune; Jay Sebring, a celebrity hairstylist; Voytek Frykowski; and Steven Parent. They were killed by intruders at Ms. Tate’s home near Beverly Hills.

The next night, a supermarket executive and his wife, Leno and Rosemary LaBianca, were murdered in their Los Angeles home after returning from a vacation.

The trial had begun almost six months before Mr. Keith was appointed to the case. Ms. Van Houten, who was accused in only the LaBianca murders, had been represented by Ronald Hughes, but during a recess as the trial approached its conclusion, Mr. Hughes vanished after a hard rainstorm while he was on a camping trip. (His body was found several months later, and though no charges have ever been brought, it has long been speculated that members of the Manson cult killed him.)

Mr. Keith was given a short time to absorb about 18,000 pages of court documents, and though he said he was familiar enough with the evidence to proceed when the trial resumed just before Christmas, he asked the court to declare a mistrial on the basis of his not having been present to hear witnesses testify. The judge, Charles H. Older, denied the request, and Mr. Keith went on to present a defense that separated Ms. Van Houten’s interests from Mr. Manson’s.

Mr. Keith contended that Ms. Van Houten and the other young women, Susan Atkins and Pamela Krenwinkel (along with another member of the cult, Charles Watson, who would be tried later), had been brainwashed by Mr. Manson and were incapable of thinking or acting on their own. In his closing argument, he latched on to how the prosecutor, Vincent Bugliosi, had referred to them as robots.

“If you believe the prosecution theory that these female defendants and Mr. Watson were extensions of Mr. Manson — his additional arms and legs, as it were — if you believe that they were mindless robots, they cannot be guilty of premeditated murder,” Mr. Keith said.

In his book about the case, “Helter Skelter,” Mr. Bugliosi said Mr. Keith had “delivered the best of the four defense arguments,” though it was to no avail. The three women and Mr. Manson were convicted of murder, and in a subsequent trial Mr. Watson, defended by Mr. Keith, was found guilty in all seven murders. All were given the death penalty, but when California temporarily abolished capital punishment in 1972, their sentences were reduced to life in prison.

Maxwell Stanley Keith was born in Pasadena, Calif., on July 16, 1924. World War II interrupted his education at Princeton, and he served in the Pacific as a bombardier in the Army Air Forces. He graduated from Princeton after the war and from Loyola Law School in Los Angeles.

Before becoming a defense lawyer in private practice, he worked in the district attorney’s office in Los Angeles. In 1960, he and a partner defended Dr. R. Bernard Finch, a wealthy physician from West Covina, Calif., who, in a scandalous case that seized national headlines, was convicted of killing his wife.

In addition to his daughter Hilary, Mr. Keith is survived by his wife, the former Alison Cronkhite, whom he married in 1953; three other daughters, Elizabeth Keith, Alison Stirling and Adelaide Muro; two sons, Gordon and Alexander; eight grandchildren; and a great-granddaughter.

In 1976, Ms. Van Houten’s conviction was overturned when an appeals court ruled that Judge Older should have ordered a retrial when Mr. Hughes disappeared. Her second trial ended without a verdict, but in 1978 she was convicted again. Mr. Keith represented her throughout. Both she and Mr. Watson remain in prison.

    Maxwell S. Keith Dies at 87; Replacement Lawyer in Manson Case, NYT, 10.3.2012,






When Innocence Isn’t Enough


March 2, 2012
The New York Times


EDWARD LEE ELMORE turned 53 in January. For more than half his life, the soft-spoken African-American who doesn’t understand the concept of north, south, east and west, or of summer, fall, winter and spring, was in a South Carolina prison, most of it on death row.

On Friday, Mr. Elmore walked out of the courthouse in Greenwood, S.C., a free man, as part of an agreement with the state whereby he denied any involvement in the crime but pleaded guilty in exchange for his freedom. This was his 11,000th day in jail.

Mr. Elmore was convicted in 1982 for the sexual assault and murder of an elderly white widow in Greenwood. His trial lasted only eight days, including two spent picking the jury. The state concealed evidence that strongly pointed to Mr. Elmore’s innocence and introduced damning evidence that appears to have been planted by the police. For three decades lawyers for Mr. Elmore, who were convinced of his innocence, sought to get him a fair trial.

Headlines and news stories about men being released from death row based on DNA testing suggest that this happens often. But it doesn’t. Once a person has been convicted, even on unimaginably shaky grounds, an almost inexorable process — one that usually ends in execution — is set in motion. On appeal, gone is the presumption of innocence; the presumption is that the defendant had a fair trial. Not even overwhelming evidence that the defendant is innocent is necessarily enough to get a new trial. “Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person,” Justice Byron R. White wrote for the majority in a 1977 case, Patterson v. New York.

In other words, innocence is not enough.

I came to the Elmore case indirectly during the 2000 presidential campaign. On “Meet the Press,” George W. Bush, who as governor of Texas had presided over more executions than anyone in history at the time (Rick Perry has surpassed him), told Tim Russert that he was confident that every person who had been executed or placed on death row in Texas under his watch was guilty and had had a fair trial. This led to a reporting assignment in which a New York Times colleague, Sara Rimer, and I wrote about capital punishment, starting in Texas and then ranging from coast to coast.

It was an eye-opening experience. But no case grabbed me like Mr. Elmore’s. The case stands out because it raises nearly all the issues that shape debate about capital punishment: race, mental retardation, a jailhouse informant, DNA testing, bad defense lawyers, prosecutorial misconduct and a strong claim of innocence.

Few men on death row are without any connection to the crime for which they are condemned to die. Their conviction might be reversed after an appellate court finds they were denied due process or didn’t receive a fair trial. Other death row inmates may not be guilty of murder, because they didn’t pull the trigger though they were present during the crime. But in the case of Mr. Elmore, I am convinced beyond a scintilla of a doubt that he had nothing to do with the Greenwood woman’s death. His conviction resulted primarily from a rush to judgment — and flagrant prosecutorial misconduct.

Mr. Elmore, who grew up in abject poverty as the 8th of 11 children born to a tenant farmer’s daughter, was arrested 36 hours after the body of 76-year-old Dorothy Ely Edwards was found in her bedroom closet. Mr. Elmore had occasionally washed windows and cleaned gutters at the woman’s house, the last time two weeks before the murder. Less than 90 days later, his trial began.

During his opening statement, the prosecutor, William Townes Jones III, a courtroom legend, said that 53 hairs had been gathered from the victim’s bed, where the sexual assault supposedly took place, and that most were the defendant’s pubic hairs. It was the only physical evidence that put Mr. Elmore inside the house at the time of the crime. “That’s what convicted him,” said a juror.

But contradictions appeared at the outset. When Mr. Jones called an agent from the South Carolina Law Enforcement Division, or SLED, as a witness, he handed him a plastic bag marked State Exhibit 58 and asked him if it contained “53 hairs gathered from the bed of the deceased.”

“The total count on the hairs is 49,” answered the agent, Earl Wells, and he added that there were only 42 in the bag, because he had taken seven out for examination.

Mr. Elmore’s lawyers made nothing of this discrepancy during their cross-examination of Mr. Wells, or in their closing argument.

The state’s own inability to agree on how many hairs were found wasn’t the only suggestion of foul play. State Exhibit 58, the baggie with the hairs, wasn’t sealed. Which means that the hairs could have been put in by anyone at any time, and could have included those yanked from Mr. Elmore’s groin at the police station after he was arrested.

Further, the bed barely featured in the police investigation. Investigators from SLED took nearly a hundred pictures at the house. They took pictures in the guest bedroom, where nothing had happened — even the small figurines on the bureau had not been knocked over — and of the bed in the guest bedroom, which looked as if it was ready for the next guest. But the investigators took no photos of the bed where they claimed to have found hairs.

Nor did the investigators take the sheets from the bed. Why not? “There were no obvious blood or other stains present,” one of the agents, Ira Parnell, explained during Mr. Elmore’s post-conviction relief hearing in the case. The hearing, which is much like a civil trial before a judge, is an opportunity for the defendant’s lawyers to present new evidence and to examine and cross-examine witnesses. He was categorical: “We did not see any stains of any kind.”

The state argued that while the police might have made some mistakes, none served to deny Mr. Elmore any of his constitutional rights. The hearing judge adopted the state’s arguments verbatim and declined to grant Mr. Elmore a new trial.

Perhaps Mr. Elmore’s only good fortune was that on appeal he had on his side two determined appellate lawyers, Diana Holt, who had first begun working on the case as a law school intern, and J. Christopher Jensen, an accomplished New York litigator who was representing Mr. Elmore pro bono. Two years later, they turned up new evidence that the state had sought to hide and that pointed to Mr. Elmore’s innocence.

At Mr. Elmore’s trial, the prosecutor, Mr. Jones, said he had authorized the arrest after being told that during the autopsy, the doctor had found a “Negroid” hair on the victim’s abdomen. The doctor sent the hairs and fibers found on the body to SLED, where the agent, Mr. Wells, examined them under a microscope, then put the slides in a padded envelope and labeled it “Item T.”

In the 1963 landmark case Brady v. Maryland, the Supreme Court ruled that the state must turn over all potentially exonerating evidence to the defendant. But Mr. Jones did not give Item T to Mr. Elmore’s trial lawyers. More shocking still, Item T disappeared.

When Mr. Elmore’s lawyers began searching for it, state officials repeatedly said they couldn’t find it. The lawyers persisted and, 16 years after the trial, found Item T — in Earl Wells’s filing cabinet, where the state attorney general’s office conceded it had been all along. (Mr. Wells said he found it while moving offices.)

The retired F.B.I. agent retained to examine the hair said it was not “Negroid,” but Caucasian. Mr. Elmore’s lawyers had the hair DNA-tested. It wasn’t Mrs. Edwards’s, which suggested it was from an unknown man, likely the killer. Armed with this development, Mr. Elmore’s lawyers went back to court. There was a hearing, a few days before Christmas 2000, in the same courtroom where Mr. Elmore had been convicted 18 years earlier. It was widely expected that he would get a new trial.

The judge ruled against him. “One hair is not enough,” he said. Spectators gasped. But the South Carolina Supreme Court agreed.

Mr. Elmore’s lawyers did not give up. Remarkably, in November, the Fourth Circuit Court of Appeals — historically one of the most conservative — ordered a new trial. In a 163-page opinion, the majority was searing in its criticism of the SLED agents and the police.

There was “persuasive evidence that the agents were outright dishonest,” and there was “further evidence of police ineptitude and deceit,” Judge Robert Bruce King wrote.

Even though he walked out of court on Friday, none can call it justice.

A man has served 30 years for a crime he did not commit, many of those under the threat of imminent execution. Surely, there are grounds for a Justice Department investigation into whether his civil rights were violated.


A lawyer and former New York Times reporter

and the author of “Anatomy of Injustice: A Murder Case Gone Wrong.”

    When Innocence Isn’t Enough, NYT, 2.3.2012,






Teenager Is Charged in Killing of 3 at a School


March 1, 2012
The New York Times


CHARDON, 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 Cleveland.

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.”


Sabrina Tavernise reported from Chardon, and Jennifer Preston from New York.

Alain Delaquérière contributed research.

    Teenager Is Charged in Killing of 3 at a School, NYT, 1.3.2012,






Justice and Open Files


February 26, 2012
The New York Times


Prosecutors 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,






In Minn., Rare Release of Committed Sex Offender


February 24, 2012
The New York Times


MINNEAPOLIS (AP) — A man who molested 29 boys, using soda and snacks to lure some to his home, will soon become the first sex offender to walk out of Minnesota's civil commitment program in more than a decade, a milestone for a program that has been criticized as a life sentence disguised as treatment.

Clarence Opheim's upcoming move to a halfway house is raising concerns in a state where the handling of sex offenders has long been a politically charged issue. But with the program facing constitutional challenges, some say it's time to begin releasing people who have made progress in treatment.

"It would be simpler for the administration, for us, for society to just lock people up forever," Gov. Mark Dayton said in an interview with The Associated Press earlier this month. "But it's not legal, and I don't even think it's moral."

Not everyone agrees. At a recent legislative hearing, some Republican lawmakers questioned why one of Dayton's commissioners didn't oppose Opheim's provisional discharge.

"We should have a law in the state — locked up for life, no chance for parole and/or the death penalty," Rep. Glenn Gruenhagen, R-Glencoe, said.

Minnesota has never successfully discharged a sex offender from its commitment program. In the program's 19 years, one other man was freed with conditions in 2000, but was taken back into custody on a violation.

The program targets dangerous sex offenders deemed most likely to strike again. It allows the state to pursue civil commitment as they near the end of their prison sentence and a court decides whether to commit. Through Jan. 1, 635 sex offenders — about 3 percent of those in the state — had been committed.

Minnesota's program exploded after the 2003 abduction and slaying of Dru Sjodin, a 22-year-old North Dakota college student, by a sex offender who had been freed after serving 23 years in prison for an assault and attempted abduction. Prison authorities hadn't sought to commit the man before his release.

Eric Janus, dean of William Mitchell College of Law in St. Paul and an expert on the commitment law, said the program has always been politically difficult. Lawmakers feel pressure to cut costs — the sex offender program costs $317 per patient per day, compared with about $85 per day for an ordinary prisoner — but no one wants the wrong person released on his watch. The previous governor, Tim Pawlenty, issued an executive order in 2003 discouraging discharges.

Several challenges to the Minnesota law are pending in federal court, with attorneys arguing the program is unconstitutional. A judge has put the cases on hold while attorneys seek class-action status.

Commitment laws have withstood legal challenges when it could be shown their purpose was treatment, not detention. Some lawmakers say that's where Minnesota's law is vulnerable.

"If we never let anybody out, we don't have a real treatment program, we just have an incarceration program," said Rep. Tina Liebling, DFL-Rochester. "You can never get rid of all risks."

A 2010 legislative audit cited several reasons why Minnesota hasn't released anyone, including staffing issues that likely affected the progress of some offenders. Minnesota also has a tougher standard for release, requiring offenders to complete treatment before officials will endorse discharge. The audit said some states allow for discharge if an offender simply no longer meets criteria for commitment.

That audit also criticized several elements of the program, including inconsistent treatment and not enough of it. Dennis Benson, the program's executive director, said his staff has worked hard to address issues in the report — including hiring more people. He defended treatment, saying it is tailored to each person and is sound.

Some other states have had success releasing offenders. Wisconsin has placed 96 people on supervised release since 1995 — although 38 of them had their release revoked. Texas operates its program on an out-patient basis.

State officials point out Opheim, 64, isn't actually leaving the program. He's been given a provisional discharge, meaning he can be snapped up for violating any of 32 conditions.

At a halfway house in the Minneapolis-St. Paul area, Opheim will be monitored via GPS and visits and phone calls will be logged, Benson said. He will continue to get sex offender treatment, with possible support group meetings, and his progress will be monitored. He will have daily visits from a program staffer, and could be placed under surveillance.

Opheim already lives under similar conditions in housing outside the razor wire surrounding the state treatment facility in St. Peter. He moves freely about the campus, but requires an escort to move about the community — a condition that would continue at the halfway house for the foreseeable future, Benson said.

"We will always have some kind of control over what he does, where he lives, for probably the remainder of his life," Benson said.

Health and Human Services Commissioner Lucinda Jesson said Opheim is not about to be followed by a flood of other sex offenders.

Since 2008, only nine other people have advanced to the final phase of treatment. And many hurdles remain for them: They need the support of their treatment team, the approval of a special review board and the approval of a Supreme Court appeals panel. Many of the nine are just beginning the final phase.

Sjodin's mother, Linda Walker, called Opheim's release disturbing. In the years since her daughter's murder, Walker has traveled nationwide to raise awareness about sex offenders. She doesn't believe they can be cured.

"They are very good at what they do and their main fear is being caught. They want to continue to do what they are doing," she said.

    In Minn., Rare Release of Committed Sex Offender, NYT, 24.2.2012,






Governor of Virginia Shifts Position on Abortion Bill


February 22, 2012
The New York Times


Gov. Bob McDonnell of Virginia backed down on Wednesday on a bill requiring women to have a vaginal ultrasound before undergoing an abortion. It was a sudden change of position for a conservative governor who is viewed as having political ambitions on the national stage.

The bill had drawn intense national attention in recent days, with a large protest by women’s health groups over the weekend and spoofs on left-leaning television shows.

In a political year that was suppposed to be all about the economy, this was the second instance in a month in which a public outcry organized in part by women’s health advocates through social media caused a reversal on the issue of abortion.

The governor’s decision not to support the bill capped several days of brinkmanship in which opponents of the measure lobbied furiously against it, galvanizing opposition by drawing on the image of male lawmakers mandating a procedure that requires inserting a probe into the vagina. One Democrat was prompted to denounce it as a “rape” bill.

Opponents presented what they said were 33,000 signatures protesting the measure. At the same time, the mostly Republican supporters in the legislature kept putting off debate on the measure, raising suspicions that the governor might be balking.

Finally, on Wednesday afternoon, Mr. McDonnell, a rising star in the Republican Party who is often talked about as a candidate for vice president, told Republican delegates to make changes that softened the requirements in the legislation. Some political analysts speculated that the decision was made with an eye to a broader national audience that might not look favorably on the passage of such a conservative bill.

This month the Susan G. Komen for the Cure foundation yielded to pressure by affiliates and women’s rights advocates and reversed its decision to largely end decades of partnership with Planned Parenthood.

In Virginia, in a written statement issued minutes before the House of Delegates was to debate the bill on Wednesday afternoon, Mr. McDonnell said that after discussion with doctors, lawyers and legislators, he had concluded that amendments were needed. He called for changes stipulating that the ultrasound be abdominal rather than vaginal. A doctor would be required to offer the next level of ultrasound, most often vaginal, but a woman would be free to reject it.

“Mandating an invasive procedure in order to give informed consent is not a proper role for the state,” the governor said in the statement.

The Family Foundation, a strong backer of the ultrasound bill, made reference to the Komen decision in a note to supporters blasting Mr. McDonnell’s reversal, saying that it was “extremely disappointed in this outcome,” particularly, it said, “given the strong pro-life credentials of this governor.”

The change — which passed the House in a vote of 65 to 32 — softens the bill considerably, but did not abolish the requirement that women have an ultrasound. If it is signed into law, Virginia would become the 10th state to require such procedures, though the requirement has been stayed by court rulings in two states, Oklahoma and North Carolina.

Specifically, the bill’s new wording would require a doctor to offer the woman a different type of ultrasound if the fetus is not viewable through an abdominal screening, but not require her to have one.

That opponents of the bill were successful in getting the language softened was a major success for them, particularly considering that vaginal ultrasounds are often administered before abortions anyway. A spokeswoman for Planned Parenthood said the group routinely includes ultrasounds “as part of the thorough medical practice of abortion care,” and gives the woman the option of viewing the image. But the group said a legal requirement that women undergo such a screening was politically motivated and “is the very definition of government intrusion.”

Supporters of the bill hoped such a requirement would lead some women to change their minds about having abortions, as vaginal ultrasounds usually show detailed images. Many women’s advocates called the bill an effort to shame women and said it intruded on their privacy.

Republicans, for their part, said the bill had been blown out of perspective by Democrats and liberal groups. State Senator Richard Black said that he participated in a call-in event on Wednesday morning with hundreds of constituents and that just one mentioned the ultrasound bill.

Abortion legislation was a “tiny part” of the larger body of hundreds of bills in play in the legislature, State Senator Steve Martin said. “It’s simply not a primary focus,” he said. “It only appears to be because people call me from New York newspapers acting as if it’s some big deal.”

Democrats savored their victory, giving a news conference after the House debate, but said they were hoping the bill would still be killed.

“This is definitely a retreat for the governor,” said State Senator Janet Howell, a Democrat from Northern Virginia. “The national spotlight and ridicule has had an impact. The Republicans are scrambling for an out.”

But there was some concern among Democrats over a companion bill in the State Senate that has language identical to that in the old version. It is unlikely Senate Republicans would openly defy the governor and pass that bill, but Democrats said they were watching closely.

Besides, they said, the watered-down bill is still objectionable. “It’s still putting up a barrier to a woman trying to exercise her constitutional right,” said Delegate Charniele Herring, a Democrat.

In yet another twist, the Republican sponsor of the Senate bill, Jill Vogel, said she would withdraw the legislation altogether, though it was not clear whether the rules would allow her to do so after its passage.

Delegate Bob Marshall, a Republican who had supported the bill, said the companion measure, which is due to be voted on as early as Thursday in a Senate committee, might not clear that hurdle, raising the specter of complete collapse of the ultrasound bill and giving Mr. McDonnell a way out of having to sign it.

“This is a high-stakes game,” Mr. Marshall said. “Everything is on a razor’s edge.”

Most political analysts agreed that Mr. McDonnell was seeking to defuse an embarrassing and unmanageable situation — especially at a moment when he seems to be shifting his gaze to a national, and more centrist, audience. .

“Pragmatism trumped ideology today,” said Daniel Palazzolo, a professor or political science at the University of Richmond.


Erik Eckholm and Jennifer Preston contributed reporting.

    Governor of Virginia Shifts Position on Abortion Bill, NYT, 22.2.2012,






The Big Money Behind State Laws


February 12, 2012
The New York Times


It is no coincidence that so many state legislatures have spent the last year taking the same destructive actions: making it harder for minorities and other groups that support Democrats to vote, obstructing health care reform, weakening environmental regulations and breaking the spines of public- and private-sector unions. All of these efforts are being backed — in some cases, orchestrated — by a little-known conservative organization financed by millions of corporate dollars.

The American Legislative Exchange Council was founded in 1973 by the right-wing activist Paul Weyrich; its big funders include Exxon Mobil, the Olin and Scaife families and foundations tied to Koch Industries. Many of the largest corporations are represented on its board.

ALEC has written model legislation on a host of subjects dear to corporate and conservative interests, and supporting lawmakers have introduced these bills in dozens of states. A recent study of the group’s impact in Virginia showed that more than 50 of its bills were introduced there, many practically word for word. The study, by the liberal group ProgressVA, found that ALEC had been involved in writing bills that would:

¶Prohibit penalizing residents for failing to obtain health insurance, undermining the individual mandate in the reform law. The bill, which ALEC says has been introduced in 38 states, was signed into law and became the basis for Virginia’s legal challenge to heath care reform.

¶Require voters to show a form of identification. Versions of this bill passed both chambers this month.

¶Encourage school districts to contract with private virtual-education companies. (One such company was the corporate co-chair of ALEC’s education committee.) The bill was signed into law.

¶Call for a federal constitutional amendment to permit the repeal of any federal law on a two-thirds vote of state legislatures. The bill failed.

¶Legalize use of deadly force in defending one’s home. Bills to this effect, which recently passed both houses, have been backed by the National Rifle Association, a longtime member of ALEC.

ALEC’s influence in the Virginia statehouse is pervasive, the study showed. The House of Delegates speaker, William Howell, has been on the board since 2003 and was national chairman in 2009. He has sponsored or pushed many of the group’s bills, including several benefiting specific companies that support ALEC financially, like one that would reduce a single company’s asbestos liability. At least 115 other state legislators have ties to the group, including paying membership dues, attending meetings and sponsoring bills. The state has spent more than $230,000 sending lawmakers to ALEC conferences since 2001.

Similar efforts have gone on in many other states. The group has been particularly active in weakening environmental regulations and fighting the Environmental Protection Agency. ALEC’s publication, “E.P.A.’s Regulatory Train Wreck,” outlines steps lawmakers can take, including curtailing the power of state regulators.

There is nothing illegal or unethical about ALEC’s work, except that it further demonstrates the pervasive influence of corporate money and right-wing groups on the state legislative process. There is no group with any comparable influence on the left. Lawmakers who eagerly do ALEC’s bidding have much to answer for. Voters have a right to know whether the representatives they elect are actually writing the laws, or whether the job has been outsourced to big corporate interests.

    The Big Money Behind State Laws, NYT, 12.2.2012,






Race and Death Penalty Juries


February 5, 2012
The New York Times


North Carolina courageously passed the Racial Justice Act in 2009, making it the first state in the country to give death row inmates a chance to have their sentences changed to life without parole based on proof that race played a significant role in determining punishment.

A state court is now hearing the first challenge to a death sentence under that law. Marcus Robinson, who has been on death row since 1994, must prove that state prosecutors discriminated against blacks in selecting juries, affecting the outcomes of cases, including his. His lawyers presented a notable study by researchers at Michigan State University showing this kind of bias.

In 173 cases between 1990 and 2010, the study examined decisions involving 7,421 potential jurors (82 percent were white; 16 percent were black). In 166 cases, where there was at least one black potential juror, prosecutors dismissed more than twice as many blacks from the jury (56 percent) as others (25 percent). With black defendants, like Mr. Robinson, the disparity was even greater. Even accounting for “alternative explanations” besides race for different “strike rates” — for instance, excluding those who expressed ambivalence about the death penalty — the study found blacks were still more than twice as likely to be dismissed.

Under a 1986 Supreme Court case, it is unconstitutional for a prosecutor to strike any potential juror on the basis of race, ethnicity or gender. But the court allowed dismissals of jurors for other reasons — like their attitude toward the death penalty or even their demeanor. Prosecutors often use these reasons as pretexts to eliminate blacks from juries. North Carolina’s Racial Justice Act expressly allows consideration of a pattern across many cases. The study found a regular pattern of state prosecutors intentionally discriminating against potential jurors because of race, even though a judge had ruled that the potential jurors could be counted on to render a fair verdict and sentence in a death penalty case.

This bias is not news in North Carolina. Since colonial times into recent decades, racial prejudice has been a huge factor in the imposition of death sentences in the state. The Racial Justice Act, a response to that terrible history, uses statistical studies in regulating the death penalty, as the Supreme Court said legislatures could properly do in a 1987 case. Opponents of the law are battling to repeal it and have scheduled a hearing on it this week. The evidence of gross racial bias presented in Mr. Robinson’s case calls for commuting his sentence — but also for abolishing the death penalty in North Carolina.

    Race and Death Penalty Juries, NYT, 5.2.2012,






Kansas Law on Sodomy Stays on Books Despite a Cull


January 20, 2012
The New York Times


KANSAS CITY, Kan. — Gov. Sam Brownback created the Office of the Repealer to recommend the elimination of out-of-date, unreasonable and burdensome state laws that build up in any bureaucracy over time.

For gay men and lesbians, there seemed one particularly obvious candidate: Kansas Statute 21-3505.

That would be the “criminal sodomy” statute, which prohibits same-sex couples from engaging in oral or anal sex. The law was rendered unenforceable nearly a decade ago by a United States Supreme Court ruling, but it remains enshrined in the state’s legal code.

But on Friday, when Mr. Brownback, a conservative Republican, released a list of 51 laws to recommend to the Legislature for repeal, the sodomy statute was not among them.

The decision, despite public and private lobbying, has angered gay leaders here. “We were pretty much the first in line with our request to have this unconstitutional ban on gay and lesbian relations repealed,” said Thomas Witt, chairman of the Kansas Equality Coalition.

“This isn’t just some archaic law that’s sitting on the books and isn’t bothering anyone,” Mr. Witt continued. “It’s used as justification to harass and discriminate against people, and it needs to go.”

Mr. Brownback, who is a vocal opponent of same-sex marriage on religious grounds, declined to comment, and his spokeswoman would not say whether he would support repealing the law against same-sex sodomy, a misdemeanor that officially carries a prison sentence of up to six months.

Dennis Taylor, the secretary of the State Department of Administration, which assembled the list, declined to discuss why the law was not included.

“What we’ve proposed is what we proposed,” Mr. Taylor said.

Though declared unconstitutional by the Supreme Court in the 2003 case of Lawrence v. Texas, which struck down an antisodomy law in Texas as an invasion of privacy in a ruling viewed as a crucial victory by gay rights organizations, these types of laws still exist throughout the United States.

Susan Sommer, director of constitutional litigation for Lambda Legal, a national gay rights advocacy group, said that more than a dozen states had antisodomy laws at the time of the ruling, but she did not know how many were subsequently repealed.

Those that remain, said Ms. Sommer, have a stigmatizing effect on same-sex relationships and can sometimes be wrongly cited by law enforcement officers unaware that they are no longer enforceable. “Keeping these laws on the books can still do a lot of mischief and cause a lot of harm,” she said.

Mr. Brownback has moved aggressively to push this Republican-dominated state further to the right since he was elected after serving in the Senate. He has made the Office of the Repealer a popular part of his small-government pitch. “Nothing is ever subtracted from the system,” he said after he proposed the office.

The first list of recommendations, culled from more than 500 suggestions after a listening tour was conducted around the state, represented the most obvious candidates for repeal, Mr. Taylor said.

Many include eliminating regulations the administration has deemed unnecessary, such as a requirement for physical copies of county assessor rolls that are now often stored electronically. In the anachronism category: rules for reinstating a sheriff removed from office because a prisoner in his custody was lynched.

A second list of recommendations for repeal, to be introduced as soon as this year, Mr. Taylor said, “will be more interesting and probably a little controversial.” The antisodomy law, he added, remained under review with many others.

Paul Davis, a Democrat and the house minority leader in the State Legislature, said he supported repealing the law but thought it was unlikely that Mr. Brownback would make such a recommendation.

“He’s trying not to run afoul of a very socially conservative constituency,” he said.

    Kansas Law on Sodomy Stays on Books Despite a Cull, NYT, 20.1.2012,






Miss. Court Halts Quick Release of Some Pardoned


January 11, 2012
The New York Times


JACKSON, Miss. (AP) — A Mississippi judge has temporarily blocked the release of 21 inmates who'd been given pardons or medical release by Republican Haley Barbour in one of his final acts as governor.

Circuit Judge Tomie Green issued an injunction late Wednesday at the request of Democratic Attorney General Jim Hood.

Hood said he believes Barbour might've violated the state constitution by pardoning some inmates who failed to give sufficient public notice that they were seeking to have their records cleared.

Barbour said in a statement Wednesday, a day after leaving office, that he believes people have misunderstood why he gave reprieves to more than 200 inmates. Most received full pardons, while others received suspended sentences because of medical conditions. Barbour said 189 of the inmates had already completed their incarceration.

Barbour was limited to two terms and issued the list of pardons and early releases Tuesday about the time his successor, Republican Phil Bryant, was being inaugurated. Barbour wouldn't answer repeated questions about the pardons Tuesday.

In Wednesday's statement, Barbour said: "The pardons were intended to allow them to find gainful employment or acquire professional licenses as well as hunt and vote. My decision about clemency was based upon the recommendation of the Parole Board in more than 90 percent of the cases."

The pardons angered even some of Barbour's most ardent supporters in Mississippi, including some conservatives who say the actions tarnished his legacy. It also has created concerns within the state that his decisions may make Mississippi look backwards. Yet Barbour is unlikely to face political repercussions from the decisions — he has said he doesn't expect to run for any elected office, nor does he expect to be chosen as a GOP vice-presidential nominee.

Barbour spokeswoman Laura Hipp was not immediately available for comment about Green's decision to temporarily block release of the 21 inmates. It was not clear how many of the 21 are convicted killers.

Section 124 of the Mississippi Constitution says any inmate seeking a pardon must publish notice about his intentions. Before the governor can grant it, the notice must appear 30 days in a newspaper in or near the county where the person was convicted.

Hood said it's not clear whether all the inmates pardoned by Barbour met the publication requirement, and that he believes it's likely that some did not.

"It's unfortunate Gov. Barbour didn't read the constitution," Hood said Wednesday.

Mississippi Department of Corrections spokeswoman Suzanne Singletary told The Associated Press that five inmates let out over the weekend are the only ones on Barbour's list who had been released as of Wednesday evening. She said the 21 were still in custody because processing paperwork generally takes several days. Among other, things, state law requires the department to give victims 48 hours' notice before an inmate is released.

Neither Hipp nor Barbour's lead staff attorney, Amanda Jones Tollison, responded to questions about whether Barbour's staff verified that pardoned inmates had met the 30 days' publication requirement.

Each of the five inmates released this past weekend had worked as a trustee at the Governor's Mansion. They are David Gatlin, convicted of killing his estranged wife in 1993; Joseph Ozment, convicted in 1994 of killing a man during a robbery; Anthony McCray, convicted in 2001 of killing his wife; Charles Hooker, sentenced to life in 1992 for murder; and Nathan Kern, sentenced to life in 1982 for burglary after at least two prior convictions.

Singletary said each of the five men published legal notices in local newspapers within the past month.

Hood said several of his staff members spent hours Wednesday calling newspapers and checking whether others on the clemency list published their notices in advance. He said Green agreed to his request to require each of the five who've been released to appear in court to prove they met the publication requirement. He did not say where or when those appearances would take place.

Relatives of the killers' victims said they were outraged by the release, and some said they're worried for their own safety.

Barbour, a former Republican National Committee chairman, considered running for president this year but announced last April that he would skip the race because he didn't have the "fire in the belly." The 64-year-old is now on the paid speakers' circuit and is also working for a Jackson-area law firm and for BGR, the Washington lobbying firm he founded two decades ago.


Associated Press writer Jeff Amy contributed to this report.

    Miss. Court Halts Quick Release of Some Pardoned, NYT, 11.1.2012,






Man Accused of Killing Women Defends Grim Photos


January 11, 2012
The New York Times


SAN RAFAEL, Calif. (AP) — A former photographer accused of killing four Northern California women with matching initials in the 1970s and 1990s defended disturbing pictures of women that were found in his Nevada home, saying they were created for magazines that featured such work.

The comments by Joseph Naso, 78, came during a preliminary hearing Tuesday in his murder trial. Naso has pleaded not guilty to the murders and is representing himself in what will likely be a death penalty case.

Probation officer Roger Jacobs, who found the photos in a search of Naso's home, was the first witness called at the hearing. He said the pictures showed nude women posed in "unnatural positions" who appeared dead or unconscious.

"I saw numerous photographs of women in various unnatural positions," said Jacobs, who supervised Naso's probation for the Nevada Department of Public Safety. "Some appeared to be asleep, some appeared to be unconscious and some non-responsive."

Naso was on probation in 2009 following a conviction for felony larceny in California. Jacobs found the photos while searching Naso's home after he violated his probation when officers found ammunition on Naso's property in Reno, Nev.

Jacobs said the photographs were near a list Naso had scrawled with descriptions of 10 women, including four references prosecutors believe describe victims Naso is charged with killing: Roxene Roggasch, Carmen Colon, Pamela Parsons and Tracy Tafoya. The first letters of the victims' first and last names gave rise to suspect's "Double Initial" nickname.

The photos and the list led to Naso's arrest for the murders of the four prostitutes in April and his extradition to California from Nevada.

Six other women referred to on the list have not yet been identified, but prosecutors say the investigation is ongoing.

The bespectacled Naso, who sat alone at the defense table in his red-and-white-striped jail clothes, struggled throughout his cross examination, often launching into long statements instead of asking questions.

But Naso said the photographs only served as evidence that he derived pleasure from looking at posed or "fabricated" photographs of women who were acting dead or asleep. He likened the photographs to a horror movie, saying the disturbing images were created for magazines that featured such work.

"Do you agree that in magazines you see similar images as in movies ... of people posing to appear deceased?" Naso asked Jacobs.

Jacobs said he did, but noted that the women in Naso's pictures appeared in "unnatural, uncomfortable or unsustainable" positions.

Prosecutors have also said Naso kept news clippings of the slayings in a safety deposit box.

No. 3 on Naso's list was "Girl from Loganitas," who prosecutors believe is Roggasch, whose body was found near Lagunitas, a small town near the coast in Marin County. Court documents show Naso might have used his then-wife's panty hose to strangle Roggasch, a prostitute whose 1977 murder went unsolved for decades. Authorities say the DNA of Naso's ex-wife was found on the hose.

Colon's decomposed body was found near Port Costa 1978 by a California Highway Patrol officer in Contra Costa County. Authorities have said DNA evidence collected from her fingernails could tie Naso to her slaying.

No. 2 on the list was "Girl near Port Costa," Jacobs said.

Parsons' strangled body was found in Yuba City in 1993, where Naso was living at the time with his mentally ill son. Court documents state that Naso had photographed Parsons.

Tafoya was killed in Yuba City when Naso lived there. Her body was found on the side of Highway 70 near Marysville Cemetery in 1994.

No. 10 on the list was "Girl from MRV Cemetery," Jacobs said.

Investigators were looking into other unidentified references on Naso's macabre list. No. 4 was "Girl from Mount Tam," a popular hiking and cycling mountain in Marin County. Other women on the list included mentions of Healdsburg, a town in Northern California; Berkeley; and what appeared to be an address in San Francisco.

    Man Accused of Killing Women Defends Grim Photos, NYT, 11.1.2012,




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