Thursday, September 25, 2008
Lee Wayne Hunt Revisited
In the March 20th edition of The Guardian, I wrote concerning Bullet Lead Analysis, which had been exposed as junk science and had been a major factor in convicting some 2500 people.
The case of Lee Wayne Hunt, in which it had played a major role in bringing about a wrongful conviction, was prominently featured in that article, not only because the case against Hunt falls apart without that debunked science, but also because unrelated evidence of Hunt’s innocence had surfaced. Specifically, an attorney who represented Hunt’s co-defendant came forward and said that his recently-deceased
client had admitted to him that he had committed the murder alone, and that Hunt had nothing to do with it.
On September 15, 2008, 60 Minutes re-aired the piece about bullet lead analysis and gave an update. In this article I intend to take a further look at Hunt’s case, as well as looking at the further implications of this junk science.
Bullet Lead Analysis Explained
In order for readers to fully understand its significance, it is necessary to understand precisely what bullet lead analysis is. According to the joint project between 60 Minutes and e Washington Post, the FBI has been using bullet lead analysis for about 40 years. The Bureau performed bullet lead analysis for state and federal law enforcement agencies in more than 2500 cases.
In a timeline extrapolated from The Washington Post, the following events occurred: In 1991 the FBI conducted its first substantial study on the reliability of bullet lead analysis, which raised two red flags: The study found that the lead composition of bullets in the same box did not
always match. Further, they found two bullets made in two different time frames and from different batches of lead unexpectedly did matched.
Nonetheless, FBI witnesses continued to suggest to juries that bullets could be matched to suspects’ boxes. Yet they kept using it and allowing their agents testify as expert witnesses as evidence used to convict defendants. Not only that, but they simultaneously withheld that information from defense attorneys, thus preventing them from being able to show that the evidence used against their clients was not scientific and thus unworthy of belief.
In the Fall of 2002, faced with former chief metallurgist for the FBI William Tobin’s study and increasing legal challenges, the FBI lab asked the National Academy of Science’s National Research Council to create a panel of experts to study the scientific underpinnings of the Bureau’s lead bullet analysis testimony.
In 2004, the National Academy of Science issued its report stating that while the lead analysis measurements the FBI conducted in its lab were accurate and reliable, Bureau examiners had been overstating the significance of those findings to jurors. They specifically cited problematic testimonies by several FBI examiners and urged that the FBI stop telling jurors it could match bullets to suspects’ boxes.
Then, once the report was made public regarding the findings that the process had no scientific validity, they neglected to tell the attorneys who had represented clients whose cases had been affected. John Solomon, in an article in The Washington Post, wrote that Hunt “said in a prison interview with The Washington Post and 60 Minutes that he was never informed by the FBI, and that his attorney discovered the
flawed science while attending a conference.
‘We wouldn’t know about it today if we were waiting to hear from anybody else,’ said Richard Rosen, a professor at the University of North Carolina at Chapel Hill, who has taken up Hunt’s bid to win freedom. “I think anybody involved in a case involving fraudulent
scientific evidence ought to know.”
The Case Of Lee Wayne Hunt
According to a press release from The Innocence Network, a national network consisting of all of the groups across the country that work to undo wrongful convictions, the facts of Hunt’s case are as follows: “In 1986, Hunt was convicted of murdering two people in North Carolina, and sentenced to two life sentences. The evidence against Hunt consisted of a fellow jail inmate who said he heard Hunt describe details of the killings and from a man who said he drove Hunt and two others to the Matthews’ home. The jailhouse informant had his sentence reduced in return for his testimony, a second informant, Gene Williford, whom prosecutors didn’t charge in the murder in the Matthews’ murders and gave him immunity in a slew of unrelated drug and weapons charges, along with the bullet lead analysis testimony.
The FBI agent testified that bullets taken from the victims’ bodies “most likely” came from a box of bullets tied to the defendants. This testimony had the effect of seeming to corroborate the snitch testimony. Hunt offered alibi evidence and testimony by himself and several of his friends that one of the other men, Jerry Cashwell, who was convicted in a separate trial, admitted committing the murders alone. Hunt was nonetheless convicted. After Cashwell’s suicide in prison, his lawyer, Staples Hughes, came forward and revealed that early on in the
proceedings in this case, Cashwell had admitted to his lawyers that he had committed the murders alone, and that he had provided details.”
The lawyer had not come forward because he did not want to violate attorney client privilege. However, now that Cashwell had died and he wanted to see the wrongful incarceration of Hunt ended, he came forward. At a hearing on January 8, 2007, in Cumberland County Superior Court, the prosecution in Hunt’s case stipulated to the unreliability of Peele’s “expert” testimony.
Earlier this year, Hunt’s new lawyers unsuccessfully attempted to present all of this evidence of innocence to North Carolina Superior Court Judge Jack Thompson. When Hughes got on the stand to offer his testimony of Hunt’s innocence, Judge Thompson’s reaction was first to warn Hughes that he would report Hughes to the North Carolina State Bar for violating Cashwell’s attorney-client privilege.
Hunt also had subpoenaed the prisoner who testified against him to the hearing. But, when the prosecution stated that they might charge him with perjury if he testi-fied about Hunt’s innocence, the prisoner who testified against Hunt also refused to testify.
Judge Thompson later issued an order dismissing the FBI’s discredited lead bullet analysis evidence as irrelevant, and held that he could not even consider Hughes’ testimony about Cashwell’s admissions. The North Carolina Court of Appeals refused to even review Judge Thompson’s decision. It is unclear at this point whether Hunt will ever be granted another opportunity to have a trial at which the junk science could be debunked.
With the re-airing of the 60 Minutes piece, I decided to look once again at Hunt’s case. There is additional information about Hunt that I would like to share. Taken from an article by John Solomon in 2007 in The Washington Post, “Hunt vividly remembers the day 21 years ago when an FBI scientist walked into a North Carolina courthouse and told jurors that he was able to match the lead content of bullets found
at the crime scene to that of bullets in a box connected to Hunt’s co-defendant. The testimony provided the sole forensic evidence to corroborate the prosecution’s circumstantial case. ‘It was like him bringin’ a gun in and say that this is the murder weapon that was used to kill these people,’ Hunt said of the FBI testimony. ‘It’s the same thing. He said that these are the bullets that come out of this box that killed these people.’”
Hunt’s trial attorney, Richard Rosen, agrees with Hunt’s categorization of the evidence. In Solomon’s above mentioned article, Rosen said “I thought it was very important to our client’s conviction. It was the single piece of physical evidence corroborating their story. And it came from, you know, it came from the mountaintop. I think everybody in the courtroom assumed that this was valid evidence.”That evidence was the only corroboration of the two witness’s who testified against Hunt in exchange for the aforementioned benefits.”
Additional evidence of Hunt’s innocence not mentioned in my prior article in The Guardian was that Hunt had an alibi for where he was during the murder: his mother and aunt. That information was in front of the jury, which rejected it.
There have been several updates. Firstly, a complaint was filed against Staples Hughes for violating the attorney-client privilege for coming forward and testifying that his now deceased client admitted to him that Hunt was innocent and that he had committed the crime by himself.
That complaint has now been dismissed. Hunt’s continued attempts to regain his freedom by proving that he is innocent have been in vain, as will be detailed below. The work pertaining to the review being done by the FBI, with The Innocence Conference Network and The National
Association Of Criminal Defense Lawyers monitoring of the FBI’s compliance with its own procedures during that review of the 2500 cases in which bullet lead analysis was a factor in convicting the defendant, is continuing.
Hunt’s Attempts At Winning His Freedom
Hunt’s original appeals have long ago been exhausted. Since getting the information regarding the junk science and the attorney coming forward to testify that his former client gave him a detailed confession and consistently maintained that Hunt had nothing to do with it, Hunt has been trying to regain his freedom, or at the very least, a new trial.
The Washington Post reported: “Despite the developments with Hughes and the FBI science, the trial judge has refused to grant Hunt a new trial, saying that the new evidence was not compelling enough.” In addition, the judge ruled that he would not even consider the testimony of the attorney, even though in another case, in Illinois, that of Alton Logan, that I wrote about in The Guardian in a previous article, and in a Virginia case, testimony from an attorney was accepted. “We’ve got evidence of innocence, and they’re refusing to listen to it based on technicalities,” Rosen said. The Fayetteville Observer wrote: “In January 2007, Cumberland County Superior Court Judge Jack Thompson refused to reopen the case. Part of Judge Thompson’s ruling, urged by the prosecutor, was that the testimony was properly excluded because it was hearsay.
The State Court of Appeals did the same in August. In an order made public Friday, the Supreme Court said it will not hear his case. It gave no explanation. “We’re disappointed, and we don’t think justice has been served, is all I can say,” said Kenneth Brown, one of Hunt’s lawyers. The lawyers next will take the case to federal court, he said.”
State prosecutors had argued in court filings that the FBI’s testimony was unreliable, but they argue that the conviction should stand because two witnesses implicated Hunt after receiving plea deals. Reported in The Washington Post, the prosecutor, James J. Coman, who is now North Carolina’s deputy attorney general declined an interview request, but his office, in a statement, cited the judge’s ruling that the bullet-lead evidence was of “minimal importance.”
The New York Times reported that Hunt has one novel avenue left — applying to the recently-created North Carolina Innocence Inquiry Commission. That board makes recommendations to a three-judge panel that can free exonerated prisoners.
It should be plain to see that Lee Wayne Hunt is innocent. The attorney coming forward and testifying that his client admitted that Hunt was innocent and that he had committed the crime alone, is evidence of innocence. The attorney did not simply say that his client confessed, but that it was a detailed confession, and that he consistently maintained that admission throughout his incarceration to his death. When it is the
other way around, as my article on Incentivized Witnessing illustrated, and a prisoner wants to implicate another person, then that is viewed as being believable. In fact, in Hunt’s case, that very thing happened: other people involved in crime implicated Hunt, and it was viewed by the prosecutor and the judge as being worthy of belief.
The double standard of testimony being believable if it is damaging to a defendant but not believable if it is favorable, is hypocritical and inconsistent with justice. In fact, a confession to a defense attorney is even more believable because it is not being given in exchange for any benefit. Nor, since the attorney-client privilege was in effect and Cashwell had no basis to think that his attorney would ever come forward and reveal it, could he have done so in order to try to falsely clear Hunt.
The revelation that the bullet lead analysis, which played a major role in Hunt’s being convicted, only makes his claim of innocence even stronger. Without that testimony, there is no corroboration of the testimony of the two men who received benefits in exchange for their testimony. It is laughable that a prisoner would be freely talking about a double murder for which they were incarcerated to other people in
That would leave one piece of evidence: A witness, Gene Williford, whom prosecutors didn’t charge in the murders and gave immunity to in a slew of unrelated drug and weapons charges. His testimony, uncorroborated, is not enough to prove beyond a reasonable doubt that Hunt committed the murder.
It is known that witnesses who are offered benefits in exchange for testifying have been the cause of wrongful convictions in 15% of the now 220 DNA proven wrongful convictions. Accordingly, I find that the argument made by the prosecution supporting the judge in saying that the bullet lead analysis was insignificant, to be absurd. Similarly, the prosecution argument that the testimony from the lawyer was hearsay, is ridiculous. Of course it is; he is dead. Other than the lawyer testifying as to what he was told, how else could the evidence be received
in order to free an innocent man?
This line of reasoning by the judge, which goes by the letter of the law rather than the spirit of it, is an example of courts taking on a quasi law enforcement role in which they seek to uphold convictions by any means necessary rather than objectively and fairly considering them.
One purpose of the hearsay rule is to prevent evidence coming in against defendants without giving them the ability to cross-examine the source. It is not to prevent evidence of innocence from being heard.
The prosecutor would have had an opportunity to cross-examine the lawyer if he did not believe him. Rather, this argument by the prosecutor, is an example of the win-at all-cost mentality by many prosecutors and a refusal to admit error. It is a disgrace when prosecutors use procedural issues to fight against claims of innocence; and, clearly, that is what is going on in the Hunt case. They didn’t argue that the evidence didn’t prove Hunt innocent; they argued that it should not even be considered. This mentality is very reminiscent of the Jeanine Pirro mentality “Cage The Bastards”, which she actually titled as the name of a chapter in that book she co-authored.
What is even more pathetic, and sadder yet, is the fact that North Carolina Courts have co-signed those arguments by the judge accepting them and the appellate courts refusing to overturn the decision. Rather than admitting that the court system screwed up, they would rather keep an innocent man in prison.
It is because of this very type of rubber stamp denying of appeals and this mentality, that I advocate for a review apparatus independent of appeals courts and the governors office. I am glad that North Carolina has an additional review mechanism for Hunt to apply to, even though I don’t like how it is set up with the commission merely making recommendations to a three-judge panel rather than having the power to review and release prisoners on their own.
Deficient judges, after all, are the reason to have a review panel in addition to an appeals system. To that extent, doing it that way defeats the purpose. What will happen when a commission recommends that a conviction be overturned based on evidence, but the three-judge panel refuses to follow the recommendation? The accused will then remain in prison. Thus that remedy has a large potential to be ineffective.
It is not enough for a prosecutor to maintain their integrity and to righteously cloak themselves in the mantle of a reformer, caring about justice and not simply winning. They must do the right thing in every case. James Coman, who is now a deputy Attorney General in North Carolina and is credited with halting the Duke Lacrosse Players rape case, which appeared two weeks ago in The Guardian, was, in this case, a part of the defend convictions at all costs regime in the Hunt case.
As important as Hunt’s case is, there are implications for cases well beyond his. Bullet lead analysis was used in 2500 cases across the country. That means that all of those convictions are questionable, and there is no telling how many people are actually innocent. If only 10% are, then that is 250 people. But the number could be as high, some experts say, as 50%.
As I see it, any type of review in which courts try to remove that evidence from their mind and consider the other evidence separately, would be invalid, because that evidence was in the jurors’ minds when they decided to convict. There is no telling what they would have decided had that faulty evidence not been there. Accordingly, every single person who was convicted based even partially on the junk science should have
their convictions overturned and be given a new trial. It is one of my unshakable positions that everybody deserves a fair trial, irrespective of one’s subjective belief in the guilt or innocence of an accused. In terms of prosecutors or courts arguing that “the evidence was harmless”, as
they sometimes like to say when offering up a rationale for maintaining a trial verdict which has been tainted by errors, my response to that is that if it was harmless, the prosecutor would not have wasted time introducing that evidence.
Catherine Wilson, Bureau Chief
Tracking Fat Kids
Starting this September, some local school children will be tested for more than just their academic and athletic abilities. The New York
State Department of Health has mandated that certain area schools must also start keeping records on individual body mass, the body mass
index, or BMI, for each child. The New York State Legislature passed a law in 2007 requiring some schools outside of New York City to collect and report a summary of students’ weight status. To protect student privacy, no personal identifying information will be reported.
“Childhood obesity has reached epidemic proportions in New York,” said State Health Commissioner Richard F. Daines, M.D. “The students’ weight data collected and reported with the assistance of school health professionals will help the state, counties, communities, and
school districts better assess what actions are needed to address this threat to our children’s health.”
Daines noted that obesity is associated with increased prevalence of Type 2 diabetes in children and obesity contributes to many chronic diseases, including diabetes, heart disease, joint problems, and some types of cancer.
Poor nutrition and lack of physical activity are the leading causes of obesity. The Health Department already collects data on infectious diseases for the State’s communicable disease prevention efforts. “By collecting vital weight status information, we can begin to treat obesity like other public health threats and better target our prevention efforts,” said Commissioner Daines.
But by tracking the body mass index of school children in mostly affluent school districts, the Health Department is avoiding other contributions to obesity, such as low income and poor education. In addition, many health experts believe that obesity is a side effect of health problems and belies the real source of the problem – poor nutrition.
In November 2007, The Guardian interviewed Dr. Susan Rubin, a Chappaqua holistic nutritionist and the subject of a documentary on
school nutrition, Two Angry Moms. Dr. Rubin has been a strong advocate on improving the nutrition of our school children for almost two
Last November Dr. Rubin warned Guardian readers and state representatives that “obesity is just the tip of the iceberg. Normal weight children will also eventually suffer severe health problems from consuming unhealthy food”.
Dr. Rubin spoke of a “toxic food environment” that she believed was “poisoning our children”. According to her, “By the time a child
graduates from high school they could have conceivably consumed unhealthy ingredients and dangerous additives in 2,340 meals – 180 school
lunches per year for 13 years, and that’s not counting the junk in the snacks in school vending machines, sports drinks at team games, candy
sold at fundraising events, etc.”.
The Guardian asked Dr. Rubin to comment on the new law and the impact it will have on our children’s health. “This law is only
addressing the side effect of obesity” she stressed. “The real issue is our children are over-fed but undernourished. We’re being told that we
should count calories to control our weight and we’re giving our children 100 calorie bags of cookies for their school lunches. But 100 calories of crap is still crap! We have to stop looking at the quantity of our food and concentrate on the quality instead.”
Rubin attributes part of the problem to the nature of health care in our society. “Even our insurance coverage belies the problem; why did medical insurance become known as ‘health’ insurance?” Rubin asked. “Medical care is not health care. Medical care addresses specific
problems in our bodies. Health care is about the whole individual, physical, emotional, and psychological, emphasizing the prevention of
Rubin stressed that, “Good nutrition is one of the major tools in preventing a variety of problems. Kids with better nutrition not only
have better health, but they have better behavior and better grades as well.” Rubin believes that good food affects more than just our health.
“Food affects not only public health, but also social justice and our environment,” she noted.
Recent studies support Rubin’s belief that our children’s health, behavior, and academic achievement depends upon the quality of the
food they consume. When the Appleton, Wisconsin High School was confronted with violence and disruptions, problems necessitating a
full-time police officer on duty, they replaced all processed foods in their cafeterias with nutritious food. The school has noted an improvement in student behavior for the past seven years of the new food program.
School children in Wisconsin schools see the direct impact of food on behavior for themselves by conducting experiments on mice. Mice fed junk food displayed poor sleeping habits, anti-social behavior, and even violence whereas the mice on the nutritious diets slept and behaved
normally. The children also learned that the incorrect behaviors can be redeemed by weaning the junk-addicted mice back onto healthy diets.
The problem of poor nutrition and what Dr. Rubin calls “the toxic food environment” is spread across all socio/economic groups and education levels. “We live in a golden ghetto” Rubin said, referring to Westchester County. “Studies show that there is actually a higher level
of dysfunction at higher level income groups.” Rubin attributes this to the quality of the food. “New immigrants from poor countries eat
better than children from rich families.
Rich parents do not feed their children a diet of rice and beans. Instead, parents try to be ‘the cool mom’ by providing Sunny Delight
and other sugar-charged foods to their kids and their friends. They are bombarded with advertising that shows children responding to parents who give their children junk food and they are responding to those messages.
Unfortunately, as the immigrants adopt our poor eating habits and bad diets, they also develop our health problems. The message that only
bad parents make their children eat healthy is echoed on television and movies. A recent movie, “The Nanny Diaries” portrays a health-conscious mother as neurotic and cold and the child is ‘saved’ by a ‘loving’ nanny who feeds him junk food.
The skyrocketing cost of food lately is also having an impact on the quality of food that parents can provide for their children. Due to Federal farm subsidies for sugar, the current cost of a gallon of soda is approximately one-fifth the cost of a gallon of milk. Ironically, that may soon change due to the oil crisis. According to the Food and Water Watch Organization, “Twenty percent of the fossil fuel used in the United States goes toward food production. The U.S. food system includes agricultural production, the processes involved in growing and
harvesting food crops and livestock, as well as the post-agricultural processes of transporting, packaging, and storing food. Only one-fifth of this energy is used in agricultural production, the processes involved in growing and harvesting food crops and livestock, as well as the post-agricultural processes of transporting, packaging, and storing food. Only one-fifth of this energy is used in agricultural production. The rest
is expended moving, processing, packaging, selling, and storing food after it leaves the farm.”
Fertilizers used in the production of food are made from fossil fuels. As fuel prices increase, the cost of fertilized food products will increase as well. According to a report in the United Kingdom issued September 2, 2008, “organic food could become cheaper than other produce.”
Oil is predicted to reach $200 a barrel within five to ten years, pushing the profit margins for fertilized food products lower and increasing
their prices to compensate. Peter Melchett, the policy director of the British Soil Association notes, “As oil inevitably becomes scarcer
and costs more, economic forces increasingly favor organic farming”.
Organic foods contain no pesticides. Therefore, advocates for better school food, such as Dr. Rubin, believe that organic foods are the best food products to serve our children to assure their overall health and well being.
The impact of rising fuel prices echoes Dr. Rubin’s beliefs that food affects more than just our health but also our social environment. She believes that the New York State Health Department and the State Legislature, with their school obesity legislation, are looking at only a narrow aspect of the problem. Global forces along with social issues are impacting what our children eat resulting in negative long-term ramifications to their health. As Rubin notes in her documentary, “It’s not about the cupcakes”. To solve our children’s health problems “we need to look beyond obesity and at the quality of our food”. Dr. Rubin stresses, “We need to consider that every child is at risk.”
The Westchester County School Districts On The Legislative List:
Ardsley Union Free School District
Blind Brook-Rye Union Free School District
Bronxville Union Free School District
Byram Hills Central School District
Dobbs Ferry Union Free School District
Edgemont Union Free School District
Elmsford Union Free School District
Greenburgh Eleven Union Free School District
Greenburgh-North Castle Union Free School District
Harrison Central School District
Hendrick Hudson Central School District
Irvington Union Free School District
Katonah-Lewisboro Union Free School District
Lakeland Central School District
Mount Pleasant Central School District
New Rochelle City School District
Ossining Union Free School District
Peekskill City School District
Pelham Union Free School District
Rye City School District
Scarsdale Union Free School District
Tarrytown Union Free School District
Tuckahoe Union Free School District
Valhalla Union Free School District
White Plains City School District
Noticeably missing from this list are the school districts of
Yonkers and Mount Vernon.
County Workers Finally
Get Their Contract
Last Tuesday, September 16th, at noon, there were more than 500 members of Unit 9200 of the Civil Service Employees Association,
CSEA, representing 4,000 employ-ees of Westchester County, picketing and demonstrating on Martine Avenue, White Plains, in front of
the Edwin Michaelian County Of-fice Building.
They were protesting three years without a contract, the last two of which have seen numerous periodic protests, most at the same site,
but also at the Rye Town Hilton on the occasion of Andy Spano’s birthday fundraiser. Even Nicolas, once “The Little Kid In The
Stroller,” now 2½, showed up on his own two feet. Men and women from every department, Public Works, secretarial pools, the Department of Community Mental Health, the Department of Social Services, and scores of other County agencies, were marching together,
united in their determination to achieve a contract after three years of arrogant, unreasonable treatment from Larry Schwartz, Deputy
County Executive, whose contempt for them had been amply demonstrated.
Chants of What do we want? answered by 500 voices shouting Contract, followed by When do we want it? answered by Now, again 500 strong were heard over and over again. The mood of the crowd seemed more militant, more strike-ready, than we had seen at prior demonstrations. At one point, State Senator Ruth Hassell Thompson grabbed the megaphone and attempted to explain the financial
plight of state and municipal agencies in New York, particularly in light of the previous day’s 500-point Stock Market decline while, at the
same time, reassuring picketers that she was four-square behind them.
We asked the Senator, “Do you suppose, in light of the State’s financial problems, that deputy commissioners and commissioners might
be willing to make give-backs?” The Senator responded, “Since they are asking for give-backs, they should be willing to do the same.”
By Tuesday evening, there was word from Union President Jack McPhillips that the Union and the County had reached a tentative agreement, and were very near a signed contract. Readers will recall that several weeks earlier, when the Union delivered petitions to
the Board of Legislators and the County Executive’s Office, it was clear that the legislators, and Chairman Bill Ryan, were sympathetic to their requests for a contract; one that would provide for a livable wage and health insurance. Ryan, at the time newly emerged from Westchester Medical Center, and cardiac surgery, took the time to speak with McPhillips and a delegation of four other Union officials.
However, on the ninth floor, no one from the County Executive’s Of-fice was prepared to greet, much less speak with, McPhillips and his crew. They were relegated to leaving their petitions, with thousands of signatures, at the desk of the receptionist. The attitude projected by
Larry Schwartz that day was completely consistent with his management style and his imperial approach to the County workforce. He was okay with thousands of County employees working for three years without a contract while, at the same time, he gave $28,000-plus raises to the Commissioners of Elections, bringing their salaries, for part-time positions, to $150,000 each, twice what election commissioners
in Nassau County earn.
Yes, Larry was okay with no contract for rank-and-file County employees for three years, while $13-20 million would be spent to take a rundown shell of an Ardsley building off the hands of a major contributor to Andy Spano’s political campaigns. And, tens of millions of dollars were unnecessarily overspent on solid waste disposal in order to do business with a hauler the City of New York would not deal with. To be sure, there’s more to that fact than meets the eye; and we will report our findings and the implications in the very near future.
In Our Opinion...
Cop Out City
The conduct of Yonkers Police Office Wayne Simoes, caught on a surveillance camera as he all but murdered Irma Marquez, is totally indefensible; and so is the conduct of Mayor Amicone, Police Commissioner Hartnett, Simoes’ superiors, and the City’s Corporate Counsel. It is clear from the course the City of Yonkers has apparently chosen to follow, both with respect to Of-ficer Simoes, and his victim, Ms. Marquez, that there is obvious and identifiable culpability at every level of elected and appointed authority, and that nothing short of a comprehensive federal response will suffice. Every police officer, from the Commissioner, a civilian, on down, who failed to properly respond to the irrefutable evidence of the videotape, must be appropriately prosecuted for covering up a serious crime.
A published newspaper account by reporter Timothy O’Connor in The Journal News quoted attorney Peter Meisels, of the Wilson, Elser law firm, White Plains, representing the City of Yonkers, saying in Federal District Court, “As it turns out, Ms. Marquez was highly intoxicated. She was interfering with the police officers’ ability to render aid to her niece.”
Apparently, the Amicone Administration sees something in the videotape the rest of the civilized world, including the two officers administering that aid, is somehow missing. In fact, they have already testified at Marquez’ ill-advised criminal trial that they were not hampered in their efforts by her.
We must question precisely where Meisels, and the Amicone Administration, think they are going. Do they mean to suggest that Marquez’ intoxicated condition provides justification for having slammed her, face-first, into a tile floor like a rag doll? Is brutality at the hands of police the “wages of sin”?
We think not. The Murphy-Mayo Report, commissioned 20 years ago by then-Yonkers City Manager DeLuca, made the need to eliminate police brutality, and to establish a Civilian Complaint Review process, very high priorities going forward. It is obvious that successive City administrations of which Phil Amicone has been a key player for more than a dozen years, have had no intention of eliminating the police brutality and repeated use of excessive force. It is no coincidence that only the Yonkers Police Department, of all departments in the
region, sends its uniformed officers out on patrol without name tags.
To attempt to suggest that Ms. Marquez’ being intoxicated, in a drinking establishment, somehow mitigates Officer Simoes’ nearly killing her merely confirms the very sick mentality of those in authority and position in the City of Yonkers. No right-minded Yonkers cop can possibly sympathize with, or defend, the actions of Wayne Simoes, nor the response of their department.
We once again call upon the City of Yonkers to establish a bonafide Civilian Complaint Review Board; one that is chaired by, and controlled by, civilians. Further, we call for the mandatory wearing of name tags by all uniformed police officers; and, random compulsory drug and steroid testing.
Our Readers Respond....
Reader Declares He’s A Little Confused
I’m a little confused. With all the misinformation filling the print and electronic media, you may be too late. Let’s see if I have this straight and, in so doing, may be of help to you...
Obama: If you grow up in Hawaii, raised by your grandparents, you’re “exotic, different”.
Palin: Grow up in Alaska, eating mooseburgers, a quintessential American story. Obama: If your name is Barack you’re a radical, unpatriotic Muslim.
Palin: Name your kids Willow, Trig and Track; you’re a maverick.
Obama: Graduate from Harvard Law School you are unstable.
Palin: Attend five different small colleges before graduating, you’re well-grounded.
Obama: If you spend three years as a brilliant community organizer, become the first Black president of the Harvard Law Review, create a voter registration drive that registers 150,000 new voters, spend 12 years as a Constitutional Law professor, spend eight years as a State Senator representing a district with over 750,000 people, become chairman of the State Senate’s Health and Human Services Committee, spend four years in the United States Senate representing a state of 13 million people while sponsoring 131 bills and serving on the Foreign Affairs, Environment and Public Works and Veterans Affairs Committee, you don’t have any real leadership experience.
Palin: If your total resume is local weather girl, four years on the city council and six years as the mayor of a town with less than 7,000 people, 20 months as the governor of a state with only 600,000 people, then you’re qualified to become the country’s second-highest ranking executive.
Obama: If you have been married to the same woman for 19 years while raising two beautiful daughters, all within Protestant churches, you’re not a real Christian.
McCain: If you cheated on your first wife with a rich heiress, and left your disfigured wife and married the heiress the next month, you’re a good Christian. Obama: If you teach responsible, age-appropriate sex education, including the proper use of birth control, you are eroding the
fiber of society.
Palin: If, while governor, you staunchly advocate abstinence only, with no other option in sex education in your state’s school
system while your unwed teen daughter ends up pregnant, you’re very responsible...Never mind that you and First Dude eloped because
of your own out-of-wedlock pregnancy.
Obama: If you wife is a Harvard graduate lawyer who gave up a position in a prestigious law firm to work for the betterment of her inner city community, then gave that up to raise a family, your family’s values don’t represent America’s.
Palin: If your husband is nicknamed “First Dude”, with at least one DWI conviction and no college education, who didn’t register to vote until age 25 and once was a member of a group that advocated the secession of Alaska from the United States of America, your family is extremely admirable.
Ed Krauss, Greenburgh
The Court Report
By Richard Blassberg
Back In Judge Karas’ Court
Unscheduled Pre-Trial Hearing For Deskovic
United States District Court, White Plains
Judge Kenneth M. Karas Presiding
Tuesday afternoon of last week, Jeffrey Deskovic, now 35, a free man having been exonerated after 16 years in state prison for a rape
and murder of a high school classmate that DNA testing eight months before trial had shown he was innocent of, was back in United States District Court with Judge Kenneth M. Karas for further pre-trial proceedings. Including an appearance two weeks earlier before Magistrate Judge George A. Yanthis, it was the fourth pre-trial session in open court in regard to the civil action brought in Mr. Deskovic’s behalf by the law firm of Cochran, Neufeld and Scheck of New York City.
This latest, unscheduled, appearance was necessitated by a communication to Judge Karas from Attorney Stuart Kahan, representing
County of Westchester former Deputy Chief Medical Examiner Luis Roh, and former Westchester Assistant District Attorney George
Bolen, apparently wishing to make a motion to the Court. Judge Karas opened the session in his usual informal, but measured, fashion, telling the several attorneys representing numerous co-defendants, “Mr. Kahan said pretty please.”
Kahan acknowledged that he had a fundamental issue with respect to George Bolen’s absolute immunity. Karas went on, “I thought we covered this before. Bolen understood that absent evidence of... I understand that there may be a difference between what was said and what was done. How can there be absolute immunity?”
Attorney Kahan replied, “One of the areas I have a problem with is Bolen’s discussions with Roh.”
At that point, Attorney Jennifer Loren, representing Mr. Deskovic, and accompanied by Attorney Barry Scheck, asked, “Why isn’t that investigation?” Kahan came right back insisting it was trial preparation. Loren then stated, “On that point, I would refer to paragraphs
124 and 125.”
Judge Karas responded, “It seems to me that by the very things alleged Bolen would say No, no, no, this isn’t investigation, this is trial prep. But that’s not what is alleged here, and, we have to live with what’s alleged.” Karas went on, “The purpose of these pre-trial conferences is not to deal with motions that haven’t been made, but to avoid the waste of clients’ and lawyers’ time and money. A plaintiff doesn’t get to just use labels to avoid...”
Mr. Kahan came back with, “I did not find any cases within the Second Circuit, but from the Ninth Circuit.” Karas then brought up Jenkins v
City of New York, 1999 in which the judge found absolute prosecutorial immunity, even for perjurous conduct. Attorney Loren offered, “Insofar as there is a concern, even at the pleading stage, it is certainly true that the acts did go beyond the labels. The most inopposite case we are aware of is Buckley.
Judge Karas, apparently feeling the need to reclarify, and set the record straight, in a manner of speaking, declared, “The purpose of these
conferences is not to prevent the filing of motions.”
Loren then said, “To be fair, we are not attempting to prejudice his client’s rights.” (Referring to former ADA George Bolen.) Karas came back with, “He hasn’t said Well you know, what Bolen was doing was just trial prep.”
Loren then responded with, “To the extent that Mr. Kahan was indicating that he was contemplating other discussions with Dr. Roh, it
appears to be the case that there was additional conversation with other witnesses. There was an attempt to regroup and find another theory of the case.”
Karas then attempted an analogy, saying, “If in preparing a bank trial case a prosecutor sits down with all of the tellers.” Attorney Loren then said, “Bolen was Okay, I’ve got this bad information; now what do I do with it?” Karas then declared, “I’m not unsympathetic,
the facts here do not...” At that point, Barry Scheck, addressing a case from the Second Circuit cited by Karas, Jenkins v City of
New York, 1999, which supposedly supports the notion of absolute immunity for prosecutors under most conditions, observed, “The gravamen in that case sounds as though it was Suborning Perjury before the grand jury. We’re not even pleading gross perjury before the jury trial.”
At that point, Judge Karas addressed Stuart Kahan with, “You and I have had many cases together, and, we will have many more together.
You want to file a motion that’s schlock?”
Kahan quickly replied, “I’m not saying I want to.”
Karas then asked, “So when can you get it in?” Kahan replied, “October 17th.”
Mr. Kahan is attempting to suggest that his client, former Westchester Assistant District Attorney George Bolen had absolute immunity
with respect to his conduct in the Deskovic case because his activities in which he was conspiring with Dr. Luis Roh to come up with a
theory and back up paperwork that would overcome the fact that Jeffrey Deskovic’s DNA did not match the DNA found in the victim’s vagina, were activities that he chooses to label “trial preparation”.
Sam Israel Guilty Plea
The mood in the courtroom prior to the proceedings seemed almost celebratory. Samuel Israel III, who had faked a suicide off the Bear
Mountain Bridge to avoid serving a 20-year sentence in connection with a $450 million investment fraud, was expected to plead guilty for having absconded on June 9. He had expressed his willingness a few weeks ago to plead guilty but was kept from doing so, when he expressed to District Court Judge Kenneth M. Karas, that he was functioning at 60 to 70 percent of his competence because of his methadone withdrawal treatment from narcotic pain killers. Israel’s attorney, Barry Bohrer, immediately asked for a sidebar upon the opening of the hearing. The bench conference, which lasted about eight minutes, was a dialogue entirely between Bohrer and Judge Karas, as Israel remained seated at the Defense table.
Returning to the Defense table, Bohrer said, for the record, “As we indicated at the bench, I would suggest that it would be better to adjourn
the proceedings to another day, at which point we could reassess the situation, and at which time we would plead guilty.”
Judge Karas then said, “If the Government has no objection.” To which Assistant United States Attorney Sarah Krissoff responded, “The
Government has no objection.”
Karas then instructed her, “Ms. Krissoff, if you could see to it that Mr. Israel is getting the medical treatment he requires.” Krissoff acknowledged the request affirmatively.
The Judge then said, “It is certainly in the interest of justice to permit Mr. Israel to recover completely.” Upon emerging from the Courthouse, Attorney Bohrer briefly faced reporters. The Guardian inquired, “The last time you were in court you announced a rather accelerated medication reduction schedule. Is it possible that schedule was too optimistic?”
Attorney Bohrer responded, “That’s a possibility.”
SPECIAL COURT REPORT
“ADA Murphy’s Testimony Not Only Lacks Credibility,
It Flies In The Face Of Reason And Common Sense”
– Judge Rory J. Bellantoni
Westchester County Court, White Plains
Judge Rory J. Bellantoni Presiding
Nine months following an eight day 440.10 Evidentiary Hearing in the case of Richard DiGuglielmo, Judge Rory J. Bellantoni handed up a
long-awaited ruling last Thursday afternoon. In a 69-page comprehensive decision that took into account every word that was uttered
in the hearing as well as at the trial in 1997, Judge Bellantoni borrowed from one he called “The insightful and learned Dr. Martin Luther King, Jr.” who aptly stated, “Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutu-ality, tied in a single garment of destiny.
Whatever affects one directly, affects all indirectly.”He then declared, “Based upon the foregoing, Defendant’s motion to vacate his conviction is granted. As the principles of double jeopardy have attached to the charge of Intentional Murder, as well as to other counts in the indictment for which Defendant was found not guilty, Defendant cannot be re-tried for said crimes. Moreover, as the underlying facts of the trial record make clear, as discussed more fully above, the circumstances under which Defendant shot the victim in this case preclude a finding that the Defendant acted with Depraved Indifference, under any theory or precedent, including Register.
Accordingly, it is ordered that the People are precluded from retrying Defendant on the charge of Depraved Indifference Murder. It is further ordered that Defendant’s conviction is hereby vacated and Defendant is to be released forthwith. It is further ordered that there can be no
re-trial without a new indictment, which requires leave of the Court. Under the circumstances of this case, the People may not seek leave
to re-indict. Based upon the improper conduct of the police and the People, any re-trial in this matter would be irreparably tainted. The People should not benefit from their misconduct.”
Judge Rory J. Bellantoni’s decision and order brings down the curtain on 12 years of lies and prosecutorial misconduct; one of the more horriffic abuses of process and miscarriages of justice in the Office of the Westchester County District Attorney, under Jeanine Pirro, one of the most psychopathic, self-serving political creatures to ever occupy the position. At her instruction and behest, Assistant District Attorneys Patricia Murphy and Perry Perrone, in co conspiracy with the entire three-man Detective Bureau of the Dobbs Ferry Police Department, under the personal direction of Police Chief George Longworth, coerced, intimidated, and wore down the only three actual eyewitnesses to the 90 seconds of altercation initiated by Charles Campbell, ultimately wielding a metal baseball bat, and ended in his death by a shooting that was clearly in self-defense.
Pirro, who was seeking re-election as District Attorney, for reasons of self-promotion, and consistent with her confabulations, distortions, and lies for 12 years, turned a clear case of Justifiable Homicide, by reason of Self-Defense, into a “Bias Crime” because the 32-year-old amateur boxer and bodybuilder, who was swinging the metal baseball bat at Police Of-ficer Richard DiGuglielmo’s middleaged father’s head at the instant he was shot, happened to be Black.
The decision not only exposes the criminality and treachery employed by ADAs Patricia Murphy and Perry Perrone, prior to, and during the 1997 trial, but also the obfuscation, and contempt for the Court, practiced and shamefully displayed by ADAs Timothy Ward and Robert Sauer throughout the eight-day hearing.
Bellantoni cites the “win at any cost” attitude and all of the disrespectful and outrageous conduct Ward and Sauer engaged in throughout
the hearing. And, with respect to the Dobbs Ferry Police, he observes, “Indeed, the hearing evidence showed that the Dobbs Ferry Police treated certain eyewitnesses more like suspects than like witnesses.”
Speaking of ADA Patricia Mur-phy’s testimony before him at the hearing, Judge Bellantoni states, “ADA Murphy’s testimony not only
lacks credibility, it flies in the face of reason and common sense.” The Judge goes on to say, “What is further troubling is ADA Murphy’s lack of concern as to why Mr. Dillon first stated that Defendant acted in self-defense, and days later gave a contradictory statement, particularly since she was the lead, and most senior, Assistant District Attorney prosecuting the matter.”
After enumerating several instances of Patricia Murphy’s prosecutorial misconduct and lack of credibility before his Court, Judge Bellantoni
quotes from In re: Doe 801F. Supp. 478, 1992, declaring, “Prosecutors are shepherds of justice. When a government lawyer, with enormous resources at his or her disposal abuses power and ignores ethical standards, he or she not only undermines public trust, but in-flicts
damage beyond calculation to the System Of Justice. This alone compels the responsible and ethical exercise of power.”
Quite clearly, Patricia Murphy and Perry Perrone had neither ethics nor conscience in their prosecution of Police Officer Richard DiGuglielmo. Upon learning of Judge Bellantoni’s Decision and Order, Tony Castro also quoted Dr. Martin Luther King, Jr., declaring, “Justice may be a long time coming; but it’s never too late.”
Thursday, September 18, 2008
Wrongful Convictions Just
Keep Coming Out, Part 4
A few months ago, I began a series of articles entitled “Wrongful Convictions Just Keep Coming Out”, for the purpose of illustrating just how
wide spread the problem of wrongful convictions is, and how, indeed, the number of wrongful convictions we discover is just the ‘tip of the iceberg’. The purpose is to raise awareness about the issue and to let people know that it can happen to anyone at any time; and, further, to illustrate the urgent need for legislative reforms to prevent more innocent people from being wrongfully convicted. is article is the fourth in
Darryl Burton was wrongfully convicted of murder and served 24 years in prison in New Jersey before being cleared with the assistance of Centurion Ministries, a not-for-profit organization that works to free wrongfully convicted people. They clear people both by DNA, when it is available, and by other means, such as the discovery new evidence, or the uncovering of evidence that was withheld from defense attorneys, or identification recantations. The summary of Burton’s case is taken from e Innocence Project’s blog: “One of the alleged eyewitnesses was
a jailhouse snitch who testified in 2007 that he lied at Burton’s trial in exchange for sentence reductions. The other witness, who is now deceased, was at least a block away and could not have seen the shooter. In addition, Centurion uncovered two actual eyewitnesses from the crime scene who told police that Burton was not the shooter. Police ignored their testimony during the investigation.
Centurion’s investigation also pointed to another man, also deceased, who may have been the actual killer.” Despite these facts, Circuit Attorney
Jenifer Joyce’s assistant, Ed Postawko, who dropped the charges stated that “I’m not convinced an innocent man was convicted of the crime. I give deference to the jury that found him guilty beyond a reasonable doubt 24 years ago.” Given the above-mentioned facts, notwithstanding the prosecutor’s contrary statement, it seems obvious that he was innocent.
Robert McClendon served 17 years in prison for rape in Ohio before being proven innocent by DNA. He was wrongfully convicted based upon a
misidentification by his 10-year-old relative, who was the victim in the case. The judge referred to McClendon as a “wrongfully convicted person.” The facts of his case are taken from NBC News’ website: “Prosecutors said McClendon took a 10-year-old relative from her backyard, blindfolded her, drove her to a house and raped her. The victim reported the rape the next day and was taken to a hospital. McClendon, who denied raping the girl, was convicted in 1991 and sentenced to 15 years to life in prison. He was denied parole in 2007.
In McClendon’s case, authorities had long since lost or thrown away swabs from the victim’s medical exam -- typically the best evidence for testing rape cases -- but agreed to provide the lab with the girl’s underwear. Using new technology that was unavailable at the time of the crime, the lab found faint traces of semen that didn’t match McClendon’s DNA profile, the Innocence Project announced last month.” Upon his release a couple of weeks prior to the charges being thrown out, McClendon, also according to the NBC New’s website, said “I can’t think of anything
but being with family right now,” McClendon said just after his release. “I really can’t.” And his family could only think of being with him. One of McClendon’s sons was only 2 years old when his father was sent to prison. “For my father, to come home, it is truly a blessing and a miracle,” Kevin Banks said.
William Dillon spent 27 years in prison in Florida for a murder that DNA now shows he was innocent of. The facts of Dillon’s case are taken from
an article by Deanna Morey in the Orlando Weekly: “William Dillon has been imprisoned for 27 year for the vicious 1981 murder of James Dvorak [see “26 years,” Oct. 11, 2007]. Dvorak was bludgeoned, his lips were peeled off and he was left for dead in a wooded portion of Canova
Following a trial that could generously be described as a joke – a prosecution witness legally blind in one eye, a girlfriend who was sleeping with the
lead investigator in the case and changed her story multiple times, a lousy lawyer who was later disbarred, and a tracking dog and handler later determined to be frauds – Dillon was convicted of Dvorak’s murder and sentenced to life in prison. At trial, the proverbial smoking gun
was a bloodied yellow T-shirt bearing the phrase “Surf It” that prosecutors said was worn by the killer. As assistant state attorney Michael Hunt told Dillon’s jury, “Using this yellow ‘Surf It’ T-shirt we will confirm the defendant’s [presence] at the scene of the murder.” One problem: The blood on that shirt doesn’t belong to Dillon. According to a report released July 28, the Dallas DNA lab Orchid Cellmark extracted three DNA profiles from the shirt. Those profiles matched Dvorak and two others who have not been identified. (The samples are too degraded to check for
matches through the national DNA database.) They did not, however, match Dillon. At trial the prosecutors said that the blood on the T-shirt belongs to the killer. Continuing on with her article by Morey: adding the DNA exoneration to all the problems associated with his farce of a trial nearly three decades ago, and one has to wonder why he still sits in state prison.
It wouldn’t be the first time Brevard County prosecutors imprisoned a man who was later cleared by DNA evidence. In 2005, Wilton Dedge was released after serving 22 years in prison for a rape that DNA evidence proved he did not commit. Assistant state attorney Wayne Holmes handled that case as well as Dillon’s, and takes credit for freeing Dedge after DNA cleared him. Lawyers for the Innocence Project of Florida, which assisted both Dedge and Dillon, say that’s laughable. Even a er DNA evidence exonerated Dedge, they say, prosecutors fought his release.
Still, Holmes says that if the evidence convinced him of Dillon’s innocence, he would push for his release. But right now, the State Attorney’s Office isn’t admitting defeat; DNA be damned, so it isn’t entirely clear what evidentiary hurdles Dillon would have to clear to change Holmes’ mind.” Holmes points out that the defense chose only to test the shirt, not the cigarette butts, jeans and other samples that could contain Dillon’s DNA. He also suggests the shirt could have been contaminated – though at trial prosecutors argued that the killer’s DNA would be all over the shirt, since that person probably would have been sweating profusely while beating a man to death on a boiling August day.
“There were skin cells from two other people on an item that was recovered from the dumpster,” Holmes says. “It could have been exposed to numerous other people and cross-contaminated. What [the Innocence Project] is trying to say is this proves actual innocence. The
results are far from it.” How’s that for logical gymnastics? Prosecutors were all too happy to use this bloody T-shirt at trial as proof of Dillon’s
guilt, but now say the shirt and the DNA it contains don’t really matter. Innocence Project of Florida attorney Seth Miller says his group tested the shirt because it was the most important piece of evidence, and to test all of the evidence would be both costly and time consuming; Dillon would end up staying in prison even longer as the tests dragged out. He says additional testing is unnecessary, but he has no problem with prosecutors paying for more DNA tests.
“I think it’s troubling that whenever evidence presents itself, [prosecutors] twist and use it to prop up the conviction and preserve the conviction,” Miller says. “It’s unfortunate. They can argue [contamination] all they want, but if [other] people touched the shirt, it doesn’t remove the perpetrator’s DNA.” The circumstances surrounding that shirt have always been sketchy. Even though the state asserted at trial that it
tied Dillon to the crime scene, prosecutors knew that the blood on the shirt wasn’t a blood type match for either Dillon or Dvorak. They didn’t tell Dillon’s defense lawyer until after he was convicted. Dillon’s public defender, Mike Pirolo, will ask for a new trial, and hopes to have Dillon’s conviction tossed. “I anticipate the state will say something else,” Pirolo says. “They will say [Dillon’s] DNA was not on the shirt because it didn’t rub off. But they can’t say the shirt has nothing to do with it. I don’t think the state will lay down. I think they’ll fight it.” It
took months of wrangling between prosecutors and the defense even to get this far. Prosecutors resisted DNA testing at every turn. Ultimately a judge stepped in and approved the tests. “It’s clear this shirt was worn by the murderer. This should be the end of that,” Miller says. “We think these results should exonerate [Dillon]. But these are the same characters as in Dedge’s case, so we’re not going to hold our breath. But it should happen.” Meanwhile, Bill Dillon is still in prison for a crime that, in all likelihood, he didn’t commit. And the State Attorney’s Office seems OK with that.”
I will analyze what went wrong in order to emphasize the urgent need for legislative changes in order to shore up the cracks in the system through which wrongful convictions occur. In the Burton case, incentivized witnessing, which is when someone testifies in exchange for a benefit, often
a reduced sentence, was a factor. This has been the cause of wrongful convictions in 15% of the 220 DNA-proven exonerations, and in many more of the non-DNA exonerations. Misidentification, which caused wrongful convictions in 75% of the 220 DNA-proven wrongful convictions, also again rears its head. Sloppy police work, at best, and intentional misconduct at worst, which in the world of wrongful convictions falls under the heading of governmental misconduct, was certainly a factor.
The assistant prosecutor stating that he was not convinced of Burton’s innocence, seems like yet another example of a prosecutor not wanting to admit an error. In the McClendon case, misidentification was the cause of the wrongful conviction. I would also like to use this case to prove the point that just because a witness is young and therefore seen as less likely to lie, does not mean that they cannot be mistaken. Additionally, in other cases it has been proven that sometimes such witnesses do lie, for a wide range of reasons, not the least of which is being put up to it by parents or social service workers. Therefore child witnesses need to be given the same level of scrutiny as any other witness would be.
The case illustrates the need for a standardized evidence preservation system, as the hospital either lost or threw away the swabs. I would like to
laud the judge for referring to McClendon as a “wrongfully convicted person”. Often such acknowledgements either on the part of the judge or prosecutor are necessary for the formerly wrongfully convicted person to seek financial compensation. The theme of wrongfully convicted prisoners being denied parole also shows up in this case. Lastly, the human costs of wrongful conviction - the disruption in family life - is illustrated. I cannot imagine the impact of as on losing a father for all of his adolescence and nearly all of his teens. That loss can never be made up to either of them. Their loss should shock many parents of children.
Imagine, for a moment, being forcibly separated from your child based upon false allegations, and not returning until nearly two decades. In the Dillon case, as I sit and reflect about all of the things that occurred in his trial, if indeed that farce could even be considered a trial, I am speechless.
Given all of the above, anybody that believes that trials are always fair should be disabused of that notion. I believe that this case is a good argument for when cases that are reviewed, either by courts or anyone else, they should be reviewed without any deference to the jury verdict, instead being heavily scutinized.
Using that approach, it is more likely that errors would be caught. This case also is an example of judges simply rubber-stamp-denying appeals. How else could one explain all of Dillon’s appeals failing despite this horrible record? The idea of giving credence to an eyewitness who is legally blind, would be laughable if it didn’t have such serious implications for Dillon. As I see it, given that eyewitness misidentification is such a huge factor in wrongful convictions, even when the witness does not have such impairments, it should not be allowed when one has an ailment which
affects vision. The lead investigator sleeping with the girlfriend was highly improper, and, because it provided the investigator with a potential
motive to want to send Dillon to prison, the entire case becomes questionable. Thus was “governmental misconduct” a factor in this case. Bad
lawyering, which the poor typically receive from public defenders, was a contributing factor as well.
We also see the theme of prosecutors not wanting to admit when they have made a mistake, twisting evidence any way they can to support their theory, also occurring here. Prosecutor Holmes’ trying to take credit in the Wilton Dedge case, in which Dedge served 22 years, was merely a bald-faced lie.
The documentary “After Innocence” which shows the struggles of seven men to reintegrate into society after spending long years in prison for
crimes they were later proven innocent of, shows the court proceedings in the Dedge case, and it is right there on tape, for all of the world to see; Holmes fighting mightily to keep Dedge in prison at all costs, even when DNA test results of hairs showed it didn’t match him. Prior to that even happening, the state fought for three years on procedural grounds in order to prevent Dedge from even getting the testing.
Catherine Wilson, Bureau Chief
Dealing in Drugs
In a few weeks, local recipients of Medicare will start to receive numerous solicitations in the mail from prescription drug insurance companies, all vying for their business. These recipients, most of them seniors, have until November 15 to decide which of those companies will provide coverage for their medications for the upcoming year. is annual dance is all part of Congress’ voluntary “Part D” prescription program for Medicare
recipients which went into effect in 2006.
The purpose of this plan was to make medications more affordable for the elderly. Before Part D was approved, many United States residents
resorted to importing their medicines from Canada where the drugs often cost up to 80% less. Medicare Part D was established to cover approximately 50% of the recipient’s prescription drug costs. But according to Medicare analysts, the ten largest pharmaceutical companies increased their profits by over eight billion dollars, to approximately $40 billion in total, in the first six months after the implementation
of this program alone, January – June 2006.
And the program has not been a panacea for its recipients – massive confusion and price discrepancies and programs exist. According to Medicare, in 2008 there were 1,824 different insurance companies competing for customers: “The number of available plans varied by region. The lowest was 27, in Alaska, and the highest was 63, in Pennsylvania & West Virginia.” But Medicare claims that “this allows participants to choose a plan that best meets their individual needs. Plans can choose to cover different drugs, or classes of drugs, at various co-pays, or choose not to cover some drugs at all.” at last part does not meet a patient’s needs!
Such a maze of programs has led to confusion among local seniors. The Guardian recently spoke with one such senior, Lucille, about issues and concerns she had over her prescription costs and changes in her insurance coverage. One of Lucille’s concerns was the varying prices she paid for the same medications. For 11 months in 2006, Lucille paid a modest amount for each of her prescriptions. But in late November and throughout December, her costs skyrocketed – a drug that once cost her $28 was now $166, one that was $66 was now $141, despite the fact that she was receiving the exact same prescriptions in the exact same dosages from the exact same pharmacist.
The source of Lucille’s problem in late 2006? She had fallen into Part D’s famous “donut hole” – the part of the program where the recipient
must cover 100% of the total cost of their medications. Part D was designed to help most seniors with average medications, and those seniors with catastrophic needs. But for those who fall into the middle, enough drugs to rack up significant expenses, but not enough to be considered catastrophic, they end up paying $1,540 annually in addition to the initial deductible and the monthly premiums for this insurance. Medicare
describes this gap in the Part D insurance program, as follows: “The standard program allows for payment of a $275 deductible. e beneficiary then pays 25% of the cost of a covered Part D prescription drug up to an initial coverage limit of $2,510.
Once the initial coverage limit is reached, the beneficiary is subject to another deductible, known officially as the Coverage Gap but referred
to more commonly as the “Donut Hole,” in which they must pay the full cost of medicine.
When total out-of-pocket expenses on formulary drugs for the year, including the deductible and initial coinsurance, reach $4050, the
beneficiary then reaches catastrophic coverage, in which he or she pays $2.25 for a generic or preferred drug and $5.65 for other drugs, or 5% coinsurance, whichever is greater.”
The confusion surrounding this “donut hole” is not the only problem seniors face with Part D insurance programs. The Guardian spoke
with Dan Molino, of Trotta’s Pharmacy in Harrison, about how the Part D program affects his customers. “All of these plans restrict certain
drugs and require prior authorizations from a doctor before those medications can be covered,” Molino said. “The biggest problem is when seniors change their plans each year looking for the lowest cost plan. They don’t realize they need to get their medications reauthorized
with the new insurance company before they will be covered.” Many seniors end up paying for necessary medications out-of-pocket while
waiting for authorization. Those seniors then have to personally file claims with the insurance company for reimbursement, if any, of their
out-of-pocket costs. One unapproved medication can easily eliminate all the ‘savings’ of the lower cost program. Molino recommends
that seniors find the plan best suited to their needs and stick with it to avoid such headaches.
The current economy is also affecting the use of prescriptions for the elderly. “Many are cutting their tablets in half, or they are skipping
days to save costs,” Molino noted. The insurance companies are also cutting back. “There are certain contracts that we are not allowed to fill,” Molino acknowledged, “because the insurance company has reached the maximum number of patients that they will accept in the area. It’s rare, but sometimes we have to turn people away because their insurance carrier will not allow us to accept them.” Reimbursement rates also affect not only how much a patient will pay but also which pharmacist will fill their prescription. “There is a huge range in reimbursements for each medication among the insurance companies. Some have reimbursement rates so low that I cannot afford to accept the insurance – it won’t cover my overhead,” Molino noted.
Large pharmacy chains have an advantage that Trotta’s does not in this area. “Bigger stores can use ‘front-of-store’ sales to offset what they lose on prescriptions,” Molino admitted. “Those stores make you walk through their entire store to get to the pharmacy, hoping you’ll spend money along the way”. Westchester’s local, independent pharmacies do have one advantage over the large chains and stores –
personal service. “We deliver medications to your door,” Molino noted. “Many Part D plans encourage their enrollees to participate in a mail-order prescription service. But when that service misses a delivery or sends the wrong medication, that’s when we get those patients in our pharmacy, crying. And there’s very little we can do for them since we don’t have the original prescription.”
One elderly local woman, “Mary” (named changed), was in severe pain after shattering her kneecap in a fall. The mail order service lost the renewal order for her medications. When Mary realized she never received the renewal, she was down to a few pills – at the beginning
of a holiday weekend with no one available at the mail order’s customer service department until the following Monday morning.
She spent the next two nights crying in agony in her daughter’s arms, trying to get relief from useless over the- counter medications. “We see
a lot of those cases,” Molino admitted. “A senior might save $10 on a three-month supply of a mail order medication, but is it worth it when a supply goes missing?” The distribution channels of a mail order service are also a concern. “Image anyone ordering from a company down
south lately?” Molino asked. “Did their diabetes medication get delayed because of hurricanes?
Was it left sitting in extreme heat or humidity in the back of a truck jeopardizing the viability of the drug? If a patient has their prescriptions
delivered from us, they don’t have those worries”. Unlike mail-order drug companies, local pharmacies have pharmacists on staff to speak with patients and advise them. According to Jeffrey Hammond, of the New York State Department of Health, “All prescriptions are entered by the pharmacist into a database. All of the patient’s other prescriptions will appear, along with warnings of conflicts and side-effects. The main purpose of the Health Department is to make sure that we keep unsafe medications out of your home. That means not only checking for illegal prescription drugs, but also for medications that can harm an individual patient – drugs that would not react well with each other, for example.”
Illegal prescription drugs are becoming a growing cause for concern nationwide. The New York State Department of Health has fought back by mandating an official physician pad program where each doctor in the state is assigned a specific sequentially numbered set of prescription pads. According to Hammond, these new prescription pads have the following security devices to protect the patient:
• Each prescription is uniform with standard guidelines – i.e., information is found in the same place on each prescription, eliminating
• Each prescription sheet has a unique, sequential number identifying that prescription;
• Each prescription sheet has an anti-fraud device – a small area that will change color when pressed with a thumbprint. If a pharmacist is
concerned that a prescription may be fraudulent, he/she can test this area;
• Each physician is assigned uniquely numbered pads – if a pad or individual prescription sheet is stolen, a warning for those prescription
numbers will appear in the pharmacist’s database;
• Each prescription has a water mark making them difficult to counterfeit;
• Each prescription sheet has anti-copying protection – the sheet will copy completely black so duplicates of the physician’s signature and
information cannot be obtained.
New York State is incorporating these measures not only to eliminate the black market for illegal prescriptions, but also to control costs and curb duplicate prescriptions issued. “Some patients will ‘doctor shop,’” Hammond noted. “They will get one pain medication from one doctor then go to another doctor across town with the same symptoms to get the same pain medication”. The taxpayer and insurance companies foot the bill while the patient sells the prescriptions in black market. The new prescription pad program, along with the national databases pharmacists use, quickly alerts the pharmacist when a patient is attempting to fill multiple prescriptions for the same medication.
While keeping the costs of prescriptions under control still remains a priority for most Medicare recipients, the Part D program is “better than where we were five years ago,” Molino noted. “Then we had nothing to help patients alleviate the high costs of their medications”.
However, seniors still continue to face another huge nightmare – the insurance maze. “Medicare and Medicaid claims are so complicated
that only the most experienced medical billers can handle them,” ‘Claire’, a local medical biller, told The Guardian.
Insurance claims go through a series of steps. “Each doctor’s office will set up a billing system with the codes for the insurance company,”
Claire said. “After a doctor has seen a patient, he/she will circle the code for that patient. Those codes are then entered into a computer and
finally, they are grouped and sent to the insurance company. The doctor then receives a check back from the insurance company, which is less than the cost of the service, so he/ she has to write off the balance.”
Since most doctors cannot afford to operate as sole practitioners any more, they are joining forces and handing over their billing to outside medical billing companies. “That poses another problem for the doctors,” Claire noted. “The services have a lot of work so they don’t
pay complete attention to claims.
They don’t have time to reconcile accounts or to review claims to see if a wrong code was entered. If a claim is rejected by the insurance
company, there is a narrow window of time to appeal. If the appeal is late, the money is lost and the entire amount has to be written off the
doctor’s account. The billing companies charge 8% of the claims they handle so some doctors opt to enter codes themselves to save money. To try to avoid lost money on claims, doctors try to have patients pay up front, but a doctor cannot refuse a patient who cannot pay without going through a lengthy process.”The result of this insurance nightmare? “Some doctors are now refusing to take insurance at all and will only accept cash patients,” Claire admitted. “A patient who needs surgery has to work out a payment plan with those doctors to get the treatment they need.”
The same potential insurance nightmare is looming for pharmacists. Trotta’s Pharmacy admitted that there are already some insurance
programs that they simply cannot afford to accept because their reimbursement rates are too low. According to the New York State
Department of Health’s Hammond, “Pharmacists typically negotiate their own rates with each insurance company.”That gives larger pharmacy chains an advantage over local pharmacies since they are ordering in larger quantities and can dedicate manpower to the negotiations and spend time haggling over denied reimbursements and claims. In addition, the insurance companies profit from the time and energy spent by the local pharmacists in processing prescriptions.
“I enter all of a patient’s personal information, such as name and address, as well as their prescriptions and medical information into the
database,” Molino said. “Then the insurance company will take that information and turn around and try to take my customer away by
offering them a small discount for using their mail order service instead!”
According to Molino, many of the prescription mail order forms are owned by the drug companies themselves. “So they are profiting
off of both ends,” Molino noted. Fortunately there is some help for local residents like Lucille in all this mess. The Westchester County
Department of Seniors manages a state program called EPIC (Elderly Pharmaceutical Insurance Coverage). According to Hammond, “This
program covers many drugs not covered by Medicare. It also helps pay for the deductible on the Part D plans. If EPIC and Part D plan have
different costs for a particular drug, the pharmacist will give the patient the greater discount.” For seniors on very low incomes, New York
State will offset the monthly premiums of this program. To be eligible for EPIC a senior must have an income of less than $35,000 (single)
or $50,000 (married). Local seniors can contact the County Office at 914-813-6300 to apply for EPIC.
The biggest concern for both our local and state health departments is the safety of our residents. “We don’t want people self-prescribing,”
Hammond admitted. Molino also was concerned about seniors looking to save money by obtaining their medications from unsafe sources
– such as counterfeit prescription drugs from third world countries being sold on the internet. “New York State’s Bureau of Narcotics is actively investigating any suspicious prescription drugs,” Hammond noted.
The best bets for seniors when facing this winter’s annual rush of Part D insurance renewals? Know what medications you need and see
which plans cover them. Medicare’s offices and website can assist with this. Try not to change plans to avoid reauthorizations of medications. Find a local pharmacist you like and trust and ask what insurance plans they accept and recommend.
Order all medications through one pharmacy or chain to have all of your personal information in one database for comparisons with new drugs, and less margin for error. Know what your medications should look like and check them before leaving the pharmacy. Do not
order critical prescriptions from mail order companies if possible. And, most importantly according to Molino: “Do not be afraid to ask
questions. It’s your health and our job to help you.”
Last Thursday Morning while driving to The Guardian’s White Plains offices, and listening to live coverage of events at Ground Zero, I glanced at my dashboard clock, which read, “8:46am”, just as the names of all 2751 victims of the World Trade Center disaster had begun to be read,
and all the memories of that day came flooding back.
Seven years seemed so long ago, and yet so vivid; still so painful. At precisely 8:46 that fateful morning, Tony Castro and I were getting up from our table at the Starbuck’s in Larchmont, having stopped for coffee following two hours of greeting commuters at the railroad station. We, together with campaign workers, had given out more than 1700 palm cards that morning to a very strong reception. Tony was running for District Attorney against three-term incumbent Jeanine Pirro.
It was less than two months from Election Day, and we had less than $50,000 in the bank. She had already raised more than $1 million. But
we were out there, doing a different railroad station every morning at 6:30am, and had already handed out more than 40,000 palm cards.
Leaving Starbuck’s, we drove, each in our own car, to Democratic Headquarters in White Plains, each oblivious to the fact that a huge passenger
jet had just slammed into one of the towers of the World Trade Center, oblivious as well to the fact that our lives, and the lives of every American, had just been forcibly changed forever.
Just six weeks earlier, Jeanine Pirro, in a fit of anger, having seen Tony at the Arab-American Festival in Yonkers, had screamed from the stage,
“And remember, I am one hundred percent like you; not fifty percent, but one hundred percent.” She would not be touting her Lebanese roots again. Instead, she would avoid every opportunity to debate Tony Castro.
When she ultimately ran out of excuses, she fled to Galveston, Texas in a breakaway pursuit of Robert Durst; harassing him and ultimately
providing him with the perfect cover story, as well as an acquittal, in a gruesome murder and chopping up of boarding house resident Morris Black.
We weren’t at Democratic Headquarters very long when it occurred, spontaneously to each of us, or so we thought, that there would be many
injured persons in need of blood. It was nearly 10am when we walked into the lobby of the White Plains Hospital. There were already more
than 150 people lined up, waiting to give their blood. Rocco D’Agostino, a fellow Pace Law graduate, with whom I had just shared an office, my first year out of law school, was there, as were many other familiar faces. Little did any of us realize that blood couldn’t be the answer.
We left the hospital after doing our duty, returning to Democratic Headquarters. The only television station we were able to pull in was British
Broadcasting. We watched, stunned, as both towers continued to burn, knowing that each tower was damaged beyond reclamation, but
totally unprepared to see them, one after the other, come crashing down in a cloud of dust and twisted metal.
With the collapse of each came the sickening knowledge that some enemy of freedom, some cowardly group, had succeeded in bringing
us to our knees. The thought “what’s next” gripped us as reports of the Pentagon horror filtered in. We could only image how many innocent men
and women, perhaps people we knew, or had given a palm card to, as they boarded the train, had died. Suddenly, a sense of the magnitude of the events we were witnessing began to register. None of what Tony and I had had on our agenda, either jointly or individually, had any relevance, made any sense; certainly not for the balance of that day, nor for the forseeable, immediate future.
There was, of course, the issue of preoccupation, nationally, and worldwide, with the horrific events in New York, in Washington and in a field in
Pennsylvania. And, perhaps as compellingly, there would be the day-today immediate impact on our lives locally; the question of what activity
was appropriate, especially for those of us so caught up in the momentum and thrust of a political campaign brought to a sudden halt, yet full of
It would take major league baseball to signal the resumption of normal American activity, whatever that was, or would come to be. However,
to this moment, those of us, those who are true down-state New Yorkers, know our lives have never been the same since 9/11, nor can they
ever truly be.
In Our Opinion...
The Justice Department Doing What It Ought To Do
We were very pleased to receive a press release last Monday from the United States Department of Justice entitled, “United States Attorneys Available To Receive Election Complaints.” The notice, dated September 8, 2008, just one day in advance of the Primary Elections, although stating, “United States Attorneys said that their Offices will be available to receive complaints on Tuesday, September 9, 2008,” was actually alerting voters to their availability for the “upcoming General Elections in New York City and other counties,” in the Southern and Eastern Districts of New York.
The release stated, in relevant part, “The ability of federal law enforcement authorities to detect and eliminate improper restrictions on voting rights and to prosecute election fraud depends, to a large extent, on the watchfulness and cooperation of the voters.” The Justice Department
went on to urge anyone who has “been asked to participate in illegal election practices, or has been the subject of such practices, to make that information known promptly to the FBI, or the United States Attorney’s Office.”
Election fraud is ugly, and can manifest in a number of ways. Few events are more discouraging to citizen participation in the democratic process than election fraud. On the national level, the outcomes in the State of Florida in 2000, and the State of Ohio in the 2004 presidential contests,
went a long way to undermine voter confidence in the veracity of the process. The use of voting devices susceptible to tampering and error without verifiable paper backup, caused justifiable skepticism and doubt twice regarding George W. Bush’s election as President.
Closer to home, right here in Westchester, a number of recent countywide and State Senate races, over more than a decade, have raised serious concerns. The 35th State Senatorial seat, held for 20 years by Nick Spano, Republican of Yonkers, for no fewer than four elections, was
such a troubled contest.
In 2000, Spano’s organization, facing a tough challenge from Democratic County Legislator Tom Abinanti, produced 166 fraudulent Green Party Primary Ballots in a bogus effort to capture another line. Two years later, in 2002, Spano, with his State Supreme Court connections, managed to keep his Hispanic Democratic opponent tied up and off the ballot almost to Election Day.
Again, in 2004, then-County Legislator Andrea Stewart-Cousins actually defeated Spano by 355 votes, but was literally screwed out of her victory by both Democrats and Republicans acting in conspiracy, individuals such as Democratic Election Commissioner Reggie LaFayette, working hand-in-hand with Republican State Supreme Court Appellate Division Justice Robert Spolzino, and numerous deputy election commissioners under the control of Deputy County Executive Larry Schwartz. Before the massive fraud was completed, it had grown into the longest election dispute in New York State history, finally ending in Stewart-Cousins’ defeat in the first week of February.
By that time, Jeanine Pirro, Joe Bruno, Nassau Supreme Court Judge Ira Warshawsky, and six high-powered election lawyers had been busy at work for more than three months, resulting in Nick Spano’s cynical 18-vote victory; Nick, his two parents, and his 15 siblings. In 2006, The Guardian stepped in, securing and publishing a request, first from Andrea, and then from Nick, calling upon the Justice Department to send in “monitors and marshals” to oversee the rematch. The Justice Department honored those requests, and nobody was willing to risk federal prison. Andrea won by some 2,000 votes.
In addition to Nick, Andy Spano, Jeanine Pirro, Lenny Spano, and Janet DiFiore, to name but a few recent beneficiaries, have all been installed through “engineered” and/or “fixed” election contests; some more blatantly fraudulent and criminal than others. Given that ugly, recent history, and mindful of the fact that nothing is more essential to the survival of our democratic institutions than free and unfettered elections, We take some measure of comfort and confidence from the Justice Department’s announcement, and, We intend to publish their contact information as the General Election draws nearer.
Our Readers Respond...
Youngster Seeks Help From Senator Clinton
Dear Senator Hillary Clinton:
My name is Corey Rist. I am almost 12 years old. I am going into the 7th grade in September at Blue Mountain Middle School. I live in upper Westchester with my Dad for 10 years. My mother had abandoned me when I was two years old. Through the years there were always problems with my mother’s relationship because of the way she is. These last few years it has grown worse because I have gotten older and more mature, so I understand things that my mother does better. These last three years, after giving my mother so many chances to be my mom, after doing all the horrible things she’s done to me, I’ve finally chosen to give up on her. I want nothing more to do with her.
My Dad takes my wishes to Family Court in White Plains to stop my visitation with my mother. During the two years of my Dad being in court over this, the Judge has changed visitation many times, all because of her right as my mother. None of it ended up working out. After I told the court over and over that I want nothing to do with my mother, the judge still makes me have visitation. The court always worries about my mother’s rights, what about mine? Don’t I have any rights? After everything that happened why do I have to be forced to see her?
I learned about the Declaration of Independence last year and it says, “All man is created equal, and we have the right of life, liberty, and pursuit of happiness.” Why do I feel like I’m not being treated equal? I can’t pursuit my happiness while the court keeps allowing my mother to make my life miserable! Where’s my right? I feel like the court acts like my right don’t matter.
I ask you as my neighbor of Westchester County, my Senator of New York State, to help me with my right to be heard even though I am a child.
Thank you for taking your time to listen to my situation.
Corey Rist, Verplanck
Editor’s Note: Corey’s visitation concerns are in the hands of Westchester County Family Court Judge David Klein.
Needs Of Disabled Not A Partisan Political Issue
Politics aside, the recent statement by Governor Sarah Palin about her promise to be a special needs advocate in the White House brings heightened interest in this campaign season for both me and my fellow disability advocates.
Working to ensure an enriched quality of life for those with special needs should not be a partisan political issue, and disability advocacy should not be divided by party lines. No matter who wins the presidential election, I’m encouraged that there seems to be renewed interest in highlighting
the needs of individuals with disabilities and promoting the community resources that are available to them. The challenge now before us is to transform a presidential campaign sound bite into a community call to action that rallies support for individuals with disabilities.
Bernard A. Krooks, Esq.
Littman Krooks LLP
Special Needs Alliance