Wednesday, September 30, 2009

Dismantling the Prisonhouse of Nations: A Socialist Prison Reform Proposal (SPRP)

by Richard D. Vogel
The USA: Prisonhouse of Nations

The United States deserves the title, the Prisonhouse of Nations:1

•The US imprisons more of its citizens than any nation in the world. As of midyear 2008, over 2.3 million US citizens were behind bars and the prison population continues to expand as a result of the growing inequality and increasing marginalization of working people across the nation.

•The US is also a world leader in executing its citizens, following only the repressive political regimes of China, Iran, and Saudi Arabia in the number of executions in 2008. The US and Japan are the only states in the developed world that continue to impose capital punishment on their citizens.

Both of these repressive social practices -- mass incarceration and the continuing use of the death penalty -- are direct results of the reactionary US prison policies that have been in effect for the last 30 years. This Socialist Prison Reform Proposal (SPRP) provides a starting point to reverse these trends of political repression and secure justice for working people in the US. The following analysis of incarceration and capital punishment establishes the credibility and urgency of the Five Strategic Objectivesof the SPRP set forth below.

Capitalism and Incarceration

Prisons in the USA have three central functions: two overt and one covert. The overt functions are to punish criminal offenders for their illegal acts and to protect the community from dangerous individuals. The covert function is to serve as warehouses for superfluous elements of the working class. This covert function, which has resulted in mass incarceration in the USA today, is the primary target of the SPRP.

Chart 1, based on US Department of Justice (USDOJ) data, summarizes the history of incarceration in modern America.

The incarceration rate in chart 1 is the number of prisoners per 100,000 population of the nation at large, a standard measure of incarceration that allows for comparisons across time.

It is obvious from chart 1 that the history of incarceration in modern America can be divided into two distinct periods: the pre-1980 era of oscillating imprisonment rates and the contemporary period of explosive prison population growth. Examining the two eras separately highlights how the function of the US prison system has changed in modern times.

Chart 1a reveals the details of the relationship between capitalism and incarceration during the pre-1980 period.

The covert economic function of the US prison system (warehousing the unemployed) is clearly evident in the pre-1980 period. A close look at the incarceration trend in chart 1a reveals a dramatic rise in imprisonment rates during the period of the Great Depression (1929-1939) when the warehousing function of US prisons became firmly established; a lesser, but significant, increase throughout the protracted recession of the late 1950s and early 1960s; and another dramatic upsurge in incarceration following the Vietnam War. By 1979, the incarceration rate in the US (137.3 per 100,000) had surpassed the highest rate of the Great Depression (137.1 in 1939).

Chart 1a also records significant decreases in imprisonment rates during the peak years of World War II (dropping to 99.7 per 100,000 in 1946) and even lower during the Vietnam War (94.3 per 100,000 in 1968), when manpower demands in the US were at all-time highs because of war mobilization.

The relationship between capitalism and incarceration changed fundamentally in the 1980s.

Mass Incarceration:
the Triumph of Neoconservative Prison Policy

Chart 1b tracks the explosive growth of incarceration in the USA under the neoconservative prison policy instituted in the 1980s.

Beginning at a level above the highest point of the Great Depression (139 per 100,000in 1980), the US incarceration rate grew to 509 per 100,000 by midyear 2008 (a 266 percent overall increase) and now stands at the highest rate of any nation in the modern world. In view of the growing trends of economic inequality and marginalization and without meaningful reform of the US criminal justice system, incarceration rates in the US are likely to continue to rise even higher.

The neoconservative policy of mass incarceration in the USA has also produced the largest prison infrastructure in the world, numbering 1,668 state and federal facilities in the year 2000. Over 50% of these structures were built under neoconservative prison policy in the last two decades of the 20th century (Census of State and Federal Correctional Facilities, 2000).

Despite the record size of the US prison infrastructure, a crisis of prison overcrowding is brewing. The State of California, with the nation's largest prison system, is currently under a Federal court order to reduce its prisoner population by one-third because of the state's financial inability to provide adequate healthcare for inmates. State prison systems nationwide are facing similar crises.

The last major factor to take into consideration for understanding the US policy of mass incarceration is the striking variation of imprisonment rates between regions of the nation.

The Southern Prison Belt

Regional variations of incarceration rates in the US are illustrated in map 1.

The top 20 states, ranked by incarceration rates, are shaded on map 1. All 20 states imprison their citizens at rates well above the national average of 676 per 100,000. However it is the top 10 that are of special significance to understanding the phenomenon of mass incarceration in the US because it is their extremely high rates of imprisonment that inflate the national average. These top 10 states, with rates from the high of 1,138 per 100,000 in Louisiana to 808 per 100,000 in Arizona, constitute a Prison Belt that extends across the southern US.

The political significance of the Southern Prison Belt, which coincides with the stronghold of neoconservatism in the US, will become clear in the analysis of capital punishment that follows.

A Note on the Incarceration of the Black Working Class

Although all working-class people have been subjected to increased political repression, including incarceration, during the last 30 years, the brunt of the assault has fallen on the Black community. Official USDOJ statistics reveal the degree of racial disparity in incarceration in the US. The midyear 2008 prison census reported that there were 4,777 Black male inmates in state and federal prisons and local jails per 100,000 Black males compared to 1,760 Hispanic male inmates per 100,000 Hispanic males and 727 white male inmates per 100,000 white males.

The future for the Black working class in the US under neoconservative prison policy is bleaker than their current predicament. In an in-depth 2003 study, the USDOJ reported that in 2001 16.6% of all adult Black men in the US had spent time in prison compared to 2.6% for white males and predicted that the lifetime chances of going to prison for men born in 2001 would increase to the disastrous level of 32.2% for Black males and more than double to 5.9% for white males ("The Prevalence of Imprisonment in the U.S. Population, 1974-2001," Bureau of Justice Statistics).

Examining similar racial and regional disparities in the imposition of the death penalty discloses the political link between mass incarceration and capital punishment in the US.

Capital Punishment

The brutal history of repression in the US is nowhere more apparent than in the issue of capital punishment. Between 1930, the first year for which reliable death penalty statistics are available, and 1967, the last year of killing before a short-lived national moratorium on executions, 3,859 persons were executed under civil (non-military) authority in the US. Of this total, 54 percent of all persons put to death in the nation were Black citizens and 61 percent of all executions took place in southern US states.

Chart 2 offers a graphic overview of the use of capital punishment in the US since the middle of the 20th century.

Chart 2 presents the number of executions of citizens per year as reported by the USDOJ and analyzed in detail by the Death Penalty Information Center.

Although the total number of executions in the US is far overshadowed by the rate of mass incarceration, the state killing of poor and powerless citizens must be seen as a critical political issue -- the retention of capital punishment in the US symbolizes the willingness of the neoconservative wing of the ruling class to impose the death penalty to maintain the social order that serves their interests.

The modern history of the death penalty depicted in chart 2 shows that the total number of executions in the US declined steadily during the late 1950s and early 1960s, ceased altogether under a legal suspension of capital punishment that lasted from 1968 to 1976, and, paralleling the trend of mass incarceration, skyrocketed in the 1980s and 1990s. In the peak year of 1999, the number of executions surpassed the high number of state killings in the mid-1950s. However, chart 2 shows that, unlike incarceration rates that are continuing to rise, the number of executions has declined steadily since the beginning of the 21st century as jurors and the public at large have begun to question the practice of state killing.

The secondary trend depicted in chart 2 shows that most prisoners in modern America have been executed in southern US states which account for only about 35% of the US population. While it is readily apparent in chart 2 that the trend of executions in the southern states determines the US total execution rate, the chart also illustrates a significant change in that historical trend: since the restoration of the death penalty in 1976, the southern states proportion of all executions has risen to 81% of the national total compared to 61% for the period before the national moratorium on capital punishment. In other words, more US executions take place in southern states than ever before.

Like the policy of mass incarceration, the imposition of the death penalty falls heaviest on the Black working class -- the racial disparity in executions was 54% Black in the pre-moratorium period and 35% of the total since the death penalty was reinstated despite the fact that Black Americans consistently hovers around 12% of the population.

A close look at the battle over capital punishment in the US at mid-century shows that it was a defining political struggle that set the stage for the escalation of executions under neoconservative rule during the 1980s and 1990s.

The Mid-20th Century Movement to
Abolish Capital Punishment in the US

The movement to abolish capital punishment in the mid-20th century was an integral part of the civil rights struggle in the US. The abolition initiative was spearheaded by the NAACP Legal Defense Fund (LDF), a dedicated group of civil rights lawyers that mounted an assault on the constitutionality of capital punishment. LDF efforts led to the landmark decision by the US Supreme Court in Furman v. Georgia (1972) that ruled that the imposition of the death penalty in the cases before the court (Furman v. Georgia, Jackson V. Georgia, and Branch v. Texas) had been arbitrary and capricious and therefore constituted "cruel and unusual punishment" in violation of the Eighth Amendment and the due process guarantee of the Fourteenth. A national moratorium on executions ensued.

Southern states scrambled to reinstate the death penalty by rewriting their capital punishment laws to meet Supreme Court standards of due process. The effort, led by the states of Georgia, Texas, and Florida and backed by neoconservative forces from southern California and neocons in the federal government, was successful. In 1976 the US Supreme Court accepted changes in state criminal law and reaffirmed the constitutionality of the death penalty in the case of Gregg V. Georgia.

The resumption of state killing after the Gregg decision was restrained, and for a short time it looked like the US might join the rest of the western world in shunning capital punishment. Executions resumed in 1977, but during the first six years after the restoration of the death penalty, only six prisoners (three in the South) were executed. However, as neoconservative Republicans consolidated their hold on state power, government-sanctioned killing escalated sharply, peaking during the 1990s, the heyday of neocon rule.

The Restoration of Capital Punishment in the USA --
Another Neocon Victory

Map 2 tallies executions in the US since the restoration of capital punishment in 1976.

The overlap between maps 1 and 2 is striking -- the states that execute the most tend to be located in the Southern Prison Belt,2 illustrating the correspondence between the use of capital punishment and the adoption of mass incarceration prison policies in the southern US, the seat of neoconservative Republican political power. A closer examination of death penalty practices in Texas, Oklahoma, and Virginia, the three states that have accounted for 68% of all executions in the southern states since 1976 and 56% of all executions in the nation during the same period, reveals the prime mover of capital punishment in the US -- neoconservative enthusiasm for state sponsored killing.

Death Penalty Central

The trends of executions in the states that have killed the most prisoners in modern US history expose the deadly connection between the imposition of the death penalty and neocon rule.

Chart 3 documents the trends of executions in Texas, Oklahoma, and Virginia.

The State of Texas, which has accounted for 69% of all executions in the southern states since 1976 and 39% of all executions in the nation during the same period, must be recognized as Death Penalty Central -- no other state even comes close. The spike in executions in Texas occurred during the governorship of George W. Bush who signed the death warrants of 151 men and 1 woman during his term as governor of the state (1995-2000) before he moved on to the office of President of the US. Executions in Texas are continuing regularly under the governorship of James Richard (Rick) Perry, Bush's neoconservative successor, who presided over his 200th execution in June of 2009, exceeding the body count of his predecessor. With a current execution tally of 440, a death row population of 358, and continuing neoconservative rule, it is probable that Texas will retain the title of Death Penalty Central of the US.

The number of executions in the states of Oklahoma and Virginia, though not approaching the level of state killing in Texas, clearly represent a second tier of executions. The time overlap of the trends in the three states indicates common ground.

The trend of executions in Oklahoma reflects the same neoconservative commitment to the death penalty that Bush demonstrated and Perry is maintaining in Texas. Chart 3 shows that only three executions took place in Oklahoma in the 18-year period between the resumption of capital punishment and the beginning of the governorship of Frank Keating (1995 to 2003), a neoconservative Republican who served in high positions in both the Reagan and George H.W. Bush administrations before becoming governor. State killing accelerated and spiked under Keating and dropped off immediately after he left office.

Chart 3 also tracks the parallel trend of executions under neocon Republicans in the State of Virginia. Governors of Virginia are restricted to a single term, but Republicans George F. Allen and James (Jim) Gilmore III, who served consecutive terms (1994-1998 and 1998-2002), presided over 63% of the executions that have occurred in modern Virginia, establishing a neocon legacy of death similar to those of Texas and Oklahoma. As chart 3 illustrates, executions dropped dramatically after Gilmore left office.

The third tier execution states of Missouri and Florida also deserve attention. Missouri did not resume executions after the moratorium until the governorship of neocon Republican John Ashcroft, who later served as Attorney General under George H. Bush, and Florida, one of the first states of the nation to resume capital punishment, has executed regularly throughout the modern period.

The trends of executions depicted in chart 3 show how capital punishment, like the policy of mass incarceration, has been embraced by neoconservative Republicans. As an open challenge to these reactionary polices that have been wielded as tools of repression against poor and marginalized workers for the past 30 years, the Socialist Prison Reform Proposal offers the following strategy.

Five Strategic Objectives of the SPRP

The neoconservative prison reforms of the 1980s and 1990s consolidated the US prison system as an essential agency of the state that serves the needs of capitalism at the expense of working people and their communities across the country. The neocons announced their reactionary strategy in the "Taking Back Our Streets (TBOS) Act," a major component of the "Republican Contract with America" and vigorously set about imposing their agenda on federal and state governments.3 The USA's present status as the Prisonhouse of Nations is the consequence.

In sharp contrast to the reactionary prison policy of mass incarceration currently in effect in the US and the retention of the death penalty, the SPRP offers a starting point for dismantling the Prisonhouse of Nations and securing justice for working people.

The five key objectives of the SPRP are:

1.Abolish Capital Punishment. Capital punishment has been a major tool of repression in the US from the time it was used to control slaves and immigrant workers in colonial America through its continued use in the southern states today. The utilization of state-sanctioned killing by neoconservative political forces in pursuit of their repressive crime control agenda outlined in the TBOS Act reached its zenith with the passage of the Anti-Terrorism and Effective Death Penalty (ATEDP) Act in 1995 that streamlined the execution process by restricting prisoners' rights of habeas corpus, the rule of law that allows inmates to challenge their convictions (Richard D. Vogel, "Capital Punishment Update," Monthly Review, December 2004).
The SPRP calls for the immediate abolition of capital punishment in the US. The current policy of state-sponsored killing sanctioned by the US Constitution must be replaced by law based on the principle of the inalienable right to life recognized in Article 3 of the Universal Declaration of Human Rights.

2.Downsize the US Prison System. While incarceration in the US will never be eliminated, it can be dramatically reduced by putting an end to its repressive function and focusing on legitimate criminal justice operations.
The SPRP advocates the development of both social initiatives and prison policy reforms to facilitate the downsizing of the US prison system.

Social initiatives must include socioeconomic reforms that provide genuine educational and employment opportunities for all citizens, while prison policy reforms should include proven alternatives to incarceration such as effective substance abuse programs, family support services, mediation/victim reconciliation programs, fines/restitution, community supervision and service, alternative education opportunities, and job training/placement services.

In addition to reducing bloated prison populations, downsizing the system will offer the opportunity to modernize US prison facilities. According to the USDOJ, in the year 2000, 22% of all US prisons were over 50 years old and over 20% of the oldest buildings had been in use for 100 years or more (Census of State and Federal Correctional Facilities, 2000). Many of these older facilities are unfit for human habitation and should be demolished.

In view of the profound negative impact of mass incarceration on the lives of millions of citizens and targeted communities across the nation, the SPRP calls for the immediate downsizing of the US prison system.

3.Stop the War on Drugs. The War on Drugs that began in the 1980s and was reinforced by federal and state legislation during the 1990s has been the central strategy of repression in the USA for the past 30 years. Selective law enforcement and adjudication practices, mandatory minimum sentencing, and mandatory life imprisonment ("three strike and you're out") have given neoconservatives the tools of repression that they have used to implement and maintain a policy of mass incarceration. It is time to end the War on Drugs, which from its inception has been a war on working people, especially national minorities.
The SPRP calls for an immediate end to the War on Drugs and insists on the establishment of programs that treat drug problems as what they really are -- public health problems. The SPRP also calls for amnesty, restitution, and full rehabilitation for prisoners who were clearly casualties of the War on Drugs.

4.Demilitarize Law Enforcement in the US. Under the banners of Law and Order and the War on Crime, the neoconservatives converted many law enforcement agencies in the US into paramilitary units of repression (Radley Balko, "Overkill: The Rise of Paramilitary Police Raids in America," Cato Institute, 17 July 2006). Under neocon fiscal control, federal funds initially allocated for drug courts, recreational and community programs, and crime prevention initiatives were redirected to support reactionary police practices.

The SPRP advocates demilitarizing law enforcement agencies in the US and refocusing them on their primary duties to serve and protect all of the citizens under their jurisdiction.

5.Restore the Rights of Prisoners. Incarceration deprivescriminals of certain rights and privileges that they enjoyed in free society, but prisoners do not lose all of their rights as citizens. Specifically, they are protected from cruel and unusual punishment under the Eighth Amendment of the US Constitution. Supreme Court rulings have established that prisoners are entitled to the "minimal civilized measure of life's necessities." The Court has listed these needs as "food, clothing, shelter, medical care and reasonable safety" as well as "warmth and exercise."4

The rights of prisoners have been undermined by the staggering costs of mass incarceration -- currently over $70 billion a year is being spent on what the USDOJ classifies as corrections. The authors of the current neoconservative prison policy recognized the fact that prison conditions in the US have been established and are maintained primarily through prisoner-initiated litigation, and sought ways to restrict prisoners' access to the courts. This objective was realized to a great extent in the Prison Litigation Reform Act (PLRA) of 1996 (Richard D. Vogel, "Silencing the Cells: Mass Incarceration and Legal Repression in U.S. Prisons," Monthly Review, May 2004).

The SPRP calls forrepealing the PLRA as the first step in restoring the civil rights of prisoners.

Make no mistake about it -- the USA is solidly entrenched as the Prisonhouse of Nations. During the past three decades, politicians from both the Republican and the Democratic parties have contributed to its construction and maintenance by jumping on the bandwagons of Law and Order, The War on Drugs, and, most recently, The War on Terror.

There is no doubt that dismantling the Prisonhouse will require significant structural adjustments in local, state, and the national economies. Under neoconservative rule, direct expenditures for prisons have increased 660% while police and judicial expenditures have increased 429% and 503% respectively. Total employment in the criminal justice system grew 86% from 1982 to 2003 and now stands at nearly 2.5 million with a payroll of over $9 billion a month.

The vested interests in the US prison system are huge, but this edifice that reinforces inequality cannot be allowed to stand. The current political crisis presents great danger and great opportunity. Repression in the US can continue to escalate, or it can be confronted and turned back. What must be kept in mind is that the Prisonhouse was created and is sustained by capitalism -- the end of institutional political repression in the USA will only be accomplished through socialist reform.

Why Socialist Reform?5

The historical relationship between capitalism and incarceration (chart 1) and the history of the death penalty (chart 2) in the US reveal why prison reform must be part of a socialist agenda for the nation. All prior prison reforms in the US, most notably the reactionary prison reforms of the 1980s and 1990s, have been prison restructuring to meet the demands of the capitalist economy. The covert function of prisons -- the warehousing of elements of the working class that have been displaced in the US economy -- is inherent to capitalism. Working people are valued only for their labor power and when it is no longer needed (e.g., when cheaper labor is available offshore) they become superfluous to capitalist production. Modern prisons, like the poor houses of the past, have become warehouses for those displaced and marginalized in modern America.

The failure of the mid-20th century movement to abolish capital punishment in the US illustrates the impossibility of meaningful prison or criminal justice reform under the rule of capitalism. In that abortive challenge to the death penalty, the Supreme Court ultimately ruled that state-sanctioned killing was not "cruel and unusual punishment" and is therefore permitted under the US Constitution.

But it must be remembered that the US Constitution was written by rich men who were more dedicated to the preservation of their private property rights and attendant privileges than to protecting the rights of common men. While Article V of The Bill of Rights guaranteed that no person shall ". . .be deprived of life, liberty, or property without due process of law," statutory law and judicial decisions have allowed the agents of capitalism to determine the legal processes of depriving working people of their lives and liberty. Both the continuation of state killing and the mass incarceration of modern times are the direct outcomes of the "due process" of law dictated by neoliberal capitalism.

A Time of Crisis

Crises in the capitalist economy have historically produced crises in the prisons. The economic collapse of the Great Depression created massive prison overcrowding in the Western world. In Europe, the crisis sparked prison reform and, in several countries, resulted in amnesty for economic and political prisoners.6 In the US, work relief programs such as the Civilian Conservation Corps and direct economic aid to working-class families took pressure off the prison system, but the prison problem was never confronted directly -- respite came through the manpower demands of World War II when even prisoners were drafted into military service.7 The military manpower demands of the Cold War and the wars in Korea and Vietnam postponed a general prison crisis, but it has finally arrived with the massive economic displacement and marginalization of working people that has accompanied neoliberal globalization.

The current economic crisis presents an opportunity to confront the prison problem in the USA in the context of building a national economy that serves the needs of the majority. Only a socialist state based on the political principles of liberty, unity, and social justice can dismantle the Prisonhouse of Nations.

The Socialist Prison Reform Proposal offers a starting point for a renewed struggle for social justice in the US.

1 The phrase "Prisonhouse of Nations" is borrowed from journalist and death-row inmate Mumia Abu-Jamal's latest book, Jailhouse Lawyers: Prisoners Defending Prisoners in the U.S.A. (San Francisco: City Light Books, 2009). For a review of this important book, go to .

2 The State of Missouri is not an exception to this tendency. Missouri has historically been a border state between the Midwest and the South that demonstrates characteristics of both regions. The fact that Missouri is in the second tier of incarceration rates and third tier of executions reflects its affinity to the South.

3 A detailed analysis of how the US prison system was co-opted by the neoconservative Republicans is available in "Globalization and the Incarceration of the Black Working Class."

4 John Boston and Daniel E. Manville offer a comprehensive explanation of prisoners' rights in Prisoners' Self-Help Litigation Manual, Third Edition (New York: Oceana, 1995), 11.

5 For a succinct comparison of the political principles and practices of socialism to those of capitalism see "The Socialist Alternative" at .

6 An amnesty bill freeing thousands of prisoners in Germany during the Great Depression was reported in the New York Times in 1932.

7 The establishment of draft boards in federal and state prisons was reported in the New York Times during the war.

Richard D. Vogel is a political reporter who monitors the effects of globalization on working people and their communities. He has published articles in Monthly Review, Canadian Dimension, and is a regular contributor to In addition, he has made presentations at Cal Poly, Pomona, the University of Houston, and LaborFest in San Francisco. He is available for radio interviews, presentations, and workshops at schools, union meetings, and community groups. Visit the Web site edited by Vogel From the Left -- A US Forum on Combating Globalization at . Contact: . Download this article in PDF: .

$2 million settlement for Broward man cleared by DNA

Mentally challenged man in prison 22 years for crimes he didn't commit will receive $2 million from the Broward Sheriff''s Office

By Paula McMahon

South Florida Sun Sentinel

10:18 AM EDT, September 22, 2009

The Broward Sheriff's Office has quietly reached a $2-million settlement with Jerry Frank Townsend, a mentally challenged man who was wrongly convicted and spent 22 years in prison for a series of murders that DNA later showed he did not commit, documents obtained by the Sun Sentinel show.

Under the terms of the settlement, reached with no fanfare, Townsend, who is now 57 but has the mental functioning of an 8-year-old, will receive a series of payments. He was paid $500,000 earlier this year and will receive $300,000 per year in each of the next five years.

The settlement in the civil rights violations lawsuit named the Broward Sheriff's Office, current and former sheriffs Al Lamberti, Ken Jenne and Nick Navarro, and former sheriff's deputies Tony Fantigrassi and Mark Schlein.

Broward sheriff's officials would not comment Monday and efforts to reach Fantigrassi were unsuccessful. Court documents show the settlement in the Broward civil lawsuit was reached in April.

In an e-mail, Schlein wrote "For me, this case has been a constant reminder that the criminal justice system is imperfect. It has always been imperfect, and it remains so today -- even with the dramatic advances over the years in forensic science ... Perhaps most importantly, it is a powerful argument against the death penalty. Thankfully, it was not imposed in this case."

Last year, Townsend settled a similar civil lawsuit against the city of Miami for $2.2 million.

Townsend's attorney, Barbara Heyer, who worked on the civil cases for more than seven years, declined to comment and said Townsend would not be commenting either. In previous interviews, she described the sheriff's officials conduct as "egregious." She will receive $800,000 in legal fees from the Broward settlement.

Since he was freed eight years ago, Townsend has enjoyed spending time with his family and getting acquainted with his young grandsons, said Donald Spadaro, who acts as Townsend's legal guardian because of his mental disabilities. "He enjoys going to their football games," said Spadaro.

Townsend was sentenced to several life terms and served 22 years in prison for convictions in six murders and one rape he didn't commit in Broward and Miami-Dade counties. He was arrested in 1979 in Miami on a rape charge, then turned over to authorities in Broward who charged him with six murders.

The case became a notorious example of how mentally challenged people are particularly vulnerable to making false confessions under pressure from law enforcement.

The Broward Sheriff's Office and its deputies "fabricated evidence, concealed exculpatory evidence, tampered with witnesses, and coerced a false confession by intimidation and deception from [Townsend], who they knew was a mentally challenged person," the civil suit claimed.

Then-Deputies Fantigrassi and Schlein obtained Townsend's now-discredited taped confessions. Fantigrassi has since retired and Schlein is an attorney with the state Department of Financial Services.

Townsend was set free in June 2001 after DNA indicated the crimes were committed by another man, Eddie Lee Mosley, who was known as "the Rape Man" in his northwest Fort Lauderdale neighborhood. Mosley, 62, has been found incompetent to stand trial and is in a secure state psychiatric hospital in Chattahoochee, near Tallahassee.

Townsend was 27 when he was arrested for rape by Miami police. According to the lawsuits, Miami and Broward sheriff's detectives coerced confessions from Townsend, who has an IQ in the 50s, and turned on and off tape recorders to feed him details of the crimes. The confessions were rife with inconsistencies.

In the Broward lawsuit, Heyer noted that the murders continued after Townsend was arrested in 1979 and that this fact alone should have convinced investigators they had the wrong man.

Staff Writer Jon Burstein contributed to this report.

Paula McMahon can be reached at or 954-356-4533.

Testimony to begin in David Edenfield death penalty murder trial

The jury should hear testimony Wednesday against Edenfield.
By Teresa Stepzinski
Story updated at 9:08 AM on Tuesday, Sep. 29, 200

BRUNSWICK - A jury imported from 90 miles away will begin hearing testimony Wednesday in the death penalty murder trial of David Edenfield, who is charged with the sexual abuse slaying of Christopher Michael Barrios Jr.

The jury is expected to be empaneled this afternoon from Jeff Davis County, court authorities said. The jury selection process began Sept. 21 in Hazlehurst at the north end of the five-county Brunswick Judicial Circuit. As of Monday afternoon, about 60 had been qualified for the jury pool.

Jurors will be sequestered at an undisclosed location throughout the trial at the Glynn County Courthouse in Brunswick. After testimony begins, the trial is expected to last three to five days, authorities estimated.

Christopher, 6, was killed March 8, 2007. The kindergarten student's body was discovered a week later inside a black plastic trash bag hidden in woods about 2 miles from the Canal Mobile Home Park in Brunswick, where he had lived with his extended family.

Edenfield, 59, his wife, Peggy, 58, and their 33-year-old son, George, were neighbors of the Barrios family. All three remain jailed without bail on charges of malice murder, kidnapping and child molestation.

Prosecutors will be allowed to use the elder Edenfield's statements to Glynn County police detectives as evidence, Superior Court Judge Stephen Scarlett has ruled.

David Edenfield said his son killed Christopher and initially admitted only to helping hide Christopher's body. He later admitted greater involvement in the slaying, which led police to charge him with murder, retired detective Ray Sarro testified during a pretrial hearing.

District Attorney Stephen Kelley is seeking the death penalty against the father and son. Peggy Edenfield has agreed to testify against her husband and son in exchange for prosecutors not asking that she get the death penalty.

Edenfield's attorneys, James Yancey Jr. and John Beall IV, contend he can't receive a fair trial anywhere in Coastal Georgia because of extensive news media coverage of the case and public hostility., (912) 264-0405

Quad murders: Bay investigators say Williams was there

September 29, 2009 02:06:00 PM
By DAVID ANGIER / News Herald Writer

MARIANNA — Bay County Sheriff Frank McKeithen told jurors in Jackson County on Tuesday that murder defendant Wesley Williams confessed he was in Danielle Baker’s home when she was killed.

“He said he didn’t do it,” McKeithen said about an interview he had with Williams in January 2008. “He said he was present, he knew who did it, and he could prove it.”

McKeithen said he asked Williams if revealing everything would clear him.

“He said it would be according to how you look at it,” McKeithen said. Williams, he said, believed he would not be charged with “the main charge.”

Bay County Sheriff’s Office Lt. Joe Smiley said he was present for the admission, but neither man recorded the conversation.

Williams, 25, is accused of killing Baker, 19, and Amad, 3, Amarion, 1, and Aaron, 3 weeks. Baker was shot to death inside her Cottondale Village apartment on March 17, 2005. The three boys suffocated after being bound with duct tape. Williams, who fathered two of the boys, is charged with four counts of first-degree murder and three counts of aggravated child abuse and faces the death penalty if convicted as charged. His trial began last week.

Deputy Public Defender Walter Smith, told jurors that Williams had nothing whatsoever to do with the killings. Prosecutor Larry Basford said the killing was done so Williams could avoid paying Baker child support.

Basford concluded his case Tuesday morning and rested after lunch.

His last witness was local Medical Examiner Dr. Michael Hunter who, working off Dr. William Siebert’s autopsy notes, told jurors that Baker was killed with a single gunshot to the head and the three children were smothered by the tape.

Hunter said the downward angle of the wound, and the gun being 2 inches to 2 feet from Baker’s head when it discharged, indicates the killer was probably standing over her when the shot was fired. Baker was found slumped over with her back against her kitchen cabinets. She probably was killed while sitting or standing where she was found.

Hunter said her injury was devastating and she would have been unconscious immediately, even if her heart continued to beat. The children, he said, were probably unconscious within a minute of their airways being taped over and died a few minutes later.

Hunter said two of the children showed signs of chemical burns to their skin, but he believed this came after they died. Siebert noted in his report the smell of bleach in the bathroom where the children’s bodies were found. Basford said the bleach probably was used to destroy evidence.

The defense

Smith began his defense Tuesday afternoon, calling Maurice Jones to the stand. Jones said he went with Perry Johnson, a man who spent time with Baker the night before her death, to Miami so Johnson could obtain a kilogram of cocaine. Jones said his understanding was the cocaine was “fronted,” or given to Johnson with the understanding he would pay for it later.

“I just know it was a front thing,” Jones said of the transaction. “He owed the dude some money.”

One of Smith’s defenses is Baker and her children were killed by the drug suppliers as they were searching for Johnson to get their money.

Basford asked Jones if any of Johnson’s friends would think to go to Baker’s residence in search of Johnson, considering the two were just beginning a relationship. Jones, who seemed to get angrier the longer the questioning went on, said he didn’t know Baker or her relationship with Johnson.

Candy Zuleger, lab manager for Trinity DNA Solutions in Milton, told jurors about tests she ran on glove fragments found on the tape used to bind Amarion. She said she found two minor DNA signatures on the fragments, neither one of them Williams’. However, she said, because Williams shares much of his DNA profile with Amarion, his son, she was not able to rule him out as a contributor to the genetic material found on the glove.

Zuleger said the genetic material she found all came from males.

“So, two males contributed DNA material to those glove fragments other than Amarion Baker?” Smith asked.

“That’s what it looks like,” she said.

Man Convicted Of Lunsford Killing Dies

John Couey Sentenced To Death In 2007

POSTED: Wednesday, September 30, 2009
UPDATED: 4:15 pm EDT September 30, 2009

TALLAHASSEE, Fla. -- John Evander Couey, a convicted sex offender awaiting execution for kidnapping, raping and burying 9-year-old Jessica Lunsford alive in 2005, died of natural causes Wednesday.

Couey, 51, had been ill for some time and died in a Jacksonville hospital, said Department of Corrections spokeswoman Gretl Plessinger.

"It was not a surprise," she said.

Plessinger declined to provide any specifics, citing a federal law protecting the privacy of hospital patients.

Jessica's grandmother, Ruth Lunsford, 77, said in a telephone interview that she couldn't feel bad about Couey's death.

"He murdered my granddaughter. He didn't show any mercy to my granddaughter," she said. "God took control of it. He took him out of this world. ... I'm not crying, honey. If my legs and feet would hold up, I'd go out and shout all over Citrus County."

The crime prompted many states to pass laws named for Jessica that impose restrictions on sex offenders, including tougher penalties and registration requirements. Florida's version also bans them and others convicted of serious crimes from school grounds.

Couey died just over a month before the Florida Supreme Court was scheduled to hear his automatic appeal. He had an IQ of 78, slightly above the level generally considered mentally disabled, but the judge rejected an argument by his lawyer that he couldn't legally be executed.

Couey spent much of his 2007 trial, which was moved to Miami because of publicity about the case, drawing in coloring books. He looked straight ahead as Circuit Judge Ric Howard told him he should be executed.

Jessica's father, Mark Lunsford, teared up then as he listened to the judge read a detailed history of the case. Outside court, he had a message for Couey: "Skip all these appeals. Take your punishment. Stand up and be a man."

Couey took Jessica from her bedroom to his nearby trailer in February 2005, triggering a massive search. The third-grader's body was found about three weeks later in a grave in Couey's yard, only about 150 yards from her home.

Couey's confession was thrown out as evidence because he did not have a lawyer present. Jail guards and investigators testified he repeatedly admitted details of the slaying but said he hadn't meant to kill the girl.

Prosecutors also introduced overwhelming physical evidence, including fingerprints and DNA.

Jessica's body was found wrapped in two garbage bags under a foot of dirt.

Couey previously had been convicted of exposing himself to a 5-year-old girl in 1991. His criminal record also included 24 burglary arrests and carrying a concealed weapon.

Jerry Townsend files

Jerry Townsend files

Supreme Court Starts Term with First Amendment Cases

Sullivan v. Florida and Graham v. Florida.
Argument: Nov. 9.
Terrance Graham and Joe Sullivan were both sentenced to life in prison with no possibility of parole for separate offences they committed as minors.Graham pleaded guilty at age 16 to armed burglary and attempted armed robbery of a restaurant. Due to a probation violation, he was sentenced to the maximum penalty.Sullivan was convicted in 1989 at age 13 of sexual battery involving a 72-year-old woman.These cases come after the 2005 Ropert v. Florida ruling in which the court ruled 5-4 that sentencing minors to the death penalty violates Eighth Amendment protections against cruel and unusual punishment.Graham and Sullivan argue that sentencing juveniles to life without parole also violates the Eighth Amendment because it eradicates hope.Fourteen friend-of-the-court briefs side with Graham and Sullivan; six support the state.Pottawattamie County, Iowa v. McGhee. Argument: Nov. 4.Retired police officer John Schweer was shot and killed July 21, 1977, in Council Bluffs, Iowa. Two Pottawattamie County prosecutors were found to have planted evidence and withheld exculpatory evidence during the criminal trial. Suspects Terry Harrington and Curtis McGhee were convicted in 1978 and released 20 years later, after that discovery. The are seeking civil damages from the county and the prosecutors, who argue they are immune to a civil suit because they were acting on behalf of the government."In this case, the prosecutors were acting very, very, very badly," said Lisa Kung, of the Southern Center for Human Rights. "The question is how much immunity do we give a prosecutor?"The ruling could give blanket immunity to anything a prosecutor does if the court sides with the prosecutors.

Sunday, September 27, 2009

Law experts: Fixes to Fla. death penalty ignored

Associated Press Writer

Lawyers, current and retired judges and a former death row inmate Wednesday criticized Florida for ignoring suggestions on how to fix its death penalty procedures.

An American Bar Association team made the recommendations three years ago. A forum at Florida State University was designed in part to "brush off any dust," said Sandy D'Alemberte, the school's president emeritus and a former ABA president.

"There has just been a lack of political will, both executive and legislative," D'Alemberte said. "I hope at some point people will understand this is such an expensive system we're running and it's one that's been extremely ineffective."

D'Alemberte said the forum's purpose was not to advocate abolishing the death penalty but to push for changes in a system that one judge called "a morass."

Sen. Victor Crist, a Tampa Republican who focuses on death penalty issues and chairs a committee that oversees court and prison system spending, said the Legislature has looked at the recommendations and decided most weren't needed.

"To say that we have a dysfunctional death penalty system is false and misleading," Crist said. "Florida is at the forefront of anywhere in the world that has decided to keep the death sentence."

Some key recommendations are for unanimous jury votes to recommend the death penalty, improved jury instructions, uniform criteria to help prosecutors decide what cases should merit a request for death and better legal representation for appeals.

Twenty-two inmates have been released from Florida's death row, more than any other state, because courts or a governor have determined they had been wrongly convicted. They include Juan Melendez, who was freed in 2002 after spending 17 years on death row.

"You can always release an innocent man from prison," Melendez said in an interview. "But you can never, and I repeat, you can never release an innocent man from the grave."

Crist, though, said he believes the high number of releases proves Florida's system does prevent innocent people from being executed.

Circuit Judge Lynn Tepper of Dade City said she was afraid federal courts may begin overturning some death sentences because Florida is the only state that lets juries recommend death and agree on aggravating circumstances to justify that sentence both by less than a unanimous vote.

"One of these days Florida is going to find itself in trouble," said Tepper, who participated in the forum by phone.

The Florida Supreme Court in 2005 also urged the Legislature to require unanimous jury recommendations in an opinion on one of Tepper's cases.

Crist did agree with the critics on one issue - the state should restore a legal office that represented death row inmates in northern Florida for their appeals.

At the urging of former Gov. Jeb Bush, the Legislature abolished that office and set up a system of private lawyers as an experiment in privatization but kept two others going in central and South Florida.

Judges have complained the private lawyers have not been up to par. Crist said he's worried about losing the confidence of the courts and has sponsored bills for the past three years to restore the northern office. They have passed in the Senate but haven't been taken up in the House.

House Criminal and Civil Justice Policy Council Chairman William Snyder, R-Stuart, said he was unfamiliar with ABA recommendations. Snyder noted he's only been in the Legislature for three years and no one's ever come to see him about them.

Inmates' families can call number to voice complaints, concerns

By Naseem Sowti Miller
Staff writer

Published: Friday, June 12, 2009 at 6:30 a.m.
From now on, people who have a complaint or concern about the welfare of a loved one who is incarcerated at the Marion County Jail can call a specific phone number or fill out an online inquiry form — and expect to hear from a jail official within 24 hours.

“We realized that complaints came from a lot of different avenues,” said Marion County Sheriff’s Major Paul Laxton, corrections bureau chief. “This way, they come to one central place, and we can address them. There’s always a watch commander here who will get the information, and they can look into the situation and get back with them.”

The watch commander of the jail is required to initiate contact with the citizens within 24 hours and respond accordingly to the inquiry, according to jail officials. Laxton said the Inmate Welfare Information Line at 352-438-5970 and the related online form at are not intended for general checking on inmates or inquiring about other issues related to their arrest.

Laxton said the addition of the Inmate Welfare Information Line was not in response to the U.S. Justice Department investigation of the jail.

“We’re always looking for ways to provide a better service for public,” he said.

DOJ began looking into the jail in March to determine whether adequate suicide prevention measures are in place and how force is applied by corrections officers. DOJ investigators are slated to have a week-long visit to the jail at the end of August.

Also this week, the jail was evaluated by three auditors from the American Correctional Association. The national organization has been accrediting the jail every three years for the past two decades. The auditors look at all areas and services of the jail, from the kitchen to the infirmary.

Sgt. Jeff Owens, the accreditation manager at the Marion County Sheriff’s Office, described the three-day process as “very intense.”

“But we do it, so we can show the community that we do strive for excellence, and we have an outside body that confirms that.”

Officials from the MCSO will find out in early August if the jail’s ACA accreditation will be renewed.

Owens said that the jail scored well in all areas.

During the exit interview, which was held on Wednesday morning in front of more than 300 MCSO employees, the auditors gave the jail 100 percent for complying with mandatory national standards and 99 percent for non-mandatory standards, according to jail officials.

“We’re confident that there’s no reason they won’t recommend us (for re-accreditation),” Owens said.

The jail is also accredited by the Florida Corrections Accreditation Commission and CFA, another Florida accreditation body.

Friday, September 25, 2009

Paul Flemming: Death needs more than a simple majority

You couldn't get spinach on your pizza after E. coli-tainted shipments of the leafy stuff killed a couple people. The Cardinals won the World Series. "Basic Instinct 2," "Ice Age 2" and "Jackass 2" played in theaters. Among those who died in 2006 was an odd musical trio: Buck Owens, Billy Preston and Syd Barrett.

Clarence Hill, Arthur Rutherford, Danny Rolling and Angel Diaz also died that year. They were executed by the state of Florida.

That same year, a group assembled by the American Bar Association released a weighty tome — a literal and figurative description of the 400-plus page assessment of Florida's death penalty.

Those who labored to produce it ranged across the ideological spectrum, and its leadership was at great pains to insist — correctly — that the report did not take a position on the death penalty itself, only its administration and the many flaws in Florida's system.

"The ABA does not have a position against the death penalty," Sandy D'Alemberte, former president of the ABA and former Florida State University president, said this week. "It does have a position that the death penalty ... ought to at least be administered fairly, honestly and without discrimination."

An even dozen recommendations were put forward, ranging from reforms to address faulty witness identifications to ways of reducing ambiguous jury instructions and racial disparity in the death penalty's application.

On Wednesday, a panel gathered at FSU's Law School to follow up and get things rolling after three years of nothing.

The report "sits there, and I think that's probably its state. It sits there," said Mike Minerva, former public defender in the Second Judicial Circuit that includes Tallahassee and among the eight authors of the report.

Wednesday's coffee-and-cookies gathering of about 100 people was part of the ABA's Death Penalty Moratorium Project, an effort to get states that have capital punishment to evaluate and fix their systems before executing anyone else.

Coincidentally, Angel Diaz's 2006 lethal injection was so thoroughly screwed up that then-Gov. Jeb Bush enacted a moratorium until the state could get its act together. There were no executions for the next 18 months, though the deliberations had nothing to do with the ABA report released two months previous and everything to do with procedures to minimize the likelihood of further botched efforts.

A unanimous Florida Supreme Court, in an opinion authored by now-former Justice Raul Cantero, a Bush appointee and then the court's most reliably conservative member, called for the Legislature to require juror unanimity to recommend a death sentence. Florida is alone among the 35 states that execute prisoners in not requiring that all jurors agree to the death penalty. The ABA report also suggests the same thing.

Also in 2006, then-Rep. Bruce Kyle, a Fort Myers Republican, offered a resolution rebuking the state's Supreme Court and saying the House thought a simple majority of jurors was just dandy to condemn suspects. It passed by a voice vote.

Another 2006 highlight was a November election. Florida voters passed Amendment 3, a proposal by the Legislature to require that amendments to the state's constitution be approved by 60 percent of those casting ballots.

To recap: Changing the state's constitution is of such import that it should require three of five voters' assent to alter it. Deciding to put a person to death can be determined by a 7-5 vote.

By those standards, a jury vote recommending death wouldn't be enough, at 58 percent, to pass a constitutional amendment.

Since 1973, Florida has released 19 men from Death Row. One is Juan Melendez, convicted in 1994 and sentenced to death for a crime he did not commit. That didn't stop him from serving 18 years, eight months and one day on Death Row before justice was served and he was released in 2002.

"You can never release an innocent man from the grave," Melendez said Wednesday. "The death-penalty law is not working in the state of Florida."

Almost everything in Tallahassee is open to equivocation, debate and compromise. Not this.

Whether you support the death penalty or oppose it, it is beyond debate that its administration should be fair, just and correct.

As a bulwark to help assure that, jury unanimity must be required. Every day the Legislature does not act is a failure and a damning indictment of our state.


Thursday, September 17, 2009

Florida County Crime Labs Feeling the Heat

It has been a rough August for a few of Florida’s county-run crime labs. First, last week we found out that the Broward County Sheriff’s Office Crime Lab is having a bit of financial difficulty:

The crime lab has been in operation in Broward since 1969, but with the state of the economy, auditors and county commissioners are searching for funds to keep it going.

Evidently, they don’t have the money to pay for the lab’s $7 million budget, especially with the State of Florida only subsidizing 13% percent of that budget. One option was to charge local law enforcement agencies for use of the lab’s services. Another, is to turn the lab over to the Florida Department of Law Enforcement and let them run it. However, the local Sheriff wants none of that:

Lamberti said it’s essential that the crime lab stay in Broward, for the sake of solving crimes before it’s too late.

He points to the recent case of a Taco Bell manager found dead in an Oakland Park restaurant. About the only thing Lamvberti’s detectives had to go on were fingerprints on a cup left at the scene.

“The closest state lab to Broward County is Fort Meyers. The evidence would have had to been transported there, analyzed,” Lamberti said. “It would have been weeks before we got those finger prints back.”

The lab lifted the prints, and the BSO had a suspect nabbed in the same day, before he could run.

“Within 21 hours we had the evidence analyzed, mainly finger prints, and we had the suspect in custody, all within 21 hours,” Lamberti said.

A little criminal fear mongering solves every problem. But this raises the question of which would be better, a better funded State lab that has more moving parts and may be less efficient or a locally controlled but cash strapped lab able to more timely respond to criminal investigative needs. Well, with this news from last week as evidence, maybe law enforcement-run labs, whether local or state, are really the problem:

Fourteen months after the DNA match, the rape suspect, Edward Mozie, would be arrested in a separate case for murdering Christine Myers in Sunrise.

Records show the DNA match sent by CODIS — the national DNA database — to MDPD on July 18, 2004 would have linked Edward Mozie to a rape on January 18, 2004 in Northwest Miami-Dade. The Florida Department of Law Enforcement confirms it received a copy of the notification on that date.

However, in a memo obtained by the CBS4 I-Team, MDPD says it has no record of the match being received by the department’s Crime Lab at that time. That means the information never got passed along to MDPD detectives who were looking for the rapist in the Northwest Miami-Dade attack.

Mozie was arrested on September 20, 2005 by the Sunrise Police Department for the murder of 18-year-old Christine Myers — 14 months after the DNA match that should have led to his arrest on a rape charge.

So did FDLE get the match and not pass it on to Miami Dade PD or did MDPD get it but not pass it onto investigators? Evidently, it is no one’s fault, or at least all agencies are covering their behinds to avoid obvious responsibility for a woman’s death. The FBI says they sent the match. FDLE says they got a copy of the match on the same day (even though they had the rapists DNA in the databse since 1997 and could have provided the match), and MDPD says they never received it.

Whatever way you cut it, this illuminates the problems with law enforcement-run labs. They are inefficient. And they are subjectively biased instead of scientifically objective because they work for the agency whose job it is to put people in prison.

The easiest way to solve this issue would be to make these government run labs independent from law enforcement agencies. While there is absolutely no chance of that happening in Florida, it should be the goal.


Tuesday, September 8, 2009

Wrongfully Convicted Caravella Being Freed From Jail Now

Wrongfully Convicted Caravella Being Freed From Jail Now

By Bob Norman
Tuesday, Sep. 8 2009 @ 6:06PM

It's a good day for justice. Anthony Caravella, who was wrongfully convicted of murder when he was 15-year-old, is being freed from the Broward County Jail right now, according to the Public Defender's Office.
After the jump you can read assistant Public Defender Diane Cuddihy's motion to vacate the murder sentence that details the whole sordid case (which was prosecuted by outgoing Judge Robert Carney). Here's a little clue from the motion about the state of mind of Miramar police when they were dealing with Caravella, who is mildly retarded:
Investigation has also revealed that the defendant's friend Dawn Simone, was taken into custody for obstruction of justice along with the defendant the night he was arrested on the juvenile pick-up order. She stated that the police were yelling at her and the defendant and they were pulling and tugging the defendant. They were both taken to the Miramar Police Station. The police told the defendant that they would let Ms. Simone go if he told them anything about the murder. At one point, Dawn Simone saw a detective shove the defendant in the back causing him to stumble. She stated that the police were very angry and very threatening. She also heard yelling and what she believed to be the police hitting the defendant coming from the interrogation room. She also advised that after fingerprinting her, the police forced her hand to her face, causing the ink to smear on her face. Ms. Simone was allowed to see the defendant face-to-face without the police. The defendant advised Ms. Simone that she was in a lot of trouble and that he was sorry and he would help her. That night, the defendant gave his first statement wherein he stated that he was present at the time of the crimes, but did not take part in the murder or rape. Dawn Simone was released that evening to the custody of her mother, Donna Simone. Dawn Simone did not testify at the motion to suppress or trial. Dawn Simone was available and willing to testify to the above facts at all times.
13. Additionally, Dawn Simone will testify that she and the defendant were transported to the police station in the same vehicle and the police kept asking the defendant if he had burglarized any of the houses they were passing and the defendant randomly pointed to houses saying, "I did that one, and that one," and finally the defendant stated that he had "robbed" the detective's mother's house. 14. Donna Simone also was not called by trial counsel and was available and willing to testify at all times. She will testify that she was home when two detectives came to her house to arrest the defendant. She will testify that the police were upset with the defendant and took him into her garage. She will testify that they took a phone book with them when they entered the garage and would not let her enter. She heard what she believed to be the police beating the defendant with the phone book. The defendant looked "roughed up" afterwards and the police arrested both the defendant and her daughter Dawn. ... Over the course of the next few days, the defendant remained in the Juvenile Detention Center and gave two more statements to the police, admitting a greater role in the murder/rape with each statement and finally confessing he committed the crime alone. The defendant was shoved, slapped, hit and otherwise coerced during the course of these statements
Again hit the jump to read the entire chilling motion, including the coaching of Caravella by detectives during his false confession.

State of Florida, Case No. 84-339CF10A
v. Judge Rodriguez-PowellAnthony Caravella,
The Defendant, Anthony Caravella, by and through his undersigned counsel, respectfully files this amended motion pursuant to Rule 3.850 Fla.R.Crim.P. (2009) and asks this Court to vacate the judgment of conviction and sentence rendered in this cause.This case involves two tragedies; first, the horrific murder of Ada Jankowski, and second the wrongful conviction and nearly 26 year incarceration of Anthony Caravella. This amended motion is brought after the receipt of DNA results that prove Caravella is innocent of the crimes for which he was convicted at 16 years of age. INTRODUCTION1. Ada Jankowski was found dead by an adult by-passer on November 4, 1983 in a field outside Miramar Elementary School. She had been sexually assaulted, strangled with a ligature from behind, and stabbed 29 times. (TT 1084; 1086; 1097) The police had no leads and made no arrest. 2. The defendant was arrested on an unrelated juvenile charge on December 28, 1983. He was fifteen-years-old at the time of the arrest. He was indicted for first degree murder and sexual battery in the death of Mrs. Jankowski. The only evidence against the defendant were four recorded statements and one oral statement made over a 5 day period while he was in custody on the juvenile charge. Each statement was different from the others and drastically contradicted the physical evidence in the case.3. Evidence presented at a motion to suppress established that the defendant was mentally retarded with a full I.Q. of 67. (TT 495) At trial the medical examiner testified to a dual cause of death, strangulation and multiple stab wounds. (TT 1086) A serologist testified that semen was present in the victim's vagina. (TT 1129) A woman who lived near the school testified that she heard two screams around 2:45 a.m. the morning the body was discovered. 4. The defendant was convicted and sentenced to life. His conviction was affirmed on direct appeal. Caravella v. State, 485 So. 2d 833 (table) (Fla. 4th DCA 1986).5. This is an amended motion filed after receipt of exonerative DNA results. The DNA results fatally undermine the state's case against the defendant. They prove that he admitted to acts he did not commit. The DNA results expose the defendant's statements for what they were- unreliable, coerced and false. The state tenuously constructed its entire case with this now unbelievable and implausible evidence. 6. The defendant was represented at trial by then Special Assistant Public Defender T. Don Tenbrook and on direct appeal by the Office of the Public Defender, 15th Judicial Circuit. 7. Through stipulation between the state and the defendant, the former trial court (Judge Tobin) ordered DNA testing. Several items were submitted for testing, including vaginal and rectal swabs and slide from the victim. On October 18, 2001, the The Broward Sheriff's Office Crime Lab submitted a report stating that it did not obtain a DNA profile from the sperm fractions found in the victim's vaginal, oral, or rectal swabs or smear slides.8. On March 31, 2009, this Court entered stipulated orders directing certain evidence be sent to Forensic Science Associates for further DNA testing at defense expense. The court ordered the transport of the victim's vaginal, oral and rectal swabs and smear slides, fingernail clippings from the victim, public hair combings and DNA standards from the victim. A DNA standard from the defendant was also provided.9. On August 27, 2009, Forensic Science Associates submitted a report stating that a DNA profile of the male perpetrator was retrieved from the sperm on the vaginal swabs and that this DNA evidence conclusively eliminates the defendant as the sperm donor. Thus, the defendant did not commit the sexual battery/murder of Ada Jankowski. The report was received September 2, 2009.10. The state prosecuted the defendant as the sole perpetrator of the sexual battery/murder of Ada Jankowski. (TT 973; 974; 976; 982; 1827;1828) The only evidence against the defendant was his four taped statements and one oral statement to the police wherein he eventually admitted raping and stabbing the victim.11. Investigation has revealed that the defendant was threatened with the arrest and prosecution of his friend, Dawn Simone, was promised and received face-to-face visitation and with Simone in exchange for giving a statement, and was beaten, pushed and slapped by the police. 12. Investigation has also revealed that the defendant's friend Dawn Simone, was taken into custody for obstruction of justice along with the defendant the night he was arrested on the juvenile pick-up order. She stated that the police were yelling at her and the defendant and they were pulling and tugging the defendant. They were both taken to the Miramar Police Station. The police told the defendant that they would let Ms. Simone go if he told them anything about the murder. At one point, Dawn Simone saw a detective shove the defendant in the back causing him to stumble. She stated that the police were very angry and very threatening. She also heard yelling and what she believed to be the police hitting the defendant coming from the interrogation room. She also advised that after fingerprinting her, the police forced her hand to her face, causing the ink to smear on her face. Ms. Simone was allowed to see the defendant face-to-face without the police. The defendant advised Ms. Simone that she was in a lot of trouble and that he was sorry and he would help her. That night, the defendant gave his first statement wherein he stated that he was present at the time of the crimes, but did not take part in the murder or rape. Dawn Simone was released that evening to the custody of her mother, Donna Simone. Dawn Simone did not testify at the motion to suppress or trial. Dawn Simone was available and willing to testify to the above facts at all times. 13. Additionally, Dawn Simone will testify that she and the defendant were transported to the police station in the same vehicle and the police kept asking the defendant if he had burglarized any of the houses they were passing and the defendant randomly pointed to houses saying, "I did that one, and that one," and finally the defendant stated that he had "robbed" the detective's mother's house. 14. Donna Simone also was not called by trial counsel and was available and willing to testify at all times. She will testify that she was home when two detectives came to her house to arrest the defendant. She will testify that the police were upset with the defendant and took him into her garage. She will testify that they took a phone book with them when they entered the garage and would not let her enter. She heard what she believed to be the police beating the defendant with the phone book. The defendant looked "roughed up" afterwards and the police arrested both the defendant and her daughter Dawn. 15. Investigation has revealed that Dawn Simone was again contacted by the detectives and brought by them in a police car to the Miramar Police Station. She was told that the defendant agreed to give a statement if he was allowed to see Ms. Simone. She said that they were again very angry and threatening and told her that she had to go with them. Ms. Simone had a face-to-face visit with the defendant. The defendant gave another statement. 16. Over the course of the next few days, the defendant remained in the Juvenile Detention Center and gave two more statements to the police, admitting a greater role in the murder/rape with each statement and finally confessing he committed the crime alone. The defendant was shoved, slapped, hit and otherwise coerced during the course of these statements.VERFIED MOTION FOR POST CONVICTION RELIEF17. The allegations contained in the defendant's Verified Motion for Post Conviction Relief are reasserted in this motion. Specifically, those allegations are:a. On October 28, 2002, undersigned counsel was contacted by Assistant State Attorney Carolyn McCann regarding an audio tape she had discovered while reviewing the state's file in this cause.b. That audio tape recorded a phone conversation of January 17, 1984, wherein Jorge Delgado admitted to Miramar Police Detective Mantesta that he committed the homicide with the defendant. (Detective Mantesta was one of the arresting and interrogating officers of the Defendant. Detective Mantesta had already arrested the defendant for the rape murder of the victim after extracting five different statements from the defendant.)c. Detective Mantesta asked Delgado if he understood what he was saying. When Delgado answered affirmatively, Detective Mantesta advised Delgado that he would immediately come to his home. Despite knowing that the conversation was being taped, Detective Mantesta did not engage Delgado in further conversation and rushed him off the phone. These facts are highly suspect and would have been used to question Mantesta's investigation and his motives.d. The audio tape, although delivered to and received by the state attorney, was never disclosed to the defendant or his counsel, despite the defendant's written discovery demand and demand for Brady evidence. e. The audio tape is critical for impeachment because Detective Mantesta, who is recorded speaking to Jorge Delgado, did not file a supplemental report regarding that conversation with Delgado or conduct any follow-up investigation. The lack of any follow-up reveals the inadequate investigation conducted by the police and calls into question their decision to charge a mentally retarded 15-year-old juvenile who gave coerced conflicting and confused statements that contradicted the physical evidence in the case. The case was a high profile case and the police were under pressure to arrest someone for this murder. f. The state's failure to disclose the tape to the defense violates its discovery obligation under Brady v. Maryland, 373 U.S. 83 (1963), United States v. Bagley, 473 U.S. 667 (1985) and Florida Rule of Criminal Procedure 3.220.g. An evidentiary hearing was previously ordered on this count.18. The state's case against the defendant relied exclusively on statements made by the defendant. The trial court noted that if the motion to suppress was granted, the state would be left without a case and the defendant would probably walk free. (TT 342) The defendant's statements were dissimilar to each other, contradicted the physical facts of the case and were the subject of a motion to suppress. The motion to suppress was granted in part by Judge Arthur Franza due to the absence of the defendant's mother at the time of the third statement. Judge Franza entered an order suppressing the third taped statement, but admitting the other four statements. (TT 586-590). 19. The defense at trial was quite simple -- Anthony Caravella did not commit the murder and, because of his age, mental capacity and coercive and abusive police tactics, told the police what he believed that they wanted to hear. The DNA results confirm this theory and exonerate the defendant. MOTION TO SUPPRESS THE FIRST TAPED STATEMENT (December 29, 1983 1:25a.m.)20. The defendant was arrested on December 28, 1983, at 10:51 p.m. on an unrelated juvenile pick up order two months after the victim's body was discovered. (TT 4;13;1273) Detective Mantesta and Detective Pierson executed the pick up order. According to Detective Pierson, the defendant was taken into an interrogation room at the Miramar Police Station and asked if he had any knowledge of the murder. (TT 16;1273) The defendant indicated that he knew something about the murder. A taped statement was then taken in which the defendant informed the detectives that the murder was committed by three juveniles. (TT 37;1279) 21. The defendant gave a lengthy recorded statement beginning at 1:25 a.m. on December 29, 1983, two and a half hours after he was arrested. References to a pre-tape conversation were made during the taped statement. (TT 36; 67; 71; 84; 104;1280) The defendant stated that he was picked up by three juveniles at 4 a.m., Steve Chappell, "Don" and another boy whose name he did not know. (TT. 45;1280) He stated that were driving around and observed the victim walking by a canal towards Winn Dixie. (TT 48;1288) He stated that Steve told him that "we're going to throw this lady in the car," and the defendant responded no. (TT 52;1295) The defendant related that Steve stated, "C'mon Anthony, we're gonna do something with this girl," and the defendant again said no. The defendant stated that the three juveniles grabbed the victim and threw her into the car and put Steve's shirt in her mouth. He stated that Steve decided to bring the victim to the school field. (TT 54;1295;1298) He stated that the juveniles threw the victim into the back seat next to the defendant.(TT 57-58;1300) The defendant stated that he told the juveniles he wanted nothing to do with the victim. (TT 57-58;1301) He told the detective that the three juveniles carried the victim through the gate into the school field and that he went and lay down on a near-by patio. (TT 61-62;1304-1305)23. The defendant said that Don pulled out a knife and stabbed the victim. (TT 68;1310) "Animal" (Steve) asked to stab her also. He said the victim screamed once or twice. He said, "Then she was really dead. They kept on stabbing her." (TT 68;1310) The defendant said they were using a "big butcher knife, big butcher knife. A carving knife, yeah." (TT 69;1311-1312) The defendant was then asked, "It wasn't -- it couldn't have been a steak knife?" He responded, "That's what I'm talking about. Big long, long knife." The detective replied, "I'm not talking about a hunting knife now. You didn't get a close look at the knife, did you?" (TT 69;1312) (Expert medical testimony established that the stab wounds were consistent with a kitchen steak knife. TT 1061)24. The defendant stated that they took all of the victim's clothes off and she was completely nude. (TT 71;120;1313) The following exchange occurred:Q. All right. How did they rape her? Did they take all of her clothes off?A. Yeah, they did.Q. They took every bit of her clothes off?A. Uh-huh.Q. All of it?A. Yeah.Q. Her pants completely off? And her blouse and shirt was off, you know, she was totally nude or what?A. Yeah.
(TT 71;1313) Because this description did not match the physical evidence, the detective addressed the victim's clothing again:Q. Was all her clothes off of her body?A. At the time, yeah.Q. She was laying there completely nude with not clothes on at all?A. Yeah.Q. You're sure of that?A. I know, yeah, I'm sure.Q. Your sure that they just didn't pull her--her shirt up to her arms and didn't get it completely off?A. No.
(TT 120;1313) The defendant said that Don stabbed the victim once, Steve stabbed her a few times and the third juvenile stabbed her three times in the chest. (TT 76-77;1318-1319) He did not see the victim stabbed anywhere but the chest. (TT 77;1319) He responded to a question regarding the victim's face and said that the third juvenile slapped her in the face with the knife. (TT 78;1320-1321) He stated that Don threw the knife after the victim died. (TT 80;1322-1323) The defendant said that he did not see a chair lying around. (TT 102; 1343) He stated that Don held the victim by the neck, but she was not choked. (TT 116; 1357) He described the victim as taller than his 5'10 to 6' frame (TT 124-125;1364)ORAL STATEMENT (December 30, 1983)25. The defendant agreed to take a polygraph test and was interviewed by Broward Sheriff's Office polygraphist Sergeant Anthony Fantigrassi. (TT 351;1398) This interview was not recorded. After Fantigrassi decided that the defendant's answers showed deception, he conducted another non-recorded interview. Fantigrassi testified that the defendant admitted to striking the victim several times and kicking her when she fell down. (TT 359;1410-1411) He stated that the defendant admitted to pinning the victim down by placing his forearm across her neck and that he pulled up the victim's shirt exposing her breasts. (TT 359;1411). He said that the defendant first told him the other boys raped the victim but he did not, and later admitted to having sex with the victim. However, he admitted to stabbing the victim. (TT 360;1412;1414) He stated that the defendant also admitted that the victim had been hit with a chair. (TT 361;1414) THE SECOND TAPED STATEMENT (December 30, 1983 5:00p.m.)26. On December 30, 2003, the defendant again spoke to the police. He stated that he met Steve after 3 a.m. (TT 189;1484) He, Steve and Don discussed raping and killing someone. (TT 191;1487;1491) They went to pick up the juvenile whose name he did not know. Don showed them his knife. (TT 207;1487;1500) He initially stated that the victim was choked, but later, when asked directly if she was choked at all, said no. (TT190; 219;1512) He stated that everyone got out of the car and threw the victim in. (TT 2081502-1504) He said that they brought her to the school field and started hitting her. (TT 214;1507) Steve hit her with a chair, but he was unaware of chair being damaged. (TT 214-215;1507) He said that Don and Steve took off the victim's clothes. (TT 216;1509) The defendant stated that he took off the victim's shirt up to her shoulders. (TT 216;1509) He said that Don, Steve, the other juvenile and the defendant all had sex with the victim and stabbed her. (TT 217;221;1510) He said the victim was stabbed about 40 times. (TT 221;1514) He stated that the victim was taller than him. (TT 232;1525) THE THIRD TAPED STATEMENT (January 3, 1984 - SUPPRESSED)27. On January 3, 1984, the defendant gave a third statement wherein he stated that Steve Chappell was not present during the abduction or murder, but that the defendant had implicated him because he was angry with Chappell. (TT 262; 306) The defendant stated that the other two individuals were involved. (TT 263) He stated that they ran out of gas and were walking when they encountered the victim. (TT 265) They hit the victim with a bottle over the eye. (TT 265) He stated that they picked her up and brought her to the school. (TT 265) They threw her down and began beating her. (TT 266) Don hit the victim with a chair. (TT 267) When asked what happened to the chair, he stated that it was left there. (TT 267) The other two raped the victim; the defendant did not. (TT 267) He stated that they took her pants completely off, but left her shirt on halfway. (TT 268) The detective asked specifically if they took her pants completely off and he responded "yeah." (TT 268) All three stabbed the victim. (TT 269-270) The defendant said that he stabbed the victim in the heart and she started screaming again. (TT 270) He stated that the victim was stabbed in the shoulder, chest, stomach and face. (TT 271-273)The defendant stated that he saw Jorge Delgado that night and had gotten the knife from him. (TT 283) He said that the knife shown him by the detectives was not the knife used in the homicide. (TT 277) The defendant gave descriptions of the other juveniles and stated that he knew where they lived. (TT 307) THE FOURTH TAPED STATEMENT (January 4, 1984)28. On January 4, 1984, while driving around with the detectives to show them the residences of the other juveniles, the defendant stated that he was lying about the others. He stated that he committed the crime alone. (TT 313; 321;1636) He was taken to the Miramar Police Department and gave a taped statement wherein he stated that he encountered the victim walking down the street, asked her the time and was angered when she ignored him. (TT 400;1615) He stated that he hit her over the head with a glass Pepsi bottle and dragged her into the school field. (TT 405;1615-1619) He stated that the victim was five foot something, but not as tall as him. (TT 410;1623) He stated that he hit the victim with the leg of a folding chair. (TT 424-425;1636) He did not hit the victim with the back of the chair. (TT 425;1637) He did not hit the victim with her chain, but broke it and threw it. (TT 426;1638) It was not difficult to break the chain off the victim's neck. (TT 426;1638) He ripped off the chain after he finished raping and stabbing the victim. (TT 444; 1656) He stated that he took the victim's pants completely off. The detective asked if he pulled the victim's pants all the way down or partially down. (TT 427;1640) He responded, "all the way down." The detective again asked if any section of the pants remained on the victim and he replied "no." (TT 428;1640) Her shoes were not on and he did not know how they came off. (TT 428-429;1640) He stated that he took off the victim's underwear, pulled her shirt up and ripped off her bra. (TT 431;1641-1642) He stated that he had vaginal sex with the victim but did not ejaculate. (TT 433-434;1646) He said that he stabbed the victim. He agreed with the detective when asked if he stabbed the victim in the back, shoulder, face and stomach. (TT 436;1648) He said that he did not stab her in the neck.( TT 442;1654) He stated that he stabbed her in the top of the buttocks. (TT 442;1654) When asked, he said that he "could have" stabbed the victim between her legs, but that he was stabbing her in the back. (TT 442;1654) He said that he did not slash the victim's face. (TT 447;1659) He stated that nothing happened to the knife, he just wiped the handle. (TT 453;1659;1665) He testified that he did not choke the victim. (TT 409) PHYSICAL EVIDENCE29. The knife used to stab the victim was broken. (TT 1022; 1025) The knife handle was found east of the victim's body and the blade was under the victim's foot. (TT 1017) A broken cafeteria style chair, not a folding chair, was found next to the victim's body. (TT 1016;1030;1040) The victim's pants were removed from the body with the exception of the right leg. (TT 1035) The right pant leg was pulled over the right shoe. (TT 1035) The victim suffered 29 stab wounds. (TT 1084) She was stabbed in the face, neck, abdomen, back, pubic region and anus. (TT 1060-1075) She died from strangulation, consistent with the use of a ligature from the back, and multiple stab wounds. (TT 1086;1097) It would have taken four minutes to effect death by strangulation. (TT 1094) There was intact sperm on the vaginal swab, which confirmed an ejaculation within 24 hours. (TT 1129;1169) Both the victim and the defendant had type A blood. (TT 1131;1144)ARGUMENTI. WHEN VIEWED IN LIGHT OF THE EVIDENCE PRESENTED AT TRIAL, THE NEWLY DISCOVERED DNA EVIDENCE PROVES THAT CARAVELLA IS INNOCENT AND UNDERMINES CONFIDENCE IN THE VERDICT. SUCH EVIDENCE IS ADMISSIBLE AND PROBABLY WOULD PRODUCE AN ACQUITTAL ON RETRIAL.
30. In order to obtain relief based on newly discovered evidence of innocence, a defendant must demonstrate new facts (1) that were "unknown by the trial court, by the party, or counsel at the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence," and (2) that if considered by the jury are "of such a nature that it would probably produce an acquittal on retrial." Jones v. State, 591 So.2d 911, 915-16 (Fla. 1991). In making this determination, the Court "will necessarily have to evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial." Jones, 591 So.2d at 916. As the Supreme Court of Florida recently explained, the Jones standard is met when the newly discovered evidence "weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability." Williamson v. State, 961 So.2d. 229 (Fla. 2007). The newly discovered DNA results, which show conclusively that someone other than Caravella deposited sperm inside the victim while she was being raped and stabbed to death, certainly create reasonable doubt about the defendant's guilt. Had this evidence been available at the time of Caravella's trial, he probably would have been acquitted. Jones v. State, 591 So.2d 911, 915-16 (Fla. 1991). As a result, Caravella's conviction and sentence must be vacated.A. THE DNA EVIDENCE CONSTITUTES ADMISSIBLE NEWLY DISCOVERED EVIDENCE AS DEFINED BY RULE 3.850 AND JONES V. STATE
31. The exonerative DNA results were unknown by the court and the parties at the time of trial in 1985. Indeed, DNA testing was not a generally accepted science in Florida courts until 1988. A defendant may request DNA testing "at any time." Fla.Stat.925.11; Fla.R.Crim. P. 3.853. Favorable results from DNA testing ordered pursuant to Rule 3.853 are cognizable as newly discovered evidence in a motion for new trial pursuant to Fla.R.Crim.P. 3.850, provided that it is presented to the Court within two years of the date on which the results are received. Fla.R.Crim.P. 3.850(a),(d). Because this motion is filed within two years of the date of the report provided by Forensic Science Associates, it is timely filed and satisfies the first prong of the Jones standard.B. THE NEWLY DISCOVERED EXONERATIVE EVIDENCE IS ADMISSIBLE AND PROBABLY WOULD PRODUCE AN ACQUITTAL ON RETRIAL.
32. Caravella was convicted based entirely on the confused, coerced and conflicting statements made to police wherein he admitted to sexual battery and murder. On august 27, 2009, Forensic Science Associates issued a report that established that the sperm found in the victim's vagina, deposited there during the crime, was not from Caravella. The DNA profile obtained from the vaginal swab did not match Caravella's DNA. This conclusively proves, according to the state's theory of its case, that the defendant did not rape and murder the victim. The state's entire case was built on then Anthony Caravella's statements wherein he admitted to raping and stabbing the victim. 33. Yet, the defendant's confused statements are both intrinsically and extrinsically inconsistent. He admitted to several very divergent accounts of the murder. Moreover, his versions of the murder do not comport with the physical evidence of the crime. The police were aware of these contradictions as evidenced by their repeated attempts to lead the defendant into statements consistent with the physical evidence. The defendant denied having choked the victim. The physical evidence established that one cause of death was strangulation with a ligature from behind. The defendant's description of the stabbings does not include stabbing the victim in the neck, vagina or rectum. The physical evidence established that the victim was stabbed in the neck, vagina and rectum. 34. The defendant repeatedly claimed that the victim's pants were completely removed. The physical evidence established that the right leg of the pants were partially on. The defendant claimed that the victim's shoes were not on and that he did not know where or how they came off. The physical evidence established that the victim's right shoe was on. The defendant initially denied seeing any chair and, after being repeatedly asked about a chair, finally stated that he hit the victim with a chair. However, he claimed that the chair was a folding chair and that it did not break. The physical evidence established that the victim was hit with a non-folding cafeteria style chair that broke into two pieces. 35. Undeterred by these obvious inconsistencies and despite the defendant's clearly diminished capacity, police continued the harsh, coercive interrogation. They only stopped questioning Caravella when they finally got what they wanted- an admission by the defendant that he raped and stabbed the victim by himself. The state's reliance on the defendant's statements and prosecution of the defendant as the sole perpetrator demand that his conviction and sentence by vacated. 36. The new DNA evidence proves that someone other than Anthony Caravella raped and murdered the victim. This is not only the strongest affirmative evidence of the defendant's innocence, but it also eviscerates the state's only remaining evidence by conclusively demonstrating that the defendant falsely admitted to a crime he did not commit. The defendant's confused statements were always highly suspect. When weighed against the exonerative DNA results and considering the suggestive, harsh, coercive tactics used to obtain these statements, these admissions now have no evidentiary value. It is an understatement to suggest that the new DNA results would probably produce an acquittal had the jury known about them. Not only do these results meet the Jones standard, no rational juror could possibly convict Anthony Caravella in light of the exonerative DNA results. Thus, this Court must vacate the defendant's conviction and sentence, his indictment should be dismissed, and the Defendant should be released from custody immediately.II. THE DEFENDANT WAS DEPRIVED HIS RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AS WELL AS HIS RIGHTS UNDER THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS, BECAUSE THE STATE WITHHELD EVIDENCE THAT WAS MATERIAL, EXCULPATORY, AND IMPEACHING IN NATURE
37. The defendant's reasserts the claims set forth in his Verified Motion for Post Conviction Relief as follows:38. The state failed to disclose exculpatory and impeaching evidence it had knowledge and possession of prior to the defendant's trial. That evidence consists of a telephone recording made at the Miramar Police Department on January 17, 1984, wherein another individual, Jorge Delgado, confessed to killing the victim Ada Jankowski with the defendant. The state's theory of the case at trial was that the defendant was the lone perpetrator of the murder. In addition, the lead detective at no time admitted to defense counsel or the jury that another individual claimed responsibility for the murder of Ada Jankowski.39. In Strickler v. Greene, 527 U.S. 263, 281-82, 144 L.Ed. 2d 286, 119 S.Ct. 1936 (1999), the United States Supreme Court enunciated the three components of a true Brady violation as follows: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued . Under the prejudice prong, the defendant must show that the suppressed evidence is material. Id. at 282. "Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine the confidence in the outcome. In determining materiality, the cumulative effect of the suppressed evidence must be considered. Cardona v. State, 826 So. 2d 968, 973 (Fla. 2002) 40. In Rogers v. State 782 So. 2d 373, 382, 384 (Fla.. 2001), the court concluded that police reports were favorable to Rogers because they could have been used to show that a person other than Rogers was involved in the robbery with the co-defendant and, therefore, the reports could have been used to impeach the codefendant's testimony at trial. 41. In the instant case, the audio tape could have been utilized to show the inadequacies of the police investigation. The audio tape was material in the motion to suppress because it reveals how readily the police accepted the inconsistent statements of a 15-year-old mentally retarded juvenile, and yet never investigated the confession of another juvenile. The audio tape would have been critical evidence to impeach Detective Mantesta. He never pursued the investigation of Delgado and was protective of Delgado. He did not question Delgado about the murder despite knowing that the conversation was being recorded. Instead, he rushed Delgado off the phone and advised that he would immediately come to his home. These facts put the defendant's statements as well as the entire police investigation in such a different light as to undermine confidence in the order denying in part the motion to suppress and the jury verdict. Way v. State, 760 So. 2d 903, 913 (Fla. 2000).42. There is no doubt that the state had possession of the audio tape in that it was discovered in the state attorney's file. Thus the second prong of Bagley is met.43. The defendant was prejudiced by the state's failure to disclose the audio tape. The fact that another juvenile confessed to committing the murder, even though he implicated the defendant, was damning to the state's case. The state proceeded under the theory that the defendant acted alone. Delgado's confession and the failure of the police to investigate that confession put the whole investigation in question. 44. The defendant is entitled to an evidentiary hearing in this matter. In Floyd v. State, 808 So. 2d 175 (Fla. 2002), the Florida Supreme Court remanded for an evidentiary hearing claims that the state withheld information which would have been used to impeach a witness who testified against him.CONCLUSION 45. "The suppression by the prosecution of evidence favorable to an accused," violates due process. Brady v. Maryland, 373 U.S. 83, 87 (1963); Kyles v. Whitley, 514 U.S. 419, 437 (1995); Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Exculpatory evidence that trial counsel unreasonably failed to discover and present to the jury violates the defendant's right to the effective assistance of counsel guaranteed by the Sixth Amendment of the U.S. Constitution. Strickland v. Washington, 466 U.S. 668 (1984). Newly discovered exculpatory evidence that the State failed to disclose or defense counsel unreasonably failed to discover and present nevertheless warrants a new trial under Fla. R. Crim. P. 3.850. Jones, 591 So.2d at 915-16. Under all three standards, the defendant must prove prejudice by demonstrating that had the evidence been presented at trial, there is a likelihood that he would have been acquitted. In all three instances, evidence presented herein must be considered cumulatively with other arguments presented in this motion and other admissible evidence presented during and after trial. State v. Gunsby, 670 So. 2d 920 (Fla. 1996); Mordenti v. State, 894 So. 2d 161 (Fla. 2004); Sims v. State, 754 So. 2d 657, 660 (Fla. 2000).The newly discovered DNA evidence proves that the defendant did not commit the sexual battery and murder for which he was convicted and demands that the defendant's conviction and sentence be vacated. The hidden audio-tape further undermines the reliability of the verdict. A new trial should be ordered. WHEREFORE, movant requests this Court to grant his motion for post conviction relief, vacate the defendant's conviction and sentence, dismiss the indictment against him, and immediately release the defendant.
STATE OF FLORIDA )COUNTY OF )Before me, the undersigned authority, this day personally appeared Anthony Caravella, who first being duly sworn, says that he is the Defendant in the above-styled cause, that he has read the forgoing Motion for Post-Conviction Relief and has personal knowledge of the facts and matters therein set forth and alleged; and that each and all of these facts and matters are true and correct.
______________________________Anthony Caravella
SWORN AND SUBSCRIBED TObefore me this ____ dayof ____________, 2009. Produced Identification: _________________________Notary Publicmy commission expires:
Howard FinkelsteinPublic Defender17th Judicial Circuit
______________________________Diane M. Cuddihy Florida Bar No. 434760Chief Assistant Public Defender201 S.E. 6th StreetNorth Wing - Third FloorFort Lauderdale, Fl. 33301Attorney for Defendant
CERTIFICATE OF SERVICEI HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by hand to Carolyn McCann, Assistant State Attorney, Office of the State Attorney, Broward County Courthouse, Fort Lauderdale, Florida, this day of September, 2009.
______________________________Diane M. Cuddihy