‘I’ve been waiting ... for this miracle’

A computer must have seemed the work of science fiction to James Bain in 1974. Thirty-five years later it is a computer that may have given him back his life. Bain, 19 when he was imprisoned for the 1974 rape of a 9-year-old Lake Wales boy, has proclaimed his innocence ever since the conviction.

Modern science, it appears, agrees. Of the 245 people in the U.S. who have been exonerated by DNA testing, none has spent more time behind bars than James Bain.

A DNA test, ordered by Circuit Court Judge James A. Yancey in October of this year, has exonerated Bain in the rape, representatives of the Innocence Project of Florida announced Thursday afternoon on the steps of the Polk County Courthouse in Bartow. Attorneys for the Innocence Project said they plan to file a motion soon to throw out Bain's conviction and get him released. They called on prosecutors to drop the case quickly so Bain can be home for Christmas.

State attorney's office spokesman Chip Thullbery said prosecutors are reviewing the new evidence. He said he didn't know when a decision would be made about the next step.

"Our plans are to do the right thing, and we have to determine what that is," Thullbery said. "We will certainly try to do that as expeditiously as possible."

Bain, the advocacy group says, knew he would be exonerated.

"I always knew I was innocent," the advocacy group quoted Bain as saying when he was informed of the DNA results. "I've been waiting well over half my life for this miracle. I hope to be back with my family real soon."

Bain’s father is happy, too.

“I’m glad he’s getting out,” said his father Kenneth Bain Sr., 81, from his home on West Northside Drive in Lake Wales on Friday. “I thank the Lord for that. After 35 years it really was good news ... It’s a very long time to be locked up.”

“All the best of his life is gone. He don’t know what it is out here now. He never seen a computer,” he added.

Bain was convicted of taking a 9-year-old boy from bed – leaving the boy’s also sleeping brother and sister behind – and raping him in a field near his Lake Wales home on March 4, 1974. The boy woke and was raped after being ordered to take off his pants. He returned home wearing underwear, secured by law enforcement at the time, that contained semen.

The victim described his attacker as a young man between 17 or 18 with a mustache, beard, and sideburns.

According to Seth Miller, executive director of the Innocence Project, the victim’s uncle, an assistant principal at Lake Wales High School, led the boy to believe the description sounded like Bain. Investigators too, Miller asserts, led the victim to identify Bain by asking him to pick out “Jimmie” Bain, not his attacker.

The Innocence Project was unsuccessful in its first four petitions to have DNA testing ordered on the semen in the victim’s underwear.

According to the advocacy group, witness misidentification and faulty forensics are two of the leading causes of wrongful convictions. Witness misidentification contributed to nearly 80 percent of the 245 wrongful convictions later overturned by DNA testing nationwide.

“Seems like it took a lot (of praying). Some people let out of prison killed three or four people walking around the streets,” Kenneth added. “Lord it’s funny. I never understood the law.”

Bain's 77-year-old mother, Sarah Reeves, attended Thursday’s press conference.

"I didn't think I was going to make this day," said Reeves, who is poor health. "And I'm praying to God to help get him out so I can still be here. He's a good son."

If Bain gets out of prison, his mother said, the family would "celebrate all night."

“We are going to have a party,” his father added. “All of the family will get together and have a shindig.”

Sister Jannie Jones – Bain’s twin and together with him the youngest of Bain brook – had always been confident that DNA testing would someday exonerate her brother.

"Thirty-five years of his life is gone," she said. "He'll never get that back. We're going to move on, and we'll be there for him."

The victim, now 45, lives in Central Florida, the St. Petersburg Times is reporting. A veteran of the Marine Corps, he has served time behind bars for several offenses. The newspaper quotes his father as saying he is “very upset” by the development.

Source(www.lakewalesnews.com)

D’Alemberte Petitions for Innocence Commission

Former American Bar Association President and prominent Tallahassee lawyer Sandy D’Alemberte filed a petition with the Florida Supreme Court Friday asking it to establish a commission to investigate how wrongful convictions occur.

D’Alemberte, a former Florida State University President who still teaches at the law school, wants the high court to establish have the panel examine cases where people were wrongfully accused and convicted to see what goes wrong in those cases and how the state can improve.

The system, he said, unfortunately fails and sometimes the wrong people get sent to prison.

“They also leave guilty people out on the streets and we destroy families,” he said.

His ideal commission is modeled after one that was established in North Carolina in 2002. The North Carolina commission includes judges, representatives of the Governor’s office, defense attorneys, law enforcement representatives, prosecutors, law professors and victim advocates. It also included a journalism professor and two general interest representatives.

In addition to North Carolina, California, Connecticut, Illinois, New York, Pennsylvania, Texas and Wisconsin also have similar commissions.

But even if the court does like the idea, he could run into a money issue. Funding for the court system, provided mostly by the state Legislature, has been low in recent years, meaning layoffs and cuts throughout the system as a whole. Finding money to establish a commission could be tricky.

“I guess my answer is a question,” D’Alemberte said. “Can we afford to neglect the idea that we’re convicting innocent people? Because, it’s a pretty expensive process to go through these wrongful convictions.”

Florida, like other states, has had high profile cases where people were wrongfully convicted of serious crimes.

Juan Melendez, a Puerto Rican immigrant, has been crisscrossing the country since 2002 after he was freed from a Florida prison where he spent 17 years, serving a sentence for a murder he didn’t commit. He was in Tallahassee in September for a forum at Florida State Law School talking up an ABA report suggesting ways to address wrongful convictions – particularly in death penalty cases –- in Florida. One of the suggestions was the establishment of a commission to investigate wrongful convictions.

And in Illinois, there is a moratorium on the death penalty because of the revelation of several wrongful convictions. Former Gov. George Ryan declared the moratorium in 2000 and his successors have not lifted it. Prosecutors can still seek the death penalty, but at the moment, no prisoner in Illinois would actually be put to death.

D’Alemberte said he has already gotten some big name support for the idea. Recently retired Florida Supreme Court Justice Harry Lee Anstead as well as other former Supreme Court Justices Arthur England and Gerald Kogan have all signed on to the idea, he said. He’s also been talking to other members of the Florida legal community about the idea and said the feedback has been good so far.

“I think we ought to be looking at cases where exoneration has already taken place and see what went wrong with these cases,” he said. “What can we do to improve these procedures?”

Source(www.jaxobserver.com)

We need to know why innocent people are sent to prison

It took 35 years for the criminal justice system to face the fact that it had wronged James Bain, a man convicted of the heinous crime of raping a 9-year-old boy in Lake Wales and sentenced to a lifetime behind bars. For nearly a decade Bain was denied requests for a DNA test on the evidence. It took a state attorney finally agreeing this year for the test to be done. The results ruled Bain out as the perpetrator.

Bain joins at least 11 other Floridians who were convicted of crimes and imprisoned only to be later found factually innocent of the offense in recent years. The revolution in DNA testing makes it possible to identify these miscarriages of justice with absolute certainty, but it doesn't say anything about how these errors occurred. Florida needs a commission to study these cases, breaking them down to see the system's flaws, just like the National Transportation Safety Board analyzes every plane crash.

On Friday, a group of renowned attorneys that includes former Florida Supreme Court justices, former presidents of the American Bar Association and former Florida Bar leaders, petitioned Florida Supreme Court Chief Justice Peggy Quince for the formation of an actual innocence commission. The request is modeled after a similar undertaking in North Carolina that brought together judges, police, prosecutors, defense lawyers, victims' advocates and academics for a two-year review of procedures in the criminal justice system. The commission isolated factors that helped lead to wrongful convictions and recommended changes.

Bain was convicted largely on the strength of the victim's eyewitness testimony. That sort of account by eyewitnesses has incredible power to sway juries even though it is notoriously faulty. Bain's blood type didn't match the semen found on the victim's underpants. He also had an alibi: Bain and his sister had been at home watching television when the crime occurred. But a jury convicted him anyway. Bain was 19 years old at the time and had no prior criminal record.

An innocence commission would comprehensively evaluate investigatory and court procedures, including those for eyewitness identification in cases like Bain's, and suggest new safeguards. According to the Innocence Project of Florida, witness misidentification contributed to almost 80 percent of the 245 convictions later overturned by DNA testing nationwide. (The Innocence Project works to find and free innocent people imprisoned in Florida. An actual innocence commission would look at established cases of wrongful conviction to determine what went wrong within the criminal justice system.)

The timing of a commission is important. Florida needs to know why it sends innocent people to prison, whether through individual errors or systemic problems. With DNA testing leading to exonerations of the wrongly convicted with increasing frequency, this is an ideal moment for public acceptance of a commission and its findings.

Once these old cases of injustice proved through DNA testing are exhausted there won't be another opportunity to demonstrate actual innocence with the same level of certainty. But there are still plenty of crimes such as embezzlement, where wrongful convictions occur but DNA is typically not part of the proof. In order to prevent these kinds of injustices, the nuts and bolts of the criminal justice system need reform.

Talbot "Sandy" D'Alemberte, former Florida State University president and a former ABA president, is behind the push for a commission. He points out that the state high court has regularly investigated administration of justice issues. Earlier efforts include commissions looking into racial bias in Florida courts, the impact of cameras in state courts and whether attorneys should be required to report their pro bono hours. An innocence commission falls within the court's scope of duties, and its establishment was one of the lead recommendations of a 2006 report from the ABA Florida Death Penalty Assessment Team. It's time to get started.

When an innocent person goes to prison it is a tragedy for society as well as for the wrongfully convicted and his family. His life is ruined, taxpayers pay for his upkeep and the real criminal is still at large. Florida needs to know how and why these mistakes happen so another innocent person doesn't spend most of his adult life behind bars.

Source(www.tampabay.com)

Marianna Quad Murderer Wesley Williams Receives Four Life Sentences

One of the most notorious murder trials in the Panhandle is now over.

This morning Circuit Judge William Wright sentenced convicted Marianna Quad Murderer Wesley Williams to four consecutive life-in-prison terms followed by three, 30-year terms for aggravated child abuse. Back in October, a jury found him guilty of the March 17, 2005 murders of 19-year-old Danielle Baker and her three sons.

Baker's mother and father addressed the court for the first time today.Convicted killer Wesley Williams walked into Friday's courtroom with the same attitude he's displayed throughout the whole trial. He even managed to crack a smile while a prison guard took his fingerprints. But there was nothing funny about Friday's sentencing, which the victim's family had waited to see for four long years.

"It's really been hard for our family, the entire family has been affected, the whole community has been affected by this crime." LeVaughn Baker told the court how he will never have a chance to be a grandfather to Amad, Amarion and Aaron Baker. Two months ago, a jury found Wesley Williams guilty for the March 17, 2005 murders of 19-year-old Danielle Baker and her three sons. Baker was shot in the head while the boys suffocated to death from duct tape.

"It was so cruel what happened to my babies. Cruel is really not the word to say what happened to them." Baker's mother, Doreen Jackson, says she tried to give Williams the benefit of the doubt.

"I sat here everyday, and I listened and I watched. And I came to my conclusion: he was guilty, he was guilty from day one." Jackson then explained to the court why she didn't want the death penalty.

"If we don't find out who the other people are, it's okay with me. You hold it in and you sit in your bed and you lay in it. But I do want him to live, I want him to realize what he's done." Circuit Judge William Wright even said he believed Williams deserved to die. However, while the evidence placed Williams at the murder scene, it didn't prove he actually committed the murders himself. "The crime in this case, the crime that was proven by the State, calls out for the death penalty. I cannot understand the actions that you took that night, they will never be explained to me."

Wright then sentenced him to the maximum penalty allowed under Florida law: four consecutive life sentences and three, 30-year terms for aggravated child abuse. "...count three as to first degree murder, I'm gonna sentence you to life in prison without being eligible for parole." But Public Defender Walter Smith says there's still no proof his client is guilty.

"Sometimes we overlook the first step which is we have to prove his involvement beyond a reasonable doubt before we even reach the issue of the penalty. And I don't think in this case, his involvement was ever proven."

Wesley Williams may never live life as a free man again. But he enters his prison sentence still holding onto the biggest secret of all: who else participated in killing Danielle Baker and her three boys? Smith says he's already in the process of appealing the case.

Source : www.wjhg.com

DNA finding raises questions about how rape case was handled

There are many questions surrounding the case of 54-year-old James Bernard Bain, the Polk County man who may be exonerated by new DNA evidence in his 1974 rape conviction.

How could an innocent 19-year-old be convicted of raping a 9-year-old boy? Why did the 9-year-old identify Bain as his attacker? Is the real rapist still out there?

The 1974 case centered around semen samples taken from the underwear of the victim. According to the Innocence Project of Florida, a group that fights to exonerate innocent prisoners, new DNA tests show those semen samples are not from James Bain.

Still, current State Attorney Jerry Hill says to put science aside for a second. The original trial didn't have the luxury of current technology and was handled appropriately.

"This case appeared to be tried, properly tried. He was well defended," Hill said.

Ed Threadgill was the original prosecutor on the case back in 1974. He's now 78 years old and living in Winter Haven. He says he doesn't recall many of the details of the 35-year-old case, but what he does remember is that the victim identified James Bain as the rapist.

What the Innocence Project and Bain's family wonders is whether investigators or one of the victim's family members planted the idea of Bain as the assailant in the victim's mind.

According to a deposition with the victim, which was taken in May 1974, one of Bain's defense lawyers asked the boy, "Do you know for sure whether or not it was Jamie Bain or did your uncle say 'It sounds like Jamie Bain'?"

The victim responds: "No. Did I say that? Because he didn't say that."

Later in the deposition the defense lawyer asks, "Did he tell you he was the one who did it?"

"No", the boy responds.

"Could you be mistaken?" asks the attorney.

"Yes, sir."

"You could be mistaken?"

"Yes, sir."

James Bain's family says he's always maintained his innocence, and now they want the system to quickly make things right.

"No sense in sitting back and standing back and saying, 'The DNA doesn't match, and I'm going to run it through another 400 times.' Thirty-five years I think is enough time," said Bain's brother-in-law, Harry Amos.

Jerry Hill says his office will not be combing through every detail of the original case. Their focus is on reviewing the new DNA evidence and determining if any more tests need to be done or if filing motions to release James Bain comes next.

"We're not in the business of trying to keep the wrong people behind bars," Hill said.

Source : www2.tbo.com

Mistrial declared in neo-Nazi murder trial

NEW PORT RICHEY, FL -- The jury in the trial of self-proclaimed neo-Nazi John Ditullio has told a judge it is unable to reach a verdict Friday night.

The jury began deliberating around 1 pm, then came back into the courtroom around 9 o'clock, and said they were at an impasse.

Circuit judge Michael Andrews then instructed the 12 jurors to go back and continue their deliberations. At 10:45 pm the jury re-entered the courtroom and again said they could not reach a unanimous verdict.

When the jurors were polled the foreman said they voted 10-2 in favor of an acquittal.

Lawyers for both sides refused to make any closing arguments after testimony wrapped earlier Friday.

But the bombshell was a surprise witness who testified for the defense.

Samantha Troupe took the stand and told the court she lived in the American Nazi's compound on Teak Street in New Port Richey. She said she is currently engaged to the group's former leader, who is in prison.

Troupe testified that one year after the 2006 murder, another member of the American Nazi's, Shawn Plott, told her he was responsible for the attack that left a teenager dead and a woman seriously injured.

"He said he feels bad, and I asked him why," said Troop. "And he said, because he (Plott) did this and it's wrong for this kid to go down but it doesn't matter anyways because he (Ditullio) would never had made it as a Nazi."

State attorney Mike Halkitis questioned her credibility, citing inconsistent statements given to investigators in the past.

Troupe said she was nervous taking the stand because she is afraid of Plott, who is currently a fugitive.

Thursday, the prosecution rested its case, and Ditullio took the stand in his own defense.

He says he became close with several members of a Pasco neo-Nazi group, but he was not the one who viciously attacked Patricia Wells and killed 17-year-old Kristofer King.

Earlier, a former member of the group testified against Ditullio. Cory Patnode said Ditullio told him "word for word" that he committed the crime.

Brandon Wininger, Wells' son and a friend of King's, also testified in the case, saying that the men who lived in the neo-Nazi compound shouted slurs at him because he is gay.

Source: www.abcactionnews.com

State rests in Hoffman-murder trial

After four days of mostly uncontested testimony from 30 witnesses, prosecutors rested their case Thursday afternoon in the murder trial of Deneilo Bradshaw, one of two men accused of killing police informant Rachel Hoffman.

The trial was anticipated to take up to three weeks, but most of the evidence and testimony presented by the state has gone unchallenged by Bradshaw's defense team. The two sides have been collegial and proceedings have been swift.

After a day's break today, Bradshaw's defense team is set to present its case at 9 a.m. Monday. Attorneys plan to call six witnesses, which are anticipated to take about a half-day to testify. Closing arguments are expected to begin Tuesday morning, with jurors to begin deliberations in the afternoon.

If jurors return a guilty verdict, the case will enter a penalty phase. Bradshaw, 24, faces life in prison or death by lethal injection. Jurors would recommend the sentence; the judge is to give it great weight, then make the call.

Bradshaw could be found guilty of first-degree murder if jurors find Hoffman's killing was premeditated or if it was the consequence of a robbery. If he carried out the actual killing or was the principal player, he could face the death penalty.

Limited sequester

Before the state put its final five witnesses on the stand Thursday, Walker ordered jurors to a limited sequester, forbidding them to go to work until they are discharged from the case.

His move came after learning that one of the juror's employer threatened to dock pay because court broke Wednesday at about 2:30 p.m., and the juror did not report to work. Because of the speed of the trial, accommodating witness scheduling has sometimes required long lunches or early breaks.

"It is incomprehensible to me that the employer is punishing them for meeting their civic responsibility," said the incensed judge. "I think it is abhorrent."

Walker threatened to have his "friends in the green" — sheriff's deputies — haul employers who penalize jurors before him in court.

Source: www.tallahassee.com

New DNA evidence might free man convicted in 1974 Polk rape

Thirty-five years ago, a 9-year-old boy was raped in a field near his Lake Wales home. Five months later, a 19-year-old man was convicted of the rape and sent to prison for life.

Now, DNA tests show he was the wrong man.

"Thirty-five years is a lifetime. We hope the state won't prolong James Bain's incarceration," said Seth Miller, executive director of the Innocence Project of Florida.

Of the 245 people in the United States exonerated by DNA evidence since 1989, not one has spent as much time in prison as James Bain.

The State Attorney's Office for the 10th Circuit received the DNA results Wednesday afternoon.

"We're looking at them to determine what to do next," Assistant State Attorney Chip Thullbery said. "We're asking how does this match up with the case. And we'll have to review the case and see. We're also asking do we want to run (the semen) through a different lab."

• • •

On March 4, 1974, the boy was sleeping in a queen-sized bed between his sisters, 10 and 11, when a man crawled through an open window and quietly lifted him out of bed.

The boy didn't wake up when the man carried him out the door and through an orange grove to a baseball diamond in an open field. He didn't wake up till the man laid him in the dust and yelled at him to pull down his pants.

Later, the boy told police the man said he thought he was a girl, because his hair was pin-curled with bobby pins.

"He made me turn over," the boy said.

Within an hour the parents discovered their child missing and called police. Police searched the nearby orange grove and found nothing. The boy staggered home, dazed. He was wearing the white T-shirt and underpants he had worn to bed, his underwear now wet with semen. A medical examination showed a badly torn rectum.

That night, police said the child described the rapist this way: "Bushy sideburns … 17 or 18 … he said his name was Jim."

The boy's uncle, who was at the house, said the description pointed to Jimmy Bain.

Jimmy Bain, 18, who had been a student at the high school where the uncle was assistant principal. Jimmy Bain who had bushy sideburns and rode around town on a motorcycle. Jimmy Bain, whom the boy said he had seen before, though it was hard to describe him because he wore a helmet.

Police went to Bain's home and took his picture. They mixed it in with color Polaroids of four other young men. The boy picked Bain.

Later, in a deposition, the boy described how he identified his attacker to a police officer.

"He asked me can I pick out Jimmie Bains," the boy said. "And I picked him out."

He said it was the same man who took him out to the ball park.

At trial, an FBI analyst testified that the semen on the underpants came from a person with blood group B. Bain's blood group is AB, but the analyst said Bain could not be ruled out as the person who deposited the semen. A defense expert testified that because Bain's blood group was AB with a strong A factor it ruled him out as a suspect.

Bain, who had no previous criminal record, provided an alibi. He and his sister told police they were at home watching TV together at the time the boy disappeared. The jury convicted him anyway.

• • •

In 2001, Bain twice requested DNA testing of the boy's underwear. The requests were rejected. He asked again in 2003 and 2006 and was denied both times. In July of this year, Bain requested DNA testing again. This time a Polk County judge granted the motion.

From the DNA Diagnostics Center report dated Dec. 9:

"The partial DNA profile obtained from item 01.C.1s (section from underwear sperm fraction) is not consistent with the DNA profile from James Bain."

Innocence Project attorney Melissa Montle called Bain, 54, at Okeechobee Correctional Institution to tell him the news.

"I always knew I was innocent," Bain was quoted saying. "I've been waiting well over half my life for this miracle. I hope to be back with my family real soon."

Attorneys for the Innocence Project said they expect to file a motion soon to have Bain's conviction vacated and asking that he be released.

The victim, who is now 45 and lives in Central Florida, refused to talk to the St. Petersburg Times. But his father (who asked not to be identified to protect his son) said that his son "is very upset by the news."

Because he still believes Bain raped him, or because it appears the wrong man was convicted?

"Now, we can't be sure," said the father.

The victim was in the Marine Corps for over five years in his 20s. His father described him as "disciplined and upstanding until he fell apart."

Florida Department of Corrections records show that by his mid 30s the victim was going in and out of prison for cocaine possession and theft.

"Once, on the way to rehab, he told me he couldn't shake the rape," said the father.

In August 2006, prison records show that the victim and Bain were at the same prison. The victim requested and got a transfer.

Now, the father says: "We don't know what to think, and we have nothing more to say. This whole thing is a tragedy all the way around."

Source: www.tampabay.com

DNA evidence could free man in prison for 35 years

James Bain's mother, 77 years old Sarah Reed, speaks to the media at an afternoon press conference.

He was sentenced to life in prison in the rape of a Lake Wales boy, but James Bain always said he was innocent.

Now, 35 years later, new DNA evidence backs up the inmate's claim.

The results show that Bain's DNA does not match any samples on the victim's underwear, according to a report released Wednesday by the Ohio-based DNA Diagnostics Center.

"I always knew I was innocent," Bain, now 54, said in a news release. "I've been waiting well over half my life for this miracle. I hope to be back with my family real soon."

Attorneys for Bain, and the Innocence Project of Florida which took on the case, say they are working to free Bain from the Okeechobee Correctional Institution and reunite him with his family by Christmas.

A motion for a post-conviction release will be filed within the next couple of days, Bain's attorney, Bob Young, said.

The Innocence Project screens and investigates cases with strong evidence – typically biological evidence – that a person has been wrongly imprisoned, executive director Seth Miller said.

Bain was 19 years old when he was convicted of rape, kidnapping and breaking and entering.

"Thirty-five years of his life is gone and we'll never get that back," his sister, Jacqueline Bain, said at a news conference in Bartow this afternoon. "But we're here for him. He's going to be alright."

Polk County State Attorney's Office spokesman Chip Thullbery said his agency has received the DNA test results and is reviewing the facts of the case.

"We simply want to do the right thing," Thullbery said. "We're not going to rush to judgment."

Prosecutors may ask a different lab to run another test, he said.

Court records show that the victim, then 9, remembers falling asleep on a bed with his siblings on the night of March 4, 1974. The boy said he didn't recall being taken out of his mother's Lake Wales home but awoke to see a man dragging him by the arm.

The man took him past a baseball diamond and stopped on a dirt road, the boy said. The man slapped him, forced him to the ground and raped him.

The man ran off and the boy wandered back to his house wearing only a T-shirt and jockey underwear.

The boy said his attacker had bushy sideburns and a mustache. The victim's uncle, a former assistant principal, said the description sounded like Bain, whom the uncle knew when Bain was a student at the local high school, court records show.

Detectives showed the boy photographs of possible suspects, including Bain. Detectives did not ask the victim to identify the attacker and instead asked him if "I can pick out Jimmy Bain," the boy said in his deposition.

Court records show that police denied asking that question and said they simply showed the victim five photographs and that the boy pointed to Bain's.

Police went to Bain's home that night and arrested him. His sister Jannie Bain testified that she and her brother were watching television during the time the boy was raped.

At the trial, the jury heard conflicting testimony about blood samples taken into evidence and rejected Bain's alibi in favor of the boy's eyewitness identification, Young said.

Bain has filed motions for DNA testing since 2001 but was denied each time. The Polk state attorney's office agreed to the testing in October.

The key piece of evidence—the boy's underwear—had been stored for more than three decades at the Polk County Clerk of the Circuit Court yet the DNA samples had not degraded, Young said.

Since 2003, the Innocence Project has helped exonerate 245 inmates nationwide through DNA evidence. Out of that number, Bain has served his sentence the longest, Miller said.

Source(www2.tbo.com)

Death penalty still on the table in trial of suspect in Hoffman case

Deneilo Bradshaw sits stoically during the fourth day of his murder trial on Thursday. Prosecuting attorneys called their last witnesses in Day 4 of the Hoffman murder case on Thursday, December 10, 2009. One of the witness, FDLE investigator J. Cesar Saldanha, told the jury that Bradshaw led investigators to the body of Rachel Hoffman back in May of 2008.

Deneilo Bradshaw faces the death penalty if found guilty of killing police informant Rachel Hoffman, despite an appeal by his defense team Friday to remove the punishment as an option.

Defense attorney Greg Cummings argued before Circuit Judge Mark Walker that the death penalty would be inappropriate in Bradshaw's case because the 24-year-old did not pull the trigger on the gun that shot Hoffman five times nor did he intend to kill her.

But Walker sided with Assistant State Attorney Eddie Evans, who said evidence presented during this week's trial showed that Bradshaw and his brother-in-law Andrea Green were equally culpable for Hoffman's death. Green is being tried separately in October for her murder.

Bradshaw, not Green, was working at the car tinting and detailing shop the day the gun used to kill Hoffman was stolen, Evans said. It was Bradshaw who talked to the 23-year-old that day about her purchasing a gun. In addition, Evans said, Bradshaw was in Hoffman's vehicle before and after she was killed and had some of the money police gave Hoffman to buy drugs and a gun from the men in the botched drug sting operation that led to her death.

"At this point," said Walker, citing U.S. Supreme Court precedent, "there is supporting evidence that there was major participation (by Bradshaw) and there was reckless indifference."

Without elaboration, Walker also denied a defense motion for acquittal. Defense attorney Clyde Taylor argued that Bradshaw did not go to Gardner Road to rob Hoffman — an offense that triggers a felony murder charge — but simply to sell her drugs and gun.

"You have absolutely nothing that shows a state of mind intent to rob Hoffman or that this defendant knew a crime, i.e, a homicide, was to occur on May 7, (2008)," Taylor said.

Evans countered that the behavior of the men after Hoffman was killed showed they intended to rob her. He pointed to the fact that while Hoffman was to buy 2 ounces of cocaine and 1,500 Ecstasy pills from the men, they didn't bring the drugs.

"When you look at someone's subsequent actions, you can see their intent," Evans said.

Bradshaw's murder trial resumes Monday with his defense team putting on its case. Jurors are expected to begin deliberating on Tuesday.

Source: www.tallahassee.com

Jury deadlocks in tattooed neo-Nazi's murder trial

NEW PORT RICHEY, Fla. -- A Florida judge has declared a mistrial in the murder trial of a neo-Nazi whose tattoos were covered up for the courtroom by a state cosmetologist.

After deliberating for 10 hours Friday, jurors told Circuit Judge Michael Andrews they were deadlocked. Ten jurors believed John Allen Ditullio was not guilty, while two believed he was the masked man who fatally stabbed one person and injured another in a mobile home in 2006.

Prosecutors had sought the death penalty. They are expected to retry Ditullio on charges of first-degree murder and attempted first-degree murder.

Ditullio has a large swastika, barbed wire and a vulgarity tattooed on his face and neck. Acting on a request by Ditullio's lawyer, Andrews ruled that the tattoos could sway a jury's opinion and ordered them covered.

Source(www.miamiherald.com)

Petition calls for creation of Florida innocence review board

The Florida high court has been asked to launch an investigation into why several people have been wrongfully convicted in the state.

TALLAHASSEE -- Former Florida State University president Talbot ``Sandy'' D'Alemberte filed a petition with the state Supreme Court on Friday asking for a commission to investigate wrongful convictions.

``I think it's just strange to see all the recent exonerations and not try to learn something about the mistakes we've been making,'' said D'Alemberte, who also is a former state lawmaker and former president of the American Bar Association.

The 18-page petition, signed by nearly 70 lawyers including some former state Supreme Court justices, calls for creating the Florida Actual Innocence Commission modeled off a system in North Carolina by the same name.

Such an idea is not new, but D'Alemberte cites the recent cases of Alan Crotzer, Wilton Dedge and nine others who were exonerated after being imprisoned. It also came a day after the Florida Innocence Project announced it has new evidence to clear a Polk County man, James Bain.

D'Alemberte, a prominent Tallahassee attorney, had harsh words for the Florida Bar Association, who he feels needs to do more to police the lawyers involved in these cases.

``I am shocked the Bar hasn't opened ethical inquiries into these recent cases,'' he said. ``I'm surprised they haven't shown more interest in the way the criminal justice system works.''

Rules allow a group of 50 or more attorneys to petition the court for a rule-making procedure and D'Alemberte said this commission would mirror similar ones that looked at the issues of racial and gender bias in the court system.

At least eight other states have innocence commissions.

The one in North Carolina makes recommendations for addressing issues like mistaken witness identifications and false confessions to decrease the possibility of convicting innocent people.

D'Alemberte acknowledges that funding such an entity is a likely roadblock, given the recent budget cuts to the court system.

Source www.miamiherald.com

Testimony to begin in Hoffman murder trial

By Jennifer Portman
Democrat Senior Writer

Nineteen months to the day that Rachel Morningstar Hoffman was shot to death on a dead-end Leon County road, one of two men accused of killing her will stand trial.

Testimony begins Mionday in the capital murder case against Deneilo Bradshaw.

Police say Bradshaw and his step brother-in-law Andrea Green agreed to sell Hoffman, a 23-year-old first-time confidential informant for the Tallahassee Police Department, cocaine, Ecstasy and a stolen, sticky-triggered handgun in a failed drug sting operation that ended in her death.

Thirty-six hours after 19 law enforcement officers lost contact with Hoffman when she disobeyed orders and followed the men to Gardner Road with an ultimately useless wire and $13,000 stuck in her purse, police say Bradshaw and Green led them to her body dumped in the woods outside Perry.

Courtroom 3-G at the Leon County Courthouse is expected to be packed with spectators Monday, including Hoffman’s mother and father and family members of Bradshaw, 24, who grew up in the Virgin Islands, moved to Tallahassee in 2004 and lived in tony Summerbrooke, not far from where Hoffman was killed.

“I have to come to the trial,” said her mother Margie Weiss. “As painful as I expect the evidence to be, I am her mother.”

Bradshaw’s family watched jury selection last week, and will be there again this week.

“We are confident that God’s will is going to be done in this trial, and we are confident that justice will be served, ” said Bradshaw’s stepfather Karey Freeman.

“The battle is not ours, it is God’s and we stand in the power of his might.”
Bradshaw’s parents said if possible, they will greet the Hoffmans.

“Our son is a sweet young man that has a heart for God now,” Freeman said of Bradshaw, who has two young daughters. “We have a lot of compassion for the position that (the Hoffmans) are in.”

Circuit Judge Mark Walker will preside over the trial, which is expected to last two to three weeks. It is the 41-year-old judge’s first capital murder trial. Green, 27, of Perry, is to stand trial separately before the judge in October.

Bradshaw is being represented by a team of three defense attorneys led by Chuck Hobbs, who in late October demanded a speedy trial for their client.

Hobbs, also working on his first death-penalty case, is perhaps best know for representing some members of Kappa Alpha Psi fraternity two years ago in a high-profile hazing case. He is being assisted by Clyde Taylor and Greg Cummings, both seasoned defense attorney with extensive experience representing defendants in capital cases.

Veteran Assistant State Attorney Frank Allman will be presenting the case for State Attorney Willie Meggs. Allman will be assisted by Meggs’ Chief Assistant State Attorney, Georgia Cappleman and longtime Assistant State Attorney Eddie Evans.

So far, interactions between the legal teams have been mostly affable. Juror interviews were punctuated with lighthearted exchanges. Despite concerns about the impact of pretrial publicity, the attorneys were able to agree without rancor on a panel of 15 – a dozen jurors and three alternates - in three days.

The jury of seven women and five men includes a state department attorney, an apartment manager, a recent FSU history graduate and a paramedic. The jurors include one black woman and one black man.

Attorneys on both sides have agreed to not discuss details of the case outside of what they present in court. Late last week, the lawyers conceded to discuss procedural matters with the news media, but nothing more. Much of the pretrial evidence that typically would be released has been under seal to help ensure that an unbiased jury could be seated in the county.

Beginning today, details about what happened to the free-spirited copper-haired girl who got in trouble for selling pot and agreed to help police to work off her charges, will finally begin to be revealed to the public.

Her parents, who are suing the city for the wrongful death of their only daughter, plan to come from their homes near Tampa and stay for the duration of the trial.

They will hear it all.

“I can’t change things,” said Irv Hoffman, who along with Weiss fought for passage this year of Rachel’s Law, the nation’s first law designed to protect confidential informants. “I just want to be the face and voice of Rachel.”

U.S. Supreme Court to decide: Were Tampa police clear about suspect's Miranda rights?

Nation follows Tampa case

By John Frank, Times/Herald Tallahassee Bureau

Published Sunday, December 6, 2009

Inside a small interview room at the Tampa Police Department in August 2004, an officer read Kevin Dewayne Powell his rights.

Among them: "You have the right to talk to a lawyer before answering any of our questions. … You have the right to use any of these rights at any time you want during this interview."

It's a portion of the ubiquitous Miranda warning, a fundamental element of the criminal justice system and one now ingrained in the American psyche thanks to television cop dramas.

But it's a little more complicated than what is shown on TV. The Supreme Court, which required that suspects be made aware of their rights through its Miranda ruling in 1966, has resisted establishing a template for the warning. So different jurisdictions have various, though similar, Miranda warnings.

"On the surface it seems like a simple rule, but it has spawned a lot of litigation over the meaning of the words," said Richard Leo, a law professor and author on the issue.

Powell's case is no different. The U.S. Supreme Court will hear oral arguments today about whether the Tampa Police Department adequately advised Powell of his right to an attorney.

Law enforcement agencies nationwide are expected to closely watch the hearing and subsequent decision, which could affect an untold number of cases.

Police arrested Powell on a charge of possession of a firearm by a convicted felon when they saw him leaving a room where they found a gun hidden under a bed. Powell signed a form acknowledging his rights and confessed to owning the gun.

At trial, he reversed himself, explaining that the police officers threatened to arrest his girlfriend and take away her children if he didn't take responsibility. A jury convicted him and the judge sentenced him to 10 years in prison.

The state's highest court, in its September 2008 ruling, said authorities needed to expressly convey the right to have an attorney present during questioning. The Tampa police's warning "suggests to a reasonable person in the suspect's shoes that he or she can only consult with an attorney before questioning," the opinion stated.

Florida Attorney General Bill McCollum asked the U.S. Supreme Court to intervene, calling clarification of the issue "crucial."

"The Florida Supreme Court … is demanding more from law enforcement than (the U.S. Supreme Court) ever envisioned or deemed necessary in Miranda," the state's argument reads, citing the landmark decision.

Tampa police no longer use the exact warning in question. But a handful of cases in Florida, including the death penalty case of Thomas Rigterink of Winter Haven, are pending a clarification of the Miranda standard.

McCollum's chief of staff, Joe Jacquot, 39, will argue the state's case in Washington. He is asking the court to determine that the spirit of the warning is more important than the actual language.

"The goal of Miranda is to ensure voluntary confessions," said Jacquot (pronounced Jay-co). "I would imagine that in law enforcement agencies across the nation every day there is a missed word or inconsistent translation … those confessions need to be protected."

The case is Jacquot's first before the high court, but he will get support from the U.S. Solicitor General's Office, whose interest in the case suggests its importance for the law enforcement community.

Attorneys in Florida and criminal law experts are looking to the Supreme Court to distill the necessary wording.

"There's not much clarity here," said Wayne Logan, a law professor at Florida State University. "What we need here is something more structural to get rid of the word parsing."

The view is echoed by Leo, the professor at the University of San Francisco and an expert on Miranda law. He conducted a study that found 89 out of 90 law enforcement agencies in Florida included the words "during questioning" in their warnings.

He filed a brief in the case supporting Powell, that argued if the state wins the case, it would create incentives for law enforcement to experiment with the Miranda warnings to generate more confessions.

"The Supreme Court has completely emasculated the law in the past and created a number of loopholes for law enforcement."

John Frank can be reached at jfrank@sptimes.com or (850) 224-7263.

Enoch Hall's Lawyers To Argue Against Death Penalty

Hall Convicted Of Killing Corrections Officer In 2008

POSTED: 11:26 am EST December 7, 2009
UPDATED: 11:33 am EST December 7, 2009

DAYTONA BEACH, Fla. -- Lawyers for the inmate who killed a correctional officer will argue against the death penalty today.

A jury recommended that sentence for Enoch Hall after he was found guilty of murdering corrections officer Donna Fitzgerald last year at Tomoka State Prison.
On Monday his defense team will tell the judge why Hall should not be put to death.

Florida to take up texting-while-driving bill again

By Tom Baxter
Southern Political Report
December 7, 2009 —

Over the past two year, Florida legislators have filed bills that would ban texting while driving, but none have made it over the finish line. The next regular session could be different, however.

With a Virginia Tech University study indicating the practice dramatically increases the risk of accidents, over a dozen bills cracking down on the practice has been filed, and Gov. Charlie Crist is in favor of a ban.

Meanwhile, a new law went into effect last week in North Carolina which could land texters a $100 fine, court costs and insurance points if they're caught driving while punching away at a cell phone. The state highway patrol says it has no plans for an organized crackdown, however.

-- Is the air slowly leaking out of the effort to impeach South Carolina Gov. Mark Sanford? Last week, after a state House panel said it wouldn't consider 28 of the 37 charges brought against Sanford by the State Ethics Commission, a Rasmussen poll was released which shows the percentage of South Carolinians who think he should be removed from office has dropped from 40 percent to 36 percent.

-- The recession has been good news for Virginia offenders who might face the death penalty. With a $3.5 billion budget fall facing the state, prosecutors have been more reluctant to take on the costly process of seeking the penalty in capital crimes. The head of the Richmond area capital defenders office has even proposed a moratorium on the penalty until the state resolves its budget problems.

-- Alabama is changing the company which administers its $380 million deferred compensation retirement plan for state employees, citing concerns about the relationship of the Alabama State Employees Association with the firm which has managed the plan for 30 years.

Follow Tom Baxter on Twitter.

Justices face facts

In blocking execution, Supreme Court acknowledges the truth of combat stress

December 07, 2009, 6:48 AM /
In a remarkable and relevant move by the U. S. Supreme Court, the death sentence for a decorated Korean War veteran has been unanimously overturned, suggesting a strong recognition that post-traumatic stress disorder has afflicted veterans of wars past and present.

This is an important topic, as soldiers continue to return from Afghanistan and Iraq, where many have been traumatized beyond our civilian imaginations. And, as was the case with Korean War veteran George Porter Jr., there are lingering wounds that never healed.

This page opposes the death penalty in any case. While the punishment may fit some crimes, it cannot be applied fairly or with any assurance that innocent people are not put to death.

But given that capital punishment is carried out, even enthusiastically, in many states, juries must not only be allowed, but required, to consider relevant evidence that may undermine the case for execution. The Supreme Court last week ruled that post traumatic stress disorder constitutes such evidence. It found that the Florida man’s “combat service unfortunately left him a traumatized, changed man,” as it stated in Porter v. McCollum.

Porter was convicted in the 1986 shooting deaths of his ex-girlfriend and her then-boyfriend in Florida during a drunken rage. At the time of sentencing, neither his lawyer nor the jury knew of his military service more than three decades earlier.

Both the Florida Supreme Court and the 11th U. S. Circuit Court of Appeals in Atlanta had upheld Porter’s death sentence, despite new information about his military record. As the high court said, those decisions were mistaken.

Such detailed information should be probed by defense attorneys, and the Supreme Court’s decision has put them on notice. “Our nation has a long tradition of according to leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did,” according to the opinion.

The relevance of Porter’s extensive combat experience not only had to do with the fact that he served honorably “under extreme hardship and gruesome conditions,” the Supreme Court stated, but that the jury might find mitigating “the intense stress and mental and emotional toll that combat took on Porter.”

What the court did not say is that PTSD automatically shields convicts from the death penalty. All it does is require jurors to know about it before reaching one of the most critical decisions most humans will ever make.

It is significant that the court determined Porter would have been diagnosed as suffering from PTSD, by today’s standards, and that it recited testimony from Veterans Affairs Secretary Eric K. Shinseki, who reported that 23 percent of soldiers who have served in Iraq and Afghanistan and sought treatment through the VA had been preliminarily diagnosed with PTSD.

The court sent the case back to the 11th Circuit Court, which would presumably order a new sentencing proceeding but the court’s order did not say what the justices expected. Perhaps what can be expected is improved recognition and consideration for veterans who have fought for this country and returned damaged from the experience, whether it is obvious surface injuries or those that require further probing.

Damas begins long legal road to murder trial

By DENES HUSTY III
dhusty@news-press.com

The first full fledged hearing for accused family killer Mesac Damas Friday signaled the start of a long legal process as prosecutors and defense attorneys prepare for trial.

Although a preliminary date of March 19 was scheduled for Damas, 33, the trial may take place long afterward because of complexities in the case. Those include intent by prosecutors to seek the death penalty, Damas’ confessions to authorities and the media, and questions about his mental state.

Damas, a former restaurant cook, is charged with six counts of first-degree murder in the slaying of his wife, Guerline Dieu Damas, 32, and their five children. The charges accuse Damas of slitting the throats of all six victims the night of Sept. 17, leaving their North Naples townhouse awash in blood.

Damas, wearing a bright-orange jail uniform, handcuffs and shackles, sat quietly during the hearing, except for saying “yes” in response to a question from Collier Circuit Judge Frank Baker. Damas also turned when a friend or relative said, “Mesac,” to get his attention.

In preparing for his trial, defense attorneys first have to wade through 390 pages of documents and arrange depositions for as many as 80 witnesses who prosecutors say may testify.

State Attorney Steve Russell told Baker he intends to seek the death penalty, which sets up a list of legal requirements and procedures.

Baker ruled Friday he and Deputy Public Defender Michael Orlando are qualified to handle a death penalty case. Baker said he complies with all judicial rules on being qualified to preside.

Orlando said only one of his clients received the death penalty and the conviction and sentence were overturned by the Florida Supreme Court. Russell, chief prosecutor, has handled death penalty cases.

“I wish they wouldn’t have” filed the notice to seek the death penalty, Orlando said. “I will prepare for that aspect of the case.”

Prosecutors weigh aggravating and mitigating circumstances when deciding to seek the death penalty. In this case, a panel of prosecutors at the state attorney’s office recommended Russell seek the death penalty.

Those include whether the killings were “especially heinous, atrocious and cruel” and whether the killings were committed in “a cold and calculated and premeditated manner,” said Lee Hollander, a defense attorney and former prosecutor and police officer.

Mitigating circumstances defense attorneys might consider are that the defendant was “under the influence of extreme mental or emotional disturbance,” Hollander said.

Another factor might be the defendant’s ability to comprehend “the criminality of his or her conduct ... was substantially impaired,” Hollander said.

Orlando also said complicating matters are Damas’ confessions to an FBI agent and reporters.

Damas has remained on suicide watch in the Collier County Jail since he was returned from Haiti, where he fled after the killings.

Orlando said he worries about his client’s mental state and Baker has appointed a clinical psychologist to evaluate Damas.

If Baker decides Damas is not competent for trial, he would be sent to a state hospital until he is deemed to be competent, Hollander said.

Prosecutors Must be Held Accountable for Misconduct

November 4, 2009
By John F. Terzano

Charged with dual roles as advocates and ministers of justice, prosecutors are the most powerful actors in our criminal justice system. They have sole responsibility for decisions regarding what charges to bring against an individual, what sentence to seek, what plea bargain to offer, and what evidence to present to a jury during trial. Clearly, these decisions have a lasting impact on all those under the purview of the justice system. However, despite the great power of prosecutors, few are held accountable for violations of their ethical obligations.

Today, the Supreme Court will hear oral arguments in Pottawattamie County v. McGhee, which is a wrongful conviction case about prosecutorial immunity. Specifically, the Court will decide whether the prosecutors in a 1978 murder trial may be sued as individuals for the wrongful conviction of Curtis McGhee Jr. and Terry Harrington. McGhee and Harrington allege that the prosecutors violated their rights by coercing false testimony during the investigation and using that testimony at trial. The attorneys representing the prosecutors in question argue that while prosecutors are immune from lawsuits when acting within the scope of their job, state bar and disciplinary agencies provide sufficient punitive mechanisms to punish prosecutors for misconduct. It has been our experience that state bars and disciplinary agencies fall woefully short of holding prosecutors accountable for their misconduct.

No matter the outcome of this particular case, it is yet another example of why it is so important for states to enact reforms to ensure that prosecutors who abuse their powers are held accountable for their actions. The Justice Project’s policy review, Improving Prosecutorial Accountability outlines suggested reforms such as the establishment of prosecutorial review boards to sanction prosecutors who abuse their power within the criminal justice system. Without the threat of meaningful professional discipline, prosecutors cannot be held accountable for their actions and are likely to continue to abuse their power to secure convictions, which threatens our public safety and the integrity of our criminal justice system.

Implementation of disciplinary measures that create a culture of accountability will result in a more fair and accurate justice system. Such measures will also encourage prosecutors to better fulfill their multiple and critical roles of convicting the guilty, protecting the innocent and guarding the rights of the accused. Until prosecutors face the real threat of discipline, such as fines, suspension, or even disbarment, it is likely that the egregious acts of prosecutorial misconduct that threaten our criminal justice system will only continue.

Mesac Damas appears in court, doesn't speak about death penalty

By RYAN MILLS

Originally published 09:03 a.m., December 4, 2009
Updated 09:07 a.m., December 4, 2009

Naples — Mesac Damas, who is accused of killing his family in North Naples, appeared in court today.

It was the first appearance of Damas since he was apprehended in Haiti and brought back to the Collier County jail back in September.

Damas’ only communication came when Judge Frank Baker asked if he understood the meaning of the procedure.

POSTED EARLIER

Accused of cutting the throats of his wife and five young children in September, 33-year-old Mesac Damas could pay the ultimate price — death — if convicted of the killings.

The State Attorney’s Office announced Thursday that prosecutors will seek the death penalty for Damas, who has confessed to the killings and previously expressed to a Daily News reporter his desire to die for the crimes. The notice of intent to seek the death penalty was filed in Collier County court on Thursday morning.

If sentenced to death, Damas would be only the second Florida inmate on death row in a Collier County case.

Damas remains on suicide watch in the Collier County jail, and has not been allowed any visitors other than his attorney since his September arrest, the Collier County Sheriff’s Office reported.

Collier County Deputy Public Defender Mike Orlando, who represents Damas, filed a not-guilty plea in September and said at the time that he had concerns about his client’s mental state. When reached for comment Thursday, Orlando had little to say about the state’s decision to pursue the death penalty.

“I would have preferred that they had not filed that, but that’s what they chose to do,” Orlando said. “I understand that and will prepare accordingly.”

Detectives say that sometime between Sept. 17 and 18, Damas left work, returned to his North Naples townhouse and cut the throats of his wife, Guerline Dieu Damas, 32, and their five children. He then fled to his native Haiti, where he was later arrested and returned to the U.S.

Family members on both sides were tight-lipped when asked Thursday about the possibility of Damas receiving the death penalty.

“I don’t want to talk about this,” Damas’ father, Jean Damas Sr., said before closing the door at his Naples Manor home.

Mackindy Dieu, 24, Guerline’s brother who is listed as a witness in the case, said he is not allowed to discuss it. Guerline’s mother, Thelicia Medor, also declined comment.

However, earlier in the day, Medor, who does not speak English, had her 12-year-old granddaughter, Sabrina Obsaint, return a call to the Daily News. She said the family is not sold on the death penalty.

“We wanted to see him live and suffer the consequences in jail,” she said.

The decision to file for the death penalty means that Damas will receive a second attorney for his defense and that he’ll undergo a penalty phase if convicted. During the penalty phase, the same jury that convicted him would decide whether to recommend Damas receive life in prison or the death penalty. They would weigh aggravating factors with mitigating factors offered by the defense.

Aggravating factors are defined in Florida law and include acts that are “heinous, atrocious and cruel;” acts that are “cold, calculated and premeditated;” acts in which a victim is under the age of 12; and those in which the offender is the parent of the victim.

Furthermore, under Florida law, each individual killing counts as a prior violent felony to the next.

David A. Brener, a Fort Myers criminal defense attorney, said all the aggravators listed above may apply to Damas. He said one mitigating factor stands above all others:

“Clearly this gentlemen is ill,” he said.

And though insanity is a notoriously difficult standard to meet, mental illness can play a major role in the penalty phase, Brener explained.

“In other words the jury can find him legally sane but mentally ill and therefore not deserving of the death penalty,” he said.

A status check is slated for Damas in court this morning, though Orlando said he doesn’t “anticipate Mr. Damas will be there.”

According to the Florida Department of Corrections, there are 387 inmates on death row in Florida.

If sentenced to death, Damas would join Brandy Bain Jennings as the only inmates with Collier cases on death row. Jennings was sentenced to death for his role in a 1995 triple homicide and robbery at Collier County’s Cracker Barrel restaurant.

Thomas Lee Gudinas’ was sentenced to death in Collier County in 1995. However, his case was moved to Naples from Orlando due to extensive publicity. Gudinas killed a former homecoming queen near a downtown Orlando bar in 1994.

Raymond Koon was sentenced to death in Collier County in 1982 for gunning down a U.S. Secret Service informant. In 2005, at 73 years old, he died in prison of natural causes.

In 2003, John Ballard, a suspected serial killer and former Golden Gate resident, was sentenced to death for robbing and killing two neighbors. However, the Florida Supreme Court vacated Ballard’s two murder convictions and his death sentence in 2006. He was last believed to be living in California.

Death penalty sought for man in family slain case

THE ASSOCIATED PRESS
NAPLES, Fla. -- Prosecutors will seek the death penalty for a southwest Florida man accused of cutting the throats of his wife and five children.

A state attorney's office spokeswoman said paperwork was filed Thursday morning declaring prosecutors' intentions in the case against 33-year-old Mesac Damas.

Damas is charged with killing his 32-year-old wife, Guerline, and their children who ranged in age from 19 months to 9 years old. Their bodies were discovered Sept. 19 in the family's Naples town house.

Damas has pleaded not guilty, although when he was arrested in his native Haiti he admitted his guilt to a reporter and said he wanted to be executed. Later he told investigators that "bad spirits" made him do it.

Michael King gets death penalty

By Todd Ruger

Published: Friday, December 4, 2009 at 1:00 a.m.

Circuit Judge Deno Economou this afternoon sentenced Michael King to die for the killing of Denise Amber Lee after a horrifying abduction and rape.

The judge sat behind the bench and read his written ruling, about 45 pages that detailed how he weighed all the aggravating and mitigating factors that went into his decision.

In the end, Economou declared that the aggravating factors that support a death sentence outweighed the mitigating factors that could have led to a sentence of life in prison. The judge considered King’s low IQ, a past brain injury while sledding as a child, and the fact he was depressed due to a relationship break-up and a foreclosure on his home.

But the judge ultimately placed more weight on the heinous, premeditated nature of the crime, that Lee was kidnapped, and that she was murdered during the course of other felonies including rape.

In the courtroom were Lee’s family, the law enforcement officers that helped catch King and half of the jurors who convicted King of first-degree murder in August.

Economou delivered his sentence at 2:45 p.m.

He paid special attention to Denise Lee’s screams for help and pleadings for her life on a 911 recording during the abduction: “I just want to see my family. I just want to see my family again, please,” she said in a taped 911 call during her abduction.

The story of Lee’s abduction captured attention of the community, from the frantic search for her that night to the missed chances to save her, including a mishandled 911 call.

The daughter of a Charlotte County sheriff’s deputy, Lee was on the back lanai in January 2008, cutting her son’s hair, when King abducted her in his green Camaro. Her two children were left home alone.

King, a stranger to Lee, bound her with duct tape and repeatedly raped her at his home. He eventually shot Lee dead at point-blank range and buried her in a shallow grave in undeveloped section of North Port.

No death penalty for Wesley Williams // Read the order

S. BRADY CALHOUN / News Herald Writer
2009-12-03 10:14:09

MARIANNA – Judge William Wright has thrown out the possibility of a death sentence for Wesley Williams. Wright's ruling on the death penalty was handed down Thursday morning and leaves only one option left — life in prison without the possibility of probation.

Williams was convicted Oct. 2 of four counts of first-degree murder in the deaths of Danielle Baker, 19, and three of her children, 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 fathered two of the boys.

His sentencing date has not yet been scheduled according to the Jackson County Clerk of Courts.

In his ruling Wright said the prosecution proved that Williams had been present at the scene of the murder but had not proved the extent of his culpability in the crime. The sentence of death requires that "the defendant's level of participation must be directly established to a very high level," Wright wrote.

“Judge Wright obviously has done an exceptional job in analyzing the case that was presented to him and the law that applies to that case. I think the judge recognized that (assistant state attorney) Larry Basford did an excellent job of presenting every bit of evidence,” said State Attorney Glenn Hess.

Hess agreed that prosecutors proved that Williams was present at the scene of the murder and that there was another, unknown person, also at the scene.

“The jury may well have found in their deliberations that Mr. Williams was a principal but not the main actor,” Hess said, he added that his office has no intention of appealing the death penalty ruling.

Williams’ attorney, Deputy Public Defender Walter Smith, said that his client won a battle but may have lost the war. Smith said he had hoped the case would go before Florida’s Supreme Court where it had a better chance of being overturned. The case will now go to Florida First District Court of Appeals.

At trial Smith tried to prove that Williams was not present during the murder and that others were responsible for the slayings.

Williams was linked to the crimes by a single limb hair found on the tape used to bind Amarion that was matched to him by mitochondrial DNA, a less unique form of DNA that is shared by Williams’ relatives and others. Two sets of nuclear DNA, which is exclusive to an individual, from unknown men were found on the tape as well.

Investigators also found that Williams’ cell phone made a call from the Marianna area shortly before the killings, at a time when Williams says he was home in Sneads. Three witnesses said Williams told them he was connected to the crime.

Donald Allen, a longtime friend of Williams’, said Williams confessed to doing the killings himself. Bay County Sheriff Frank McKeithen and Lt. Joe Smiley said Williams told them he was present for the killings but didn’t participate.

“You can tell the judge is really conflicted by the evidence and the applicability of the death penalty,” Smith said. “I have to assume that Judge Wright has a reasonable doubt about his guilt.”

Supreme Court cites combat stress in reversing death penalty

The Supreme Court on Monday threw out a death sentence for a decorated
veteran who fought on the front lines of the Korean War, ruling for the
first time that combat stress must be considered by a jury before it hands
down the harshest punishment.

"Our nation has a long tradition of according leniency to veterans in
recognition of their service, especially for those who fought on the front
lines as [George] Porter did," the justices said in a unanimous, unsigned
opinion.

Porter, 76, was convicted and sentenced to die for the 1986 shooting and
killing his ex-girlfriend and her new boyfriend during a drunken rage in
Melbourne, Fla. But his jury was never told, and his appointed lawyer did
not know, of his valiant military service more than 3 decades earlier.

In the past, the high court has set aside just a few death sentences
because a defense lawyer failed to tell jurors of crucial "mitigating
evidence" that would likely have persuaded them to spare his life.

Monday's decision appears to be the first in which the court cited
"post-traumatic stress disorder" from military combat as the kind of
crucial evidence that calls for leniency. It comes as thousands of U.S.
soldiers are being treated for the disorder from the wars in Iraq and
Afghanistan.

Both the Florida Supreme Court and the 11th U.S. Circuit Court of Appeals
in Atlanta upheld Porter's death sentence, despite his overlooked military
record, but the high court said those decisions were mistaken.

"George Porter is a veteran who was both wounded and decorated for his
active participation in two major engagements during the Korean War. His
combat service unfortunately left him a traumatized, changed man," the
justices said.

The court's opinion put defense lawyers in capital cases on notice that
they have a duty to look into their client's background and to tell jurors
about any mitigating evidence that would call for leniency.

In Porter's case, his appointed lawyer testified later that he had only
one short meeting with his client before the trial and that he did not
meet with Porter's family and was unaware of his military record.

This evidence came to light only after his trial and conviction in the
Florida state courts. When his case was appealed in the federal courts, a
new lawyer contacted his family and looked into his background and found
new witnesses to testify for him, including his company commander from
Korea.

To escape from what the court called a "horrible family life," which
included his father trying to shoot him, Porter had enlisted in the Army
at age 17. He was sent to fight on the front lines in Korea. Twice his
unit was left to hold back charging Chinese troops while the U.S. 8th Army
retreated to the south. Porter's unit fought hand-to-hand combat over five
days and nights at Kunu-ri.

Less than 3 months later, Porter's unit was cut off again from the 8th
Army and forced to fight alone against a Chinese unit at Chip'yung-ni.
Porter was wounded in both battles, and half of his unit was killed or
wounded. He was awarded 2 Purple Hearts and a Combat Infantryman Badge,
along with other decorations.

His commander, Lt. Col. Sherman Pratt, said Porter went AWOL after he
returned to the United States and never adjusted to civilian life. He
drank heavily, suffered from nightmares and was prone to violent and
impulsive behavior.

More than 30 years after his combat experience in Korea, he was charged
with shooting and killing Evelyn Williams and Walter Burrows. There was
little doubt of his guilt. Porter first decided to represent to himself,
then asked to plead guilty halfway through the trial.

That evening, he tried to commit suicide in jail.

Raiford prison psychiatrist quits over sex with patient

After improper relations with mentally ill patient, he faces losing Florida license.
BY PAUL PINKHAM

A senior psychiatrist at Florida State Prison in Raiford quit Wednesday after corrections officials were asked why he was hired even though New York revoked his medical license last year for having sex with a mentally ill patient.

Emanuel John Falcone was hired for the $188,000-a-year position in September, even after revealing his past to the person who interviewed him, prison officials said. Falcone, 52, also faces a pending recommendation, scheduled to be heard Friday, that his Florida license be revoked or suspended.

Department of Corrections Secretary Walter McNeil was unaware of any of that until the Times-Union called Tuesday with questions about why Falcone was hired, a department spokeswoman said.

“Once he learned about it, we started questioning Dr. Falcone, and he chose to resign,” said Gretl Plessinger.

She said she was unaware who else in the department knew of Falcone’s past.

A woman answering Falcone’s phone number in Fort Myers said, “I don’t think he’s going to be interested in talking to you,” before hanging up Wednesday afternoon. In his formal response to the New York Bureau of Professional Medical Conduct last year, he admitted the sexual relationship but denied ever treating the woman, who suffers from multiple personality disorder.

He was not charged with a crime.

Jennifer Druitt, executive director of the Florida Council Against Sexual Violence, said she was surprised the prison system would hire Falcone after he lost his license in New York and faces losing it in Florida. At best, she said, he exhibited serious problems with judgment.

According to the New York bureau, the woman began seeing Falcone’s girlfriend, a licensed clinical social worker, in her Manhattan office in 2003. The patient-relationship continued after the couple married and moved to Florida in 2005. Falcone’s wife would share the patient’s information with him, the New York bureau found. The woman and Falcone began communicating by phone, and he gradually took over her treatment.

In a case summary, a panel of New York physicians wrote that Falcone was “fascinated” by her alternative identities, some of which were children. Her actual age wasn’t in any of the reports.

Their sexual relationship began in 2006 when they got together in New York, the summary said. It continued with a weekend trip that year to swanky Captiva Island, near Fort Myers.

Falcone told the bureau he never considered his interactions with the woman to be treatment or therapy. But the panel rejected that argument in permanently revoking his license in September 2008 for professional misconduct, gross and repeated incompetence and negligence and failing to maintain medical records.

“He was too selfishly motivated and lost sight of his oath,” the panel said. “... We saw no remorse, no humility, no sign that he understood the great harm that he caused despite his attempt to present a speech that was supposed to convince us otherwise.”

The bureau found his actions toward the patient “predatory” and said he knew her illness left her vulnerable.

“He eventually exploited that vulnerability for his own purpose and satisfaction,” the panel wrote.

Florida’s Health Department began investigating last December, including allegations that he didn’t notify Florida authorities about the New York revocation.

The department petitioned the Board of Medicine in April for revocation or suspension of his Florida license. State law says having a license revoked by another jurisdiction is grounds for disciplinary action by the Board of Medicine.

In October, Falcone requested a hearing at the board’s Friday meeting in Orlando. The board could take any action it chooses, from a reprimand to revocation.

Times-Union writer Jeremy Cox contributed to this report.

paul.pinkham@jacksonville.com,
(904) 359-4107

Justices Say Capital Cases Must Weigh War Trauma

By ADAM LIPTAK
WASHINGTON — A death penalty lawyer’s failure to present evidence of the trauma his client suffered in combat in the Korean War requires a new sentencing hearing, the Supreme Court ruled unanimously on Monday.

The decision makes clear that lawyers for clients facing the death penalty must present evidence of post-traumatic stress disorder resulting from military service if it is available.

The unsigned 15-page decision displayed unusual solicitude for a death-row inmate, noting that “our nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines.”

The defendant, George Porter Jr., was convicted in 1987 of murdering his former girlfriend, Evelyn Williams, and her boyfriend, Walter Burrows, in Melbourne, Fla., the previous year. Mr. Porter represented himself for part of his trial and then decided to plead guilty.

He turned to a court-appointed lawyer, Sam Bardwell, to represent him in the sentencing hearing. Mr. Bardwell, who had never represented a defendant in a capital sentencing proceeding, did not interview any of his client’s relatives and did not obtain any school, medical or military service records. He presented only one witness, Mr. Porter’s ex-wife.

Mr. Bardwell’s investigation, Monday’s decision said, was not “even cursory.” Mr. Bardwell has explained that his client had been fatalistic and uncooperative. He did not respond to a message seeking comment on Monday.

Mr. Bardwell’s conduct “did not reflect reasonable professional judgment,” the decision said. “Had Porter’s counsel been effective, the judge and jury would have learned,” among other things, “about Porter’s heroic military service in two of the most critical — and horrific — battles of the Korean War.”

At a 1995 state-court hearing on whether Mr. Porter was entitled to a new sentencing, his company commander testified about the “ horrifying experiences” Mr. Porter had endured, including a “fierce hand-to-hand fight with the Chinese” and a two-day battle in which his company suffered casualties of more than 50 percent.

“After his discharge,” the decision said, Mr. Porter “suffered dreadful nightmares and would attempt to climb his bedroom walls with knives at night.”

Florida state courts turned down Mr. Porter’s request for a new sentencing hearing. The state trial judge relied heavily on the fact that Mr. Porter had been absent without leave in both Korea and the United States, saying that reduced the value of Mr. Porter’s military service to “inconsequential proportions.”

A federal trial judge granted Mr. Porter a new sentencing hearing in 2007, but the United States Court of Appeals for the Eleventh Circuit, in Atlanta, reversed that decision, saying it would defer to the state rulings.

That was a mistake, the Supreme Court ruled on Monday in Porter v. McCollum, No. 08-10537. The Florida Supreme Court had “unreasonably discounted the evidence of Porter’s childhood abuse and military service,” the decision said.

“The relevance of Porter’s extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions,” the decision said, “but also that the jury might find mitigating the intense stress and emotional toll that combat took on Porter.”

Palm Bay Killer, 82, Dies On Death Row

PALM BAY, Fla. -- The Florida Department of Law Enforcement confirmed Monday that convicted killer William Cruse died of natural causes at age 82 on death row Sunday.
Cruse, who was convicted of shooting and killing six people, including two police officers, in 1987 was the oldest death row inmate in Florida. The April shooting rampage also injured 14 other people.

Authorities said Cruse, armed with a high-powered rifle, went into a Winn-Dixie and a Publix parking lot on Palm Bay Road and began shooting. He also took hostages inside the Winn-Dixie, authorities said.

Cruse was a Palm Bay resident and a librarian who claimed that two kids in his neighborhood were harassing and teasing him.

Among the six people Cruse killed were Palm Bay police officers Ronald Grogan and Gerald Johnson.

He was sentenced to death a year or two after the incident.

The mother of Ronald Grogan, Pat Grogan, told WESH 2's Dan Billow, "I am very happy that this day has come about. I was afraid we would die before Cruse did."