Prosecutor stands up for justice

A Times Editorial
Prosecutor stands up for justice
In print: Tuesday, December 16, 2008

Christmas will come a little early for Jimmy Ates. On Wednesday, it is expected that his murder conviction for shooting and killing his wife in the couple's Okaloosa County home will be set aside thanks to an acknowledgement by Gainesville prosecutor Geoffrey Fleck that the evidence used to convict Ates was deeply flawed. Fleck is to be congratulated. He is the first prosecutor in the nation to ask for a murder conviction to be vacated due to faulty bullet-lead analysis testimony, and his actions should inspire other prosecutors to do the same.
High school teacher Ates was convicted in 1998. In powerful forensic testimony, an FBI expert said at trial that the bullets that killed Ates' wife came from a box owned by him. The problem is that there was no valid science to back up the statement.

This kind of comparable bullet-lead analysis has been wholly discredited. But for decades before the FBI abandoned its use in 2005, the agency dispatched experts to claim that a crime-scene bullet or bullet fragment could be traced back to other bullets owned by the defendant.
It is estimated that as many as 2,500 cases have been compromised to one degree or another, but according to the Innocence Project of Florida, the FBI has completed fewer than 100 full reviews to determine whether convictions should be revisited.

Ates is one of those. In late May, prosecutor Fleck, who was not the original prosecutor in the case, received a letter retracting the FBI expert's testimony at Ates' trial. This, combined with the fact that police investigators kept from Ates evidence of a suspicious, unidentified fingerprint found in his home, led Fleck to ask a judge in Okaloosa County that Ates' conviction be set aside.
Another case that may be deserving of reconsideration involves a 1983 St. Petersburg murder of a cab driver. The main forensic evidence against defendant Derrick Smith, now on death row, was testimony by an FBI lab director matching a bullet fragment from the victim to a box of bullets at Smith's uncle's house. So far Smith has not been able to win a new trial.
While the FBI continues its survey of cases where bullet-lead analysis was used, Florida's prosecutors should initiate their own reviews of cases in which such testimony was material to a conviction. As difficult as it is to do, they should take a cue from Fleck and look to un-do wrongful convictions. Justice demands it.

Ates innocent?

Ates innocent?

If Jimmy Ates' murder sentence is vacated at a hearing Dec. 17, prosecutors must decide whether to retry the case

November 22, 2008 - 2:55 PM

Tom McLaughlin
Daily News

Jimmy Ates could be a free man by Christmas.Ates, who was sent to prison for life after he was convicted in 1998 of murdering his wife, has been granted a hearing Dec. 17 to determine whether the sentence should be vacated.Okaloosa County Circuit Judge William Stone will be asked to decide whether Ates will get a new trial if the sentence is vacated. It is possible prosecutors won't even opt to try the case again."We don't yet know what we're going to do with this case," said Geoffrey Fleck, the assistant state attorney in the 8th Judicial Circuit who recommended that Ates be retried. "It's going to take an analysis of the availability of witnesses and the strength of the case in light of the passage of time and evidence that may not be available to us any more," Fleck said.The Innocence Project, a group dedicated to freeing people wrongly convicted of crimes, has agreed to provide legal help to Ates at the hearing."We're hoping he'll be able to walk from the courtroom a free man," said Seth Miller, executive director of the Innocence Project in Florida.If Stone decides a new trial is in order, Miller said his legal team will seek to obtain a bond for their client.Stone set the hearing Thursday after receiving Fleck's request for a new trial.Ates, a teacher at Baker School, was tried in 1998 for the 1991 murder of Norma Jean Ates. Norma Ates was found on the floor of her burning home. She had been shot several times with a .22-caliber pistol.Prosecutor Rod Smith convinced a jury that Ates had shot his wife, set a delayed reaction fire and hustled over to the school for a baccalaureate event.Fleck requested the new trial after reviewing a motion from Ates to vacate the sentence.Fleck determined that two of the several arguments Ates presented had merit.He noted in his report that in 2005 the FBI had stopped using a type of ballistics testing, known as metallurgy, that prosecutors relied on heavily to convict Ates. The decision to stop using metallurgy analysis was halted "because the science was simply wrong," Fleck said in his report. Ates also claimed in his motion that prosecutors withheld fingerprint evidence he has since obtained.Ates' was able to obtain two reports written by an FDLE analyst which discussed a fingerprint lifted from a utility room in the Ateses' home where the type of bullets presumed to have killed Norma Ates were found. The fingerprint did not belong to Ates, his wife, or the lawmen most likely to have left a print at the crime scene.Prosecutors never made the questionable fingerprint evidence available to Ates' defense team."The evidence now discovered by the defendant suggests some unknown party had access not only to an unlikely area of the Ates residence, its utility room, but to ... the location of the shooter's bullets," Fleck said in his report. Smith, the elected state attorney for the 8th Judicial Circuit, took the case at the request of then-Gov. Lawton Chiles. Attorneys in two other judicial circuits, including Northwest Florida's 1st Judicial Circuit, had declined to prosecute, citing a lack of evidence.

The State Uncharacteristically Admits Wrongdoing in Ates Case

From the blog of Florida Innocence Project :

Monday, December 15, 2008

The State Uncharacteristically Admits Wrongdoing in Ates Case

On the heels of Bill Dillon's vacated conviction comes another Florida case about to hopefully see retrial.Jimmy Ates was convicted in 1998 of killing his wife, Norma Ates. His conviction came seven years after the fact, and after two other prosecutors had refused to take the case because of scant evidence.Jimmy Ates has been in jail for 10 years. However, on October 31st of this year, the State filed their response to a recent motion by Ates for post-conviction relief. They did something extremely rare, which was to concede two compelling reasons why Ates is entitled to a new trial.First, the prosecutors at the time relied almost entirely on the analysis of bullet lead found in Ates' home. (The idea being that the bullets that killed his wife matched in elemental composition a batch of bullets that Ates owned, therefore one of his bullets killed his wife, therefore, he killed his wife.) The science behind such analysis has since been abandoned by the FBI, one of its main proponents. Because that testimony, now known to be flawed, was the vital piece of incriminating evidence against Ates, the State agreed that he should receive a new trial. (What the State is left with now is a haphazard patchwork of circumstances that fails to convincingly link Ates to the murder of his wife.)Magnifying the importance of the metallurgical evidence, then-prosecutor Rod Smith embellished the bullet lead claims until they appeared to be of astounding probative value. In his closing argument, Smith stated,
Of all the millions and billions of bullets that are made by any given company in any given time frame, the bullets that killed Norma Jean were manufactured from the same batch that were found in the box in the back room.Unfortunately for Smith, the science used at the time has since been discredited, and even the conclusions of the FBI analyst would not have supported a statement as strong as his. Instead, and because of this, his closing argument was misleading and false.Secondly, the State admitted that a fingerprint lifted from the scene of the crime was not disclosed to the defense during preparations for trial. Even more material to Ates' defense is that the fingerprint did not come from Ates or the victim, or from any of the police officers who could have left their print while investigating the scene, or from two other known suspects.On top of all this, the FDLE officer who filed the report denied lifting any important prints from the utility room while he was on the stand. We would like to believe that this officer was simply mistaken, that he had not been informed that this particular print came from the utility room, or that he had honestly forgotten since his analysis. Instead, though, we know that the prosecution had tested the print in question against several officers' prints as recently as two weeks before the trial. This leads one to believe that the State did, in fact, know about these prints, and knew they could be a problem for their case. When the FBI analysis came back negative for any matches, they brushed it under the rug.These both are cogent reasons for Ates to receive a new trial. While the FBI bullet-lead science was contentions at the time, it was widely accepted in courtrooms across the country until recently. We now know it to be bunk. In the case of the mystery fingerprint, it seems to have been purposely concealed by some element of the prosecution. The FDLE officer who took the stand appears to have been either terribly mistaken, or, more likely, lying, when he testified there were no prints of value in the utility room.While Ates' case represents a sad miscarriage of justice, the miraculous thing about this case is that the State has disclosed its own wrongdoing.According to an Individual.com article,
Staff attorney Scott Reagan is reviewing [the State's response]...Reagan said the prosecutor's request for a new trial is extremely rare and "carries a lot of weight." Indeed it does, given the adversarial nature of the justice system in which the State in particular is oftentimes most interested in saving face rather than procuring real justice. It's lamentable that this breach of justice occurred in the first place, but refreshing that the State had the moral fortitude to come clean when confronted.This quote from the end of the State's response is telling:
In the context of the cumulative effect of the errors identified by the defendant, and the circumstantial if not "close" nature of the evidence in this case, no one should be confident in the accuracy of the verdict in this case.Accordingly, it is the state's belief that the defendant should be granted a new trial. [emphasis added]We eagerly await the outcome of Ates' hearing on December 17th of this year. Hopefully the State Attorney's office will continue this pattern of behavior, do the right thing, and drop the charges.

FLORIDA FREEDOM

FLORIDA FREEDOM

http://www.oranous.com/innocence/JosephGreen/josephgreen.html

Joseph Nahume Green lay in the dark of a Starke motel room last week, trying to savor the freedom of being off death row.
But the hum of the air conditioner, then the eerie stillness when it
shut off, disturbed his reverie. He grew anxious, wondering if the
voices outside his door were plotting to break in and stab him to death.

"I didn't know who knew I was there or had seen me enter," the
43-year-old laborer said. "I was helpless in a motel room all by myself with nothing to do except stare into the empty darkness."
Exhausted, Green checked out the next morning, and returned to the sofa in his brother's crowded Starke home.

After 7 years of imprisonment, he is finding it difficult to be alone.
Green, who was convicted of the 1992 killing of the society page editor of the weekly Bradford County Telegraph and sentenced to death, was released without bond last week. His freedom followed a series of legal decisions that overturned his conviction and disallowed the only prosecution witness to place him at the crime.

While death row inmates occasionally have their sentences commuted to life in prison, it's rare for an inmate to leave death row a free man.
Out of 777 inmates sentenced to death in Florida since the death penalty was reinstated in 1973, 19 have been set free, according to the Death Penalty Information Center in Washington.

Green, meanwhile, maintains that he is "totally, 100 % innocent."
He remains under indictment, charged with murdering Judith Miscally during a 1992 robbery attempt at a pay phone in Starke.
But Jeffrey Leukel, Green's court-appointed attorney, said he will
file a motion for a judgment of acquittal.

"The reason this is being done is the state refuses to drop the case and has proposed that the judge review the previous trial transcripts, as opposed to the expense of a new trial," Leukel said. "Upon completion of his review, he has indicated he will grant a judgment of acquittal." Assistant State Attorney Bill Cervone, who prosecuted the case, is out of town and unavailable for comment. His supervisor, Jim Nylon, didn't return telephone calls yesterday, and State Attorney Rod Smith also was unavailable.

The Florida Supreme Court overturned Green's conviction in November 1996, saying evidence had been improperly seized. Justices also ruled that a
defense eyewitness shouldn't have been asked during cross examination if she was a recovering alcoholic because there was no evidence to indicate she had been drinking the night of the slaying.

The court ordered a new trial in Alachua County rather than Starke, where the victim was well known, the case had received extensive publicity and there had been 8 violent deaths in a 2-year period.
Leukel said Green's extensive criminal record - including a prior murder conviction - was known to many residents of Starke, a small town about 50 miles southwest of Jacksonville.

Justices also said the testimony of Lonnie Thompson, the state's only
eyewitness, was "often inconsistent and contradictory." Thompson is
mildly retarded and has suffered head traumas that have caused memory problems, the ruling said. Thompson also admitted to drinking 8 cans of beer and using cocaine and marijuana before Miscally's shooting. He also told police at first that a white man shot Miscally. Green is black.

Based on the court's ruling, Leukel challenged Thompson's competency. The trial judge found Thompson incompetent to testify, and, last month, the 1st District Court of Appeal affirmed that decision. "I would say this is very unusual, but this is an unusual case," said Dave Davis, a Tallahassee lawyer who handled the Supreme Court appeal.
"The state's case stood and fell on Lonnie Thompson. . . . It was obvious that Lonnie Thompson had severe problems and the state had an extraordinarily weak case to begin with."
There was no physical evidence, such as a gun or fingerprints, linking Green to the crime.

Green, meanwhile, said he is trying to enjoy his freedom while waiting for his case to be settled. But his attorneys, Leukel and Reed Replogle, don't want him to be too visible in the community.
"We have considerable concerns for his safety because of the high emotional level associated with the case," Leukel said.
Dressed in his prison blues, Green walked out of jail at 4:59 p.m. July 7, in the middle of a fierce thunderstorm. Leukel and D.C. Johnson, a Gainesville investigator, took him to Goodwill, where Leukel bought him a blue pin-stripe and a conservative gray suit, gray slacks and several pink button-down shirts.
Later, Green dined on his first steak dinner in 7 years at Leukel's law office. He then celebrated with a glass of champagne.
But after being in a regimented prison environment, Green says: "I have a whole lot of iffy time where I stare into space and have nothing to do."

As he waits, he tries to keep busy, frequently visiting Leukel's office
to review trial transcripts. He also plays with his brother's frisky Rottweiler puppy. Green, a Miami native, wants to return there to find a job and marry his fiancee, Margie Leverson.
He said his fiancee will help keep him out of trouble.
"I've been down that road, and I don't want to go back," he said. His criminal record includes 20 arrests over a 17-year period, including a 3-year prison stint for 2nd-degree murder.

Green, a welder, painter and mechanic, was working as a laborer for Darcon Inc., a subcontractor for the DuPont company, when Miscally, a 47-year-old Lawtey resident, was shot. Miscally and her husband, Russell, owned a street-cleaning business and had been sweeping the parking lot of the Bradford County Courthouse. They needed more equipment, so she drove
to a convenience store at U.S. 301 and Florida 16 to call her son. About 10:10 p..m., a gunman approached Miscally and demanded money. Miscally, who had only 75 cents, began screaming and struggled with the gunman, who shot her in the stomach.

Green was arrested the next day based on a description by Thompson, an acquaintance.

The state's case hinged on Thompson, who was at a convenience store across the street and ultimately identified Green as the killer. Thompson testified that he had seen Green earlier in the evening, when Green told him he needed money because he was behind in his rent at the Starke Motor Court. But defense lawyers countered that Thompson gave several accounts of what happened.

Another eyewitness, who testified for the defense, said she saw three men surrounding the woman. Just after hearing the shots, Katrina Kintner, who was sitting in her car across the street, said she saw 2 of the men run behind a garbage bin. She said she did not see where the 3rd went. A 3rd witness, who was in his car at a stoplight when he heard the shot, said he saw 2 people in front of the store. However, because he wasn't wearing his glasses, he said he couldn't identify them.
At the time of the shooting, Green said, he was at a Pizza Hut 3 blocks away helping 2 men take the muffler off their car. They corroborated Green's story.

Sometime after 11 p.m., Green returned to the motel where the owner saw him outside and reminded him that his rent was due the next day. Jurors also saw a suit seized from Green's motel room after Thompson told police what Green was wearing. But Thompson admitted under cross-examination that he had told police the suit was a different color, then said he couldn't remember what it looked like. The Supreme Court said the suit, on which no forensic evidence was found, was improperly seized by police.

The victim's husband, Russell Miscally, said he felt the prosecution did "a magnificent job" but that police mishandled the crime scene. It was not cordoned off, and her pickup truck was released that night without being processed.
Miscally, a Jacksonville firefighter who lives in Lawtey, said he is
still convinced Green murdered his wife. "I don't like this, but I just have to accept it," said Miscally, who has since remarried. "If I had $700 trillion dollars, there's nothing I could do about it. God will sort this out. The only thing we can do is bite our tongues."

Green, meanwhile said he spent his time on death row in the law library looking for any legal ruling that might save his life. While other inmates watched the soap operas All My Children and As the World Turns, he read law journals, wrote three or four pen pals and did calisthenics.
For most of that time, he said he had no visitors.
And he worried when his date with death would come.
"You don't know when you're going to go," he said.
Green said he learned his conviction had been overturned while listening to the radio.

"I was so elated and started praising God for having someone save me from the electric chair," he said. "I was just overjoyed to know I had another chance."

Though death row was "stagnating, dehumanizing and degrading," Green said he still had more privileges there than at the Bradford County jail, where he was moved after his conviction was overturned.
Now, Green can wear one of his suits and remain outdoors as long as he likes.
"If I want to, I can walk down the street and feel the sun . . . on my
face, and a week ago, I couldn't do that . . ." he said. "The grass is
greener, the sun is hotter, the sky is bluer. I can even appreciate
seeing a raindrop."
(source: Florida Times-Union)

Freed in 2008

Freed in 2008

So far this year, 13 people around the United States have been exonerated by DNA testing after serving more than 200 combined years in prison for crimes they didn’t commit. At least 10 more people have been cleared by DNA but are waiting for their exonerations to become official.
Here are the stories of those exonerated so far in 2008:
Michael Blair was convicted and sentenced to death in Texas based on improper forensic testimony and several eyewitness misidentifications. He served nearly 14 years on Texas death row for a murder he didn’t commit.
Kennedy Brewer was sentenced to death in 1995 for a child murder he didn’t commit. He was freed when DNA testing secured by the Innocence Project led to the identity of the real perpetrator. His exoneration also led to critical reforms on handling evidence and state oversight for autopsies.
Dean Cage was exonerated by DNA testing in Chicago after spending 12 years in prison for a rape he didn’t commit.
Charles Chatman served 27 years in Texas prison for a rape he didn’t commit before DNA testing secured by the Innocence Project of Texas set him free.
Nathaniel Hatchett was 17 years old when he was arrested for a carjacking and rape he didn’t commit. He served 10 years in Michigan before he was cleared.
Arthur Johnson spent 16 years in Mississippi prison for a rape he didn’t commit before DNA testing won by the Innocence Project New Orleans led to his release.
Rickey Johnson served 25 years in Louisiana prison for a rape he didn’t commit before the Innocence Project secured DNA testing that proved his innocence. The test results pointed to the identity of a Louisiana inmate who was convicted of committing another rape in the same neighborhood after Johnson was convicted.
Robert McClendon was exonerated by DNA in August in a joint project between the Ohio Innocence Project and the Columbus Dispatch. He spent 17 years in Ohio prison for a crime he didn’t commit before he was cleared.
Thomas McGowan served 23 years in Texas prison for a rape he didn’t commit before DNA testing obtained by the Innocence Project proved his innocence. He was convicted based on a faulty identification procedure.
Steven Phillips was exonerated in October after serving more than two decades in Texas prison for a series of rapes he didn’t commit. DNA testing obtained on Phillips’ behalf by the Innocence Project pointed to the identity of the real perpetrator of the crime.
Ronnie Taylor was convicted in 1993 of a rape he didn’t commit based on faulty forensic tests at the troubled Houston crime lab. His exoneration became official in January, just days after he married his longtime fiancee Jeanette Brown. The couple now lives in Atlanta.
Patrick Waller served more than 15 years in Texas prison for a rape he didn’t commit. He is the 21st person cleared by DNA testing in Dallas County.
Joseph White, exonerated in November, was the first person cleared by DNA testing in Nebraska history. His five co-defendants are awaiting pardons from the governor in order to be fully exonerated.

The Death Penalty Is Dying

The Death Penalty Is Dying

By Mike Farrell, Meet the BloggersPosted on December 15, 2008, Printed on December 16, 2008

http://www.alternet.org/bloggers/http://meetthebloggers.org/112934/

The death penalty is dying. Fewer death sentences are being pronounced and fewer are being pursued, as prosecutors find America’s juries increasingly uncomfortable with the failures in the system.
Seeing that 130 innocent people have suffered being charged, tried, convicted and sentenced to death in the last 35 years only to be exonerated and freed ultimately, jurors are less likely today to condemn another to die.
In 2000, Governor George Ryan of Illinois found that his state had executed 12 people in the 23 years since their death penalty was reinstated, but in the same period had exonerated 13. Stunned, Ryan, a self-described death-penalty-supporting conservative, declared a moratorium on state killing and established a bipartisan commission to examine and fix the system.
Finding his legislature unwilling to follow the commission’s recommendations by the end of his term, Ryan studied each case and shocked the political world by releasing four additional men he found innocent and commuting the remaining 167 death row prisoners to life without parole.
A thunderclap in the world of politics, Ryan’s actions generated the establishment of like commissions across the country. This has ripped the masks of respectability, efficiency and fairness off a torturous system that fails every test of civilized behavior, and exposed a politically-driven death machine that is racist in application, is only used against the poor and poorly defended, and entraps and kills the innocent and the mentally ill while costing taxpayers two to three times as much as does permanent incarceration.
Last year, due to the work of just such a commission, the New Jersey became the first state in the modern era to abolish the death penalty, joining the thirteen other U.S. states that do not kill. In June, a commission in California found that its death system was costing taxpayers $100 million per year and needed improvements that would cost another $95 million a year, this while having executed 13 people in 29 years. Last month a commission in Maryland found the same problems in its system and recommended abolition.
The death penalty is dying. And when it does, we will leave the company of China, Iraq, Iran and Saudi Arabia and join the rest of the modern world that has long since abolished state killing.
Learn more at Death Penalty Focus, and watch Mike Farrell on this week's Meet the Bloggers dedicated to ending the death penalty.
© 2008 Meet the Bloggers All rights reserved.View this story online at: http://www.alternet.org/bloggers/http://meetthebloggers.org/112934/

The break in his case came from the FBI

The break in his case came from the FBI
Evidence used to convict a man of a St. Petersburg murder relied on shaky science.

By MEG LAUGHLIN, Times Staff WriterPublished December 11, 2007


Breaking News Video
A few weeks ago, attorney Martin McClain was pushing a boulder up a mountain, trying one more time to persuade a judge to hear new evidence for a death row inmate convicted of killing a St. Petersburg cab driver.
McClain had several arguments to make: that the prosecution had withheld important information about a key witness; that lethal injection in Florida was cruel and unusual; and last, that the method the FBI used to link his client, Derrick Smith, to a bullet fragment recovered from the cab driver was scientifically bogus.
"I hoped the judge would reverse his opinion," said McClain. "But I knew it was an uphill climb."
Then something remarkable happened.
On Nov. 18 McClain got a call from his colleague Terri Backhus: "Did you see 60 Minutes? This could be huge for Derrick Smith."
That evening 60 Minutes had aired a segment about a joint investigation with the Washington Post. The segment began: "There are hundreds of defendants imprisoned around the country who were convicted with the help of a now discredited forensic tool."
That tool, called "FBI bullet lead analysis," which had been relied upon since the 1960s in more than 2,500 cases across the country, was the very test that had produced the main forensic evidence in the Smith case.
But now FBI officials were admitting on camera that "the science doesn't support it."
"The testimony was misleading and inappropriate in criminal trials," former FBI lab director Dwight Adams told60 Minutes.
McClain couldn't believe the timing.
"I have a tiny window for refiling in the Smith case, and while it's still open the FBI steps forward," he said. "I've never heard of new evidence of this magnitude coming out at this stage, between pleadings."
***
Shortly after midnight on March 21, 1983, Jeffrey Songer got a call for a fare at a barbecue restaurant in St. Petersburg's Midtown. Whoever Songer picked up there told him to drive to a nearby neighborhood where he was shot in the back and died.
The case against Derrick Smith was built on fingerprints of his found on the pay phone at the barbecue restaurant, a witness who said he saw him there but couldn't identify him after, and the statements of a co-defendant and a prison inmate, each of whom had something to gain by blaming Smith.
His co-defendant, Derrick Johnson, said that he and Smith were in the cab but that it was Smith who shot Songer in the back during a botched robbery. Smith said he never got in the cab. He did rob a couple at gunpoint, at noon the next day. No gun was ever found - either for the Songer murder or the robbery the next day.
But the one piece of evidence that seemed beyond question was the bullet fragment from the murder scene that the FBI said matched a box of bullets at the home of Smith's uncle, where Smith had recently visited.
At Smith's 1983 murder trial, a 1990 retrial and a 2002 evidentiary hearing, FBI witnesses insisted that their testing of the bullets proved that Smith was linked to the murder. At retrial, a prosecutor told jurors that if they doubted witness testimony, they need only consider this "technical evidence" to corroborate it.
In 2002, an FBI lab director testified that the odds were "essentially nothing" that the match of the fragment to the bullets in the box could have been by chance.
The FBI witnesses explained that their tests used extreme heat to measure the waves of energy thrown off by different metals in the lead. The results, they said, showed that five metals found in the fragment were found in almost exactly the same quantity in the unspent bullets. It was like a chemical fingerprint connecting Smith to the crime.
McClain presented an expert, too, a well-known metallurgist, who said that the matching of the amounts of metals "shows nothing about a fragment matching a bullet in a box." How metals congregate in bullets when lead is melted was coincidental, he said, and, despite the similarities, did not relate to where bullets originated. Hundreds of thousands of bullets matched this way, proving nothing, he said.
The judge, however, was not convinced.
In his latest rejection of the defense argument last month, Pinellas Circuit Judge Mark Shames referred to a 2004 National Academy of Sciences report provided by McClain. The report, commissioned by the FBI, was critical of the FBI's conclusions on bullet matching, saying "available data do not support any statement that a crime scene bullet came from a particular box of ammunition."
But Shames said the report simply "indicates the differences in opinion." He didn't give the report any greater weight than other expert testimony.
"The opinions of one group of experts over another does not qualify as newly discovered evidence," he concluded.
***
At the end of the 60 Minutes program, the commentator announced that the FBI had acknowledged its experts "made mistakes in handling bullet lead testimony and should have done more to alert defendants and the courts." With this admission, the debate between experts was over.
FBI assistant director John Miller issued this statement: "We are going the entire distance to see that justice is now served."
The FBI is handing over thousands of cases, involving bullet lead analysis, to the National Association of Criminal Defense attorneys and the Innocence Project for review. The investigation, which an NACDL spokesperson calls "the biggest retroactive crime lab investigation ever done," will include the Derrick Smith case and three other Florida cases.
"The Smith case will be among the earliest to test how the courts handle the FBI's admission," said McClain, who asked Judge Shames last Friday for another evidentiary hearing based upon the 60 Minutes information.
***
Patricia Songer, mother of Jeffrey Songer, is "extremely interested" in what the FBI's rejection of the forensic evidence will mean to the Smith case. She does believe, however, that "other things linked Derrick Smith to the killing."
For her, the strongest evidence was the testimony of Derrick Johnson whom she found to be "a very reliable witness." Johnson served 10 years in prison and now lives in New York.
"I believed him when he said it was Smith who shot Jeffrey," she said.
But her daughter, Lynn Songer, is not so sure Johnson was telling the truth about Smith killing her brother.
"Maybe Johnson was a little smarter and knew how to manipulate the jury to avoid a death sentence," she said. "It wouldn't surprise me if somebody decided it was Smith and then put a lot of stuff together to make it stick."
Both mother and daughter are waiting for word of whether McClain's newly buttressed arguments will alter the judge's opinion.
"I'm not sympathetic with Smith," says Patricia Songer, "but I'm willing to listen if the evidence falls apart."
Meg Laughlin can be reached at mailto:mlaughlin@sptimes.com.%3C/p%3E
[Last modified December 11, 2007, 01:38:16]

Discredited forensics may upend rulings

Discredited forensics may upend rulings

By Meg Laughlin, Times Staff Writer In print: Saturday, December 13, 2008

http://www.tampabay.com/news/courts/criminal/article936409.ece

Gainesville prosecutor Geoffrey Fleck has asked that Ates’ murder conviction be overturned.

In 1998, Panhandle high school teacher Jimmy Ates was convicted of murder for shooting his wife seven times in the couple's Okaloosa County home. There were conflicting witness accounts and a time line with wiggle room. But the testimony of an FBI expert was indisputable: The bullets that murdered Norma Jean Ates in the couple's bedroom came from Jimmy Ates' box of bullets.
Prosecutor Rod Smith hammered the point home to jurors: "Of all the millions and billions of bullets that are made by any given company in any given time frame, the bullets that killed Norma Jean were manufactured from the same batch that were found in the box in the back room."
But now, a decade later, another prosecutor has taken an unprecedented step and asked that the sentence be invalidated because "the fairness of the defendant's trial was severely jeopardized." The move could affect murder cases around the country, including a death row appeal in St. Petersburg.
The turnaround for Gainesville prosecutor Geoffrey Fleck came in late May, after he received a letter from the head of the FBI lab. The letter said that the FBI expert who testified at the Ates trial "did not provide sufficient information to the jury to allow them to understand how bullets are made," which meant the jury "could have misunderstood the probative value of the evidence."

The letter to the Gainesville State Attorney's Office was among hundreds of letters the FBI sent out in the past year in support of what FBI agents said in November 2007 on 60 Minutes — that FBI bullet lead analysis is now a "discredited forensic tool" because the distribution of metal alloys in a bullet is not linked to when and where the bullet was made.
"We are going the entire distance to ensure that justice is served," FBI assistant director John Miller said on 60 Minutes.
But Fleck is the first prosecutor to step forward and ask that a sentence be overturned because of the "FBI junk science."
This week, defense attorney Barry Scheck, director of the National Innocence Project, called Fleck's request "exemplary" and said he hoped it would be "the example other prosecutors would follow."
"Getting the murder convictions based on faulty ballistics overturned is a slow process, but it's working because of the FBI's commitment," said Scheck.
Last year in St. Petersburg, appellate attorney Martin McClain used the 60 Minutes information to ask Pinellas Circuit Judge Mark Shames to vacate the conviction of death row inmate Derrick Smith, convicted of killing cabdriver Jeffrey Songer in 1983. But prosecutors have argued against giving Smith a new trial, and, so far, the judge has agreed with them.
But several weeks ago, McClain made a new request asking the judge to reconsider "in light of Ates" saying that, as in the Ates case, the primary evidence — the bullet link to the defendant — was "fundamentally flawed" causing "the fairness of (Smith's) trial to be fundamentally jeopardized."
McClain is waiting for a decision.
Meanwhile, on Wednesday, Ates will attend a hearing in Okaloosa County, where, according to lawyers for the Innocence Project of Florida and Fleck, he is expected to be released on bail by the judge while prosecutors decide if he should be retried.
Louise Kortaba, Norma Jean Ates' mother, said for a few years after her daughter was shot in 1991 she thought her son-in-law was innocent. But she eventually changed her mind and "felt he was guilty." But now, she says, she's "not clear on what happened."
"If I've been wrong, I hope God and Jimmy will forgive me," said Kortaba.
Prosecutor Rod Smith, who became a state senator and is now a civil lawyer in Gainesville, has also rethought the conviction of Jimmy Ates.
"If we'd known then what we know now, we obviously wouldn't have put that FBI evidence in," said Smith. "But now we know what we know and the state has to meet its obligation."
In his motion asking the judge to vacate the sentence, Fleck also said that police investigators withheld suspicious fingerprint evidence in the house from the prosecutor and the defense.
"The jury was misled about important evidence at trial," he concluded.
Fleck concedes that his position as the first prosecutor in the country to ask that a murder sentence be vacated because of faulty FBI bullet testimony is not popular with everyone. But he says he's thankful his office is supporting him.
"While successful prosecutions are nice, justice is better," he said.
Contact Meg Laughlin at mlaughlin@sptimes.com.
To read the Times previous coverage of tainted bullet evidence go to links.tampabay.com.[Last modified: Dec 12, 2008 11:27 PM]

A Times Editorial

A Times Editorial

Overhaul judicial nomination system

In print: Tuesday, December 9, 2008

Two incidents in the past week are stark reminders that Florida's judicial selection process needs reform. First, a list of nominees for a Central Florida appellate seat lacked minorities. Then, a finalist for the Pinellas-Pasco Circuit Court bench included an attorney with no jury trial experience but plenty of political connections. In both cases, Gov. Charlie Crist did the right thing. Now he needs to go after the systemic problem and push for an overhaul of the judicial nominating process.

To Crist's credit, he recently rejected the all-white list of nominees for the 5th District Court of Appeal. On Friday, he bypassed the easier political choice and named to a Pinellas-Pasco circuit judgeship John "Jack" Helinger, one of the area's most experienced trial attorneys. But those smart decisions don't make up for a fundamental flaw in Florida's judicial system: Partisan appointees — rather than a more balanced panel of attorneys — now pick the governor's finalists for judicial appointments.
It doesn't have to be this way. For roughly 30 years until 2001, Florida had a more politically neutral way of vetting judicial applicants. The state followed a procedure implemented in the wake of scandal on the Florida Supreme Court, whose justices were then picked by popular election. Under the reform, a nine-member judicial nominating commission was established for each court. The governor and the Florida Bar each picked three members, and those six appointees chose the last three. The commissions' task was to review and interview applicants for vacancies on their bench, and then forward a list of finalists to the governor, who would make the selection. The model served the state well, ensuring moderate and usually merit-based appointments.
But that was before Gov. Jeb Bush suffered court defeats over controversial initiatives involving the death penalty and school vouchers. Bush sought to wrest control of the branch in a number of ways, but he was most successful in taking over the judicial nominating commissions. The 2001 Republican-led Legislature gave

the governor authority to fill all 234 seats on the state's 26 JNCs — though the governor must fill almost half the seats with attorneys nominated by the Florida Bar.
The impact of the change is now clear. Too often now, the nominating commissions are putting more emphasis on the correct political persuasion and ideology, and less on the best qualifications. In August, Crist grumbled that the eight finalists for the first of two Supreme Court seats included no women or African-Americans, though he didn't reject the list and ended up appointing two conservative white men. But Crist wisely rejected a similar list recently for an opening on the 5th District Court of Appeal. The court covering 13 Central Florida counties has 10 seats, but only one female judge and no African-Americans. Oddly, the JNC has rejected the governor's request for a new list and forced a showdown.
But Crist needs to go beyond rejecting unacceptable nomination lists or politically charged nominees. Here is another chance for him to enhance his nonpartisan efforts. Just like Crist looked past partisan interests to restore civil rights for felons and to extend early voting in the November election, he should push to restore integrity and balance to the state's judicial nominating commissions.
[Last modified: Dec 08, 2008 06:34 PM]
http://www.tampabay.com/opinion/editorials/article930716.ece

Fla. _ No. 3 in prison popluation _ turns to tents

By JESSICA GRESKO
Associated Press Writer

Some prison inmates in Florida - which locked up more new ones last year than any other state, according to a federal report released Thursday - soon could be living in tents.

Justice Department statistics show the overall Florida prison population increased by 5,250 inmates in 2007, the most recent numbers available, to bring the state's total nearly to 100,000.

Those 5,250 new inmates are more than twice the number locked up last year by the next closest state, Kentucky, though Florida's overall population is more than four times as big as Kentucky's.

Florida prison officials began preparing for the influx of new inmates by setting up tents in March to house the potential overflow. So far, the state has set up 36 tents at work camps, where lower-risk inmates are housed.

The tents, which cost $9,000 each, are not yet being used. They can each house up to 22 prisoners. Florida has another 20 tents in reserve, according to Department of Corrections spokeswoman Gretl Plessinger. The state also has some regular dorms under construction that will be ready by next month.

Housing prisoners in tents isn't new. An Arizona sheriff became famous for a tent city jail he started in 1993. It now has about 50 Korean War tents the sheriff got free from the federal government to house 1,700 inmates.

The two state prison systems that are larger than Florida, California and Texas, do not use tents, though Texas did in the 1980s and California did so in the 1950s after an earthquake damaged a women's prison.

New Jersey set up tents at one state facility for about 100 inmates in 1989, though they have since been taken down. It also began setting up large trailers in the 1980s to house inmates in a dormitory-style setting. The state still has 20 trailers, including one entire prison made up of them, said corrections spokeswoman Deirdre Fedkenheuer.

Florida's 141 prison facilities are nearing capacity. Between 2000 and 2005, the state prison population increased by about 5 percent annually. In contrast, the other nine largest state prison systems in the nation grew at an average rate of 1 percent a year. Current Florida estimates put the state prison population at nearly 130,000 by some time in 2014.

Earlier this week, Department of Corrections Secretary Walter McNeil told lawmakers that the state would need to build 19 new prisons in the next five years to house the surge of inmates. He estimated the cost at $1.9 billion, an amount nearly equal to the department's current annual budget of approximately $2 billion.

McNeil told lawmakers Tuesday that they should think about re-evaluating sentencing policy, a "lock-em-up" approach that has ballooned the prison population. The state should also look at ways to reduce the number of people who leave prison only to return, McNeil said.

"The growth of our prison population underscores the need to prepare inmates to successfully enter our communities," McNeil said in a news release Thursday. "Of our current inmate population, 46 percent of them have served time in Florida prisons in the past."

McNeil said he is committed to reversing the trend.

The report released Thursday by the Bureau of Justice Statistics, "Prisoners in 2007" is done annually. It found that of the states, Kentucky took in the second-most new inmates last year, 2,457, while Arizona came in third with 1,945.

The federal prison population expanded by 6,572 to put it at slightly more than 200,000.

Remains could bolster case against Casey Anthony

By MARK WANGRIN – 1 day ago

ORLANDO, Fla. (AP) — Prosecutors looking to convict a central Florida mother in the death of her missing daughter are waiting to find out if they have the crucial evidence they need: a body.

A utility worker discovered a child's skull Thursday less than a half-mile from 3-year-old Caylee Anthony's home in some woods that, until recently, had been flooded. The remains could solve a six-month-old mystery of where the girl went, legal experts said.

Caylee's mother, 22-year-old Casey Anthony, was indicted in October on first-degree murder and other charges, even though the toddler's body hadn't been found. She has insisted that she left the girl with a baby sitter in June, but she didn't report Caylee missing until July.

"If the defense had been able to go to trial without a body being discovered, hopes for reasonable doubt might have been compelling. If the body proves to be Caylee, then it immediately becomes an uphill case for the defense," former U.S. Attorney Kendall Coffey said.

There was nothing that immediately indicated the skull found Thursday was Caylee's. But Orange County Sheriff Kevin Beary said his investigators and the FBI would work around the clock and through the weekend to identify the child.

Asked if he believed the remains were Caylee's, Beary told NBC's "Today" show: "My gut says yes, but I have to wait seven to 14 days for the DNA analysis to absolutely make sure."

Another search warrant for the home where Caylee and her mother lived with Casey's parents was executed early Friday morning after the medical examiner found "some clues that came out of the remains" that "linked it to the house," Beary told the program.

There are also no other similar missing-child cases in the area.

"Now the investigation continues," Beary said earlier. "There is a lot of lab work to do. There is a lot of DNA work to do. There is a lot of crime scene work to do."

Prosecutors announced last week that they would not seek the death penalty against Casey Anthony. Even if the remains are Caylee's, law experts said it was unlikely the state would reverse its decision because prosecutors still have not determined a motive.

And depending on what the evidence yields, the discovery could also help defense attorneys.

"If the body was tampered with, if wild animals got to it, if the evidence they get with it is contradictory in some way, then the job (for prosecutors) just got tougher," said Jim Cohen, a law professor at Fordham University in New York.

"This can verify or help to verify their theory: that the child was killed when the prosecution thinks she was killed," said Richard G. Lubin, a criminal defense lawyer based in West Palm Beach. "But until you do some of this scientific work, we don't know what it's going to show."

A spokeswoman with the state attorney's office said Thursday that officials wouldn't comment until the investigation was complete.

For the past several months, Anthony's family, police and volunteers from around the country have searched for the little girl.

Casey Anthony has insisted that she left the girl with a baby sitter in June, but she didn't report her missing until July. She was told about the discovery in jail on Thursday, and was placed under psychological observation — not suicide watch. Her attorney, Jose Baez, visited her and did not return calls seeking comment.

The child's grandmother first called authorities in July to say that she hadn't seen Caylee for a month, and that her daughter's car smelled like death.

Police immediately interviewed Anthony and said that everything she told them about her daughter's whereabouts was false. The baby sitter was nonexistent, and the apartment where Anthony said she had last seen Caylee had been empty for months. Anthony also lied about where she worked.

As the case unfolded, troubling details emerged: Photos surfaced of Anthony partying after her daughter went missing. Friends said she was a habitual liar, but also a good mother.

Last month, the Orange County State Attorney turned over almost 800 pages of documents, which showed someone at the Anthony home had done Internet searches for terms like "neck breaking" and "household weapons."

In mid-March, someone used the Anthonys' home laptop to search Google and Wikipedia for peroxide, shovels, acetone, alcohol and chloroform. Traces of chloroform, which is used to induce unconsciousness and is a component of human decomposition, were found in the trunk of Casey Anthony's car during forensic testing, the documents said.

Associated Press Writers Tamara Lush, Suzette Laboy, Damian Grass, Sarah Larimer and Antonio Gonzalez in Miami contributed to this report.

Murderer's Death Penalty Overturned

Mark Poole to Get a New Hearing

By Suzie Schottelkotte
The Ledger


Published: Thursday, December 11, 2008 at 7:00 a.m.


BARTOW Convicted murderer Mark Anthony Poole, who was sentenced to death in 2005, is no longer on death row, at least for now.

The Florida Supreme Court ruled Thursday that Assistant State Attorney John Aguero erred when he asked witnesses about Poole's prior criminal history during the sentencing hearing in Poole's trial.

The court upheld Poole's conviction on first-degree murder, rape and armed robbery, but overturned his death sentence and sent the case back to Circuit Court.

Now Circuit Judge J. Dale Durrance will schedule another hearing before handing down a new sentence.

A Polk County jury deliberated about 30 minutes before finding Poole, 45, guilty of fatally beating 24-year-old Noah Scott with a tire iron during a 2001 home invasion in Lakeland.

Scott and his 18-year-old fiancé, who was five months pregnant, were sleeping when Poole broke into their mobile home in the Orangewood Village Mobile Home Park during the predawn hours on Oct. 12, according to prosecutors.

Armed with the tire iron, he beat Scott at least 13 times in the head while Scott tried to pull Poole off of his fiancé, they said.

Poole was convicted of beating the woman about the head during the rape, leaving deep gashes that exposed her skull.

During the sentencing phase of the 2005 trial, Aguero agreed not to mention Poole's criminal history because defense lawyers didn't plan to argue that his past crimes were insignificant.

But when Poole's younger brother took the stand, Aguero raised the issue, asking Joe Poole Jr. whether he knew that his brother had been arrested in South Carolina, Texas and Georgia.

The state Supreme Court ruled Thursday that Aguero's question disclosed that Poole had been arrested before.

"By this point," the ruling states, "the damage had been done and the jury knew that Poole had a criminal history."

Chief Assistant State Attorney Chip Thullbery said Thursday that prosecutors are ready to argue again for a death sentence.

"We are prepared to relitigate the sentence," he said, "and we will continue to seek the death penalty."

At the time of his 2005 sentencing, Judge Durrance said Poole's actions were so "conscienceless or pitiless and unnecessarily torturous" that they rose to the level of "heinous, atrocious and cruel" - an aggravating circumstance that can provide the legal basis for a death sentence.

Mitigating evidence presented by Poole's lawyers didn't outweigh the aggravating circumstances prosecutors presented, Durrance said.

Two mental health experts testified that Poole isn't insane but does have a low intellect, a substance-abuse problem and moderate brain damage. Durrance said he considered that evidence.

The judge noted that Poole has criminal histories in Texas, Louisiana, Mississippi, Georgia, South Carolina and Florida.

Durrance dismissed the defense's claim that Poole was a religious person.

The judge pointed out that Poole didn't seize an opportunity to show sorrow at a July 22 hearing.

"You offered no apology," Durrance said. "You showed no repentance, and you demonstrated no remorse."

Instead, Poole expressed his dissatisfaction with Assistant State Attorney John Aguero, his own defense lawyers and the makeup of the jury.

"He complained that the weapon should not have been called a crowbar because it was only a tire iron, and he complained that the victim, (Scott's fiancee), was provided tissues while on the witness stand," Durrance wrote in his order.

[ Suzie Schottelkotte can be reached at suzie.schottelkotte@theledger.com or 863-533-9070. Ledger reporter Jason Geary contributed to this article. ]

Grodin trial delayed in beating death of baby daughter

news-press.com

Justin Grodin’s March trial may be moved back because of scheduling conflicts, but his judge appears unwilling to delay the case with another claim of incompetency.

Grodin, 34, is charged with beating to death and burying his 11-month-old daughter Gretchen in south Fort Myers in 2000. He faces the death penalty if convicted of first-degree murder. He also faces two counts of aggravated child abuse.

Grodin appeared in court with his attorneys this afternoon to clear up any motions that remain unresolved.

Attorney J.L. “Ray” LeGrande tried to get Lee Circuit Judge Edward Volz Jr. to address Grodin’s competency, which deals with his understanding of the court system and the penalties. The man’s competency has been questioned repeatedly since 2005. He was found competent by Lee Circuit Judge Lynn Gerald Jr. then, but Volz, who took over Gerald’s docket, has not seen Grodin the same as his predecessor. In the last year, Volz has twice determined Grodin is competent.

Volz said he has made up his mind and wouldn’t grant a hearing on the matter.

“He has been found competent and he has been found to be malingering,” Volz said, “My order speaks for itself. I am not going to entertain the motion.”

LeGrande also requested that Volz deem a Florida statute about the death penalty unconstitutional. Volz said he would issue a written order at a later date.

The last issue of today was Grodin’s trial date.

In November, Volz moved Grodin’s trial to March 1. The scheduling conflict lies with assistant state attorney Anthony Kunasek, who is also prosecuting Fred Cooper in a double murder trial in St. Petersburg. Cooper’s case was set for trial in January, but was moved to Feb. 17 because there are no rooms available before the Super Bowl, which is in Tampa on Feb. 1. Because Cooper’s trial is expected to last two to three weeks, it would run into Grodin’s scheduled March 1 trial and Kunasek wouldn’t able to do both trials at once.

So, Volz said today, he will try to find the time to still keep Grodin’s trial in March. He said he had already set aside three weeks for Grodin’s trial before the Cooper delay.

“I will have to work with my schedule,” he said. “I will be in communication with both of you.”

--------------------------------------------------------------------------------

Trial date set for Fla. man in NC trooper's death

Associated Press - December 12, 2008 2:54 PM ET

WAYNESVILLE, N.C. (AP) - A trial date has been set for a Florida man charged in the fatal shooting of a Highway Patrol trooper in western North Carolina.

The Asheville Citizen-Times reported Friday that 37-year-old Edwardo Wong of Ormond Beach, Fla., will be tried Oct. 12. Wong is accused of shooting 24-year-old Trooper Shawn Blanton Jr. during a traffic stop June 17 in Canton.

Blanton died two weeks after his wife gave birth to their premature son, who suffered from heart and neurological problems. The infant died in October.

Wong also is facing several other charges, including attempted murder for firing Blanton's gun at a sheriff's deputy who was pursuing him.

Prosecutors have said they will seek the death penalty. Defense attorneys said they need more time to prepare.

Death-row inmate Eric Simmons of Lake poorly served by defense, appellate lawyers say

Stephen Hudak

Sentinel Staff Writer

December 11, 2008

TAVARES

Appellate lawyers for a Mount Dora man on death row argued this week that he was convicted of murder and sentenced to die because his trial lawyers failed him.

Lawyers David Hendry and James Driscoll say Eric Simmons, now 34, was denied effective assistance of counsel, a common argument raised by condemned prisoners.

Prosecutors countered the claim, pointing out that Simmons confessed to the murder of Deborah Tressler, 48, who worked at a coin laundry on State Road 46 in Sorrento until she was bludgeoned and stabbed to death Dec. 1, 2001.

After Lake County sheriff's detectives had informed Simmons that they found her blood in his car, Simmons told them, "Well, I guess if you found blood in my car, I must have did it." The statement was a key part of his trial.

But Hendry and Driscoll, assigned to Simmons' death-penalty appeals, cast doubt on the incriminating remark, using testimony from Richard Leo, a law professor and author of a book that claims police deceit and trickery can coerce false confessions.

He spent more than 100 hours reviewing Simmons' case.

"I believe coercive techniques were used," said Leo, who testified from his office in California via live-video feed.

Lake Circuit Judge T. Michael Johnson has not ruled on Simmons' latest appeal.

Shackled and wearing orange jail togs, Simmons listened quietly to Leo and a parade of other witnesses who offered testimony that suggested his previous lawyers could have done more in his defense.

Simmons is among 10 people on death row sentenced to die after a jury trial in Lake County.

Richard Henyard of Eustis died by lethal injection in September, the most recent prisoner executed by the state.

Henyard was convicted of first-degree murder in the 1993 killings of sisters Jasmine and Jamilya Lewis and the rape and shooting of their mother.

The killing of Tressler, while lesser known, is similar in its brutality. Medical examiners found more than 50 wounds on Tressler, who was beaten, stabbed and sodomized.

Her body was found in a wooded area Dec. 3, two days after she disappeared from work.

Simmons, who did not testify during his trial, has maintained his innocence. A previous appeal was rejected by the Florida Supreme Court, and the U.S. Supreme Court has declined to review his case.

Members of Tressler's family watched this week's proceedings.




Stephen Hudak can be reached at shudak@orlandosentinel.com or 352-742-5930.

Number of death sentences declines across the nation

Florida, the rest of South and Texas account for most executions
December 11, 2008
WASHINGTON - New death sentences in the United States were at or near a three-decade low this year and the number of people executed will be the lowest since 1994, according to a new report.

The nonprofit Death Penalty Information Center says the number of executions has dropped 12 percent since 2007 and 30 percent since 2006.

The center also estimates the number of death sentences imposed this year has decreased more than 60 percent from 1998.

The report from the center, which opposes the death penalty, indicates that executions have essentially become a regional phenomenon. All but four of this year's 37 executions occurred in the South and Texas. Ohio and Oklahoma are the exceptions. Texas executed 18 inmates; Virginia, four; Georgia and South Carolina, three each; Florida, Oklahoma, Mississippi and Ohio, two each; and Kentucky, one.

All of the executions in 2008 occurred after April 16, when a U.S. Supreme Court decision on the use of lethal injections ended a de facto moratorium for almost seven months.

The Associated Press

Trial Postponed For Inmate Accused Of Killing Officer

Enoch Hall's Attorneys Argue For More Time To Prepare

POSTED: 7:51 pm EST December 10, 2008
UPDATED: 8:10 pm EST December 10, 2008

TOMOKA, Fla. -- It was determined on Wednesday that it will be well into the new year before an inmate, accused of killing a corrections officer at Tomoka State Prison near Daytona Beach, goes to trial.

Defense attorneys successfully argued for more time to prepare, but the inmate's attorneys didn't have as much success arguing against a possible death sentence.

If convicted of premeditated first-degree murder, 39-year-old Enoch Hall could face the ultimate punishment under Florida and U.S. law -- the death penalty.

His attorneys presented a host of motions on Wednesday calling the death penalty unconstitutional.

"There's no rational reason for a death sentence to be imposed when a life sentence is just as appropriate," said assistant public defender Matt Phillips.

Hall was serving two life sentences at Tomoka State Prison last June when prosecutors said he ambushed Officer Donna Fitzgerald and repeatedly stabbed her with a knife that he had fashioned while working in a vocational center at the prison.

The state has long said death is the only appropriate punishment for someone serving life, despite an argument by the defense that death goes above and beyond.

"That's my first rebuttal to Mr. Phillips' argument, is that it's not an enhanced penalty," said assistant state attorney Leah Case. "That is the maximum penalty for first-degree murder -- death."

Hall's defense also found fault with a simple majority when it came to the jury recommending death.

"Florida statute is the only one that doesn't require a unanimous verdict by a jury," Phillips said. "You know, 12-0, death penalty should be imposed."

Judge David Walsh denied motions challenging a possible death sentence for Hall if he's convicted, but the judge did agree to give the defense more time to prepare.

The trial will not go on in January or February. At this point, the judge has set the week of March 16 for the start of trial, but with the complexity of this case that is far from certain.

There could be more delays, attorneys said. The next pre-trial hearing to check progress on the Hall case is set for Feb. 24.

Florida teen warned friends before shooting

WILTON MANORS, Fla. — A search warrant shows a teen charged with fatally shooting a friend at a South Florida high school sent text message to friends warning about the shooting.

In the 24 hours before the killing, Teah Wimberly sent messages to at least three friends saying "Tomorrow I will shoot myself in the heart" and "Ima shoot somebody."

Fifteen-year-old Wimberly is charged as an adult for second-degree murder.

Authorities say Wimberly and Amanda Collette were longtime friends who had recently stopped speaking before Wimberly shot her at Dillard High School in November. She then ran to a nearby restaurant, called police and confessed.

Wimberly’s attorney says the teen has been troubled since last year when her father was sent to prison for 25 years.

___

Information from: South Florida Sun Sentinel, http://www.sun sentinel.com

Dillon to seek pay for time in prison

Lawyers plan to fight for $1.35M

BY JOHN A. TORRES
FLORIDA TODAY

Attorneys for William Dillon insist the 49-year-old is entitled to compensation from the state, despite the State Attorney's Office not proclaiming his innocence.

Dillon was convicted in 1981 for the murder of James Dvorak and sentenced to life in prison.

He always maintained his innocence, and last month was granted a new trial by Circuit Judge David Dugan, based on new DNA evidence that seemed to clear him of the crime.

Prosecutors said they would go forward with a new trial, but changed their minds on Wednesday.

While state law entitles the wrongfully incarcerated to $50,000 for every year, Dillon's attorneys anticipate having to fight for the money, since prosecutors have not said the Satellite Beach man was innocent. At $50,000 for 27 years, the total amount would be $1.35 million.

"We're going to send Bill in the right direction with some great attorneys," said lawyer Seth Miller, executive director of the Innocence Project of Florida. "Bill absolutely qualifies, and we're going to get that rolling right away."

While the state dropped charges, prosecutors stopped short of declaring Dillon innocent of murder.

In a news release issued Wednesday, the State Attorney's Office said the reasoning behind dropping the charges was the lack of remaining witnesses.

"A major function of our jury system is the evaluation of witnesses as they testify in the trial setting. It is the presentation of live testimony that the jury evaluates and weighs," the release says.

"Unfortunately, as a result of nine witnesses now being deceased, and another witness who suffers medical issues that will substantially impair (the) ability to testify, the trial would primarily consist of a reading of prior trial testimony. The jury would have no opportunity to evaluate the actual witnesses to the events that occurred 27 years ago."

Dillon was convicted in part because of the fraudulent testimony of a disgraced dog handler, who died earlier this year; a witness who was having sex with the lead investigator; a jailhouse snitch whose charges were dropped after he testified for the prosecution; and a bloody T-shirt prosecutors said was worn by the killer.

DNA testing done this summer excluded Dillon from having worn the shirt.

Even though there are laws to protect counties from being sued, Miller said it does not protect Brevard County in this instance.

"In this case, there is an extra-bad intent, extra maliciousness that we believe not only warrants the filing of the suit, but will allow us to win," Miller said.

Miller said the public knows Dillon is innocent.

"If we're going to rely on when a prosecutor says someone is innocent, then no one would ever be innocent," Miller said. "We expect them to try and diminish the quality of what's happened here."

Dillon said he has no intention of leaving his part-time job at a local auto-parts store.

"The man was good enough to give me a job," he said after learning the state dropped all charges.

Dillon said he has not thought much about compensation.

"I'm just blessed to be sitting here," he said. "Whatever else there is, there is."

Contact Torres at 242-3649 or jtorres@floridatoday.com.

Madison County Man Receives First Degree Murder Indictment

Posted: 5:04 PM Dec 1, 2008
Last Updated: 5:12 PM Dec 1, 2008
Reporter: Lauren Searcy
Email Address: Lauren.Searcy@wctv.tv

Fours hours of testimony and deliberation lead a grand jury to issue a first degree murder indictment for 20-year-old Ryan Crosby.

On October 23rd of 2008, David Crosby went missing.

Soon after, his mother became concerned and contacted the Madison Police Department.

As police looked into the missing person's report, they found Ryan Crosby's stories regarding his father weren't matching up.

"Every statement he gave as far as his father's whereabouts were, those stories lead to dead ends and proven to be untruthful to the point where he didn't have any other avenue. Of course he felt like he had no other option, and he came forward and confessed," says Chief Rick Davis from the Madison Police Department.

One of the Crosby's neighbors was surprised to hear what happened in the house next door.

"They seemed close. They went a lot of places together and was very surprised by it all. Very disappointed," says Larry Mayer, the Crosby's neighbor.

Now Ryan Crosby is awaiting trial.

"The possible punishment that Mr. Crosby is facing is life imprisonment or lethal injection by the state of Florida," says Assistant State Attorney Craig Jacobson.

Crosby is being held at the Madison county jail.

A pretrial hearing will be scheduled for some time in January.

Inmate claims abuse once again

By John Frank, Times Staff Writer

Published Monday, November 10, 2008 6:53 PM


--------------------------------------------------------------------------------

BROOKSVILLE — A federal immigration detainee with a history of filing frivolous lawsuits claims that Hernando County jail officers repeatedly beat and threatened him, according to court documents.

Jean-Henriquez Librun, 41, filed a petition Thursday in Circuit Court for an emergency injunction against Hernando County Jail Warden Russell Washburn and three other top jail officials.

In the hand-written petition, the Miami-area man says he was "subject to the use of unjustified physical force" and denied medical treatment in retaliation for filing grievances and complaints against Hernando jail officers, the filing states.

Furthermore, he asserts jail personnel are not allowing him to send legal correspondence and threatened to kill him.

The allegations mirror a civil rights complaint filed the same day in federal court in Tampa. It was dismissed Monday because Librun failed to pay the filing fee.

Librun, whose criminal record dates to 1987, is in the custody of U.S. Immigration and Customs Enforcement. He is one of about 220 ICE detainees being housed at the Hernando jail on a contract between the federal government and the private company that runs the facility off Spring Hill Drive.

Librun arrived at the Hernando jail Oct. 1 after he claimed he was beaten and sexually assaulted at a facility in Glades County, court records indicate.

He has frequently filed lawsuits alleging abuse. Between 1994 and 1998, he filed 27 lawsuits. In the last two months, he's filed five more. All those not pending were dismissed on the merits or legal technicalities.

ICE officials in Miami did not return calls for comment on his custody status.

Washburn said Librun's claims are under review by ICE officials, and he couldn't comment specifically.

But he did suggest that he and his officers would be cleared. "I do not anticipate any procedural violations on our part," the warden said. "We don't abuse any inmates or detainees in our custody."

Staff researcher Shirl Kennedy contributed to this report. John Frank can be reached at jfrank@sptimes.com or (352) 754-6114.

Man sentenced to death in teen's 2002 slaying

A Pasco County man has been sentenced to death for killing a 16-year-old girl he picked up hitchhiking more than six years ago.

Phillup Partin was sentenced Monday for the July 31, 2002, slaying of Joshan (YO-shan) Ashbrook.

A jury found the 43-year-old Partin guilty in March and recommended by a 9-3 vote that he be executed.

Witnesses testified at trial that Partin picked up Ashbrook hitchhiking and brought her back to his house in New Port Richey, near Tampa. Workers found her body in the woods the next day.

She'd been beaten, strangled and had her throat cut.

Investigators tracked Partin to Fayetteville, N.C., where he was arrested in October 2003.

Allred to die for murders

By Abraham Aboraya
November 26, 2008

SANFORD - Just before Seminole County Judge O.H. Eaton sentenced Oviedo murderer Andrew Allred to death, he asked if Allred had anything to say.

Allred, thin, bearded and clad in a blue jumpsuit, shook his head from side to side. Never once did he look back at the crowd of press, family members and those close to the case.

Eaton sentenced Allred to death for murdering Tiffany Barwick and again for the death of Michael Ruschak. For shooting a third man in the leg, Allred was sentenced to life in prison.

"He's never once said he's sorry," said Janice Ruschak, the mother of Michael Ruschak. "He does know he did something that was legally wrong and he should be punished and he thinks the death penalty is the right punishment. But he's not sorry he did what he did."

Allred murdered Barwick and Ruschak on Sept. 24, 2007. Barwick and Allred had been dating for about a year, and they broke up on Allred's 21st birthday in August.

After that, Allred began stalking Barwick. He hacked into her Facebook and MySpace accounts, sending profane messages to Tiffany's family, pretending to be her, according to police reports.

He got into her bank account and told Michael that the next time he saw him, he was going to kill him. Both Ruschak and Barwick went to the Seminole County Sheriff's Office and asked for help, but deputies said there wasn't enough evidence for an arrest.

Hours later, Allred came to the house in Oviedo and killed Ruschak and Barwick.

"Your life never goes back to normal," Janice Ruschak said. "You can't ever fix the changes that have been made. But I won't be watching the docket anymore."

When Allred drove his truck to the house on Shady Oak Lane in Oviedo, he repeatedly rammed his truck into Barwick's car. He tried to come through the front door but couldn't.

He shot out the sliding glass door in the back, walked past a group of friends he knew, and shot Michael Ruschak in the kitchen. Eric Roberts, who was renting the house where Michael lived, grabbed Allred and tried to wrestle the gun from him, ultimately getting shot in the leg.

Then Allred shot Ruschak two more times, went into the bathroom where Barwick was hiding and shot her seven times. Tiffany died while on the phone with 911.

Both Kimberly Barwick and Tony Barwick were at the sentencing. They told a crowd of reporters after the sentencing that Allred was no longer in their lives.

Both families said they would attend the execution. Allred's case will get an automatic appeal to the Florida Supreme Court.

"You really can't get closure," Chuck Ruschak said.

The Ruschak family has filed an notice of intent with the Seminole County Sheriff's Office, saying the police department should have intervened before the murders. While damages aren't yet specific, the family is seeking more than $15,000.

Both Chuck and Janice have said there's still some anger toward the department.

"Things could have been different," Chuck Ruschak said. "The character and courage my son showed could have been shown three and a half hours earlier that evening."

Janice said she saw Seminole County Sheriff Don Eslinger on television news last week; the Sheriff's Office was announcing a new GPS program to track domestic violence offenders in real time.

"There's still a good bit of 'I don't think it should happen,'" Janice said. "I don't think they go above and beyond to protect and serve. And they should. I do that in my business, and I think they should in theirs. And they would expect it if it was their family member."

The Barwick family said the sentence brings them closure, that Allred is out of their lives. Chuck Ruschak said he would rather Allred spend the rest of his life in prison.

"I think part of that just shows how much of a coward he is," Janice said. "I think that's why he's asking for the death penalty, because he can't do it himself but he thinks it's the right thing to do."

Budget cuts hit public defender

Office may start declining cases; state would have to pick up slack

By Nic Corbett
DEMOCRAT STAFF WRITER

The public defender for the 2nd Judicial Circuit may decide next month to stop representing defendants in some misdemeanor and traffic cases, depending on whether more is cut from the office's budget.

Public Defender Nancy Daniels says her office saw an 8.5-percent cut from last fiscal year to the present one. Another 2-percent reduction happened this fiscal year. Meanwhile, case loads are increasing

"Certainly, having the public defender decline cases is not favored by the Legislature and will end up costing more state money if the cases cannot be absorbed by the new regional conflict offices," she wrote in a letter last month to Chief Judge Charles Francis. "If we are not able to enact some measures that reduce the number of cases our office is appointed to, however, we will have no other alternative."

She said that if her office decides to go forward with the move, the state would have to pay to hire private attorneys to represent the defendants. Other circuits in Florida are taking similar steps.

Right now, the four assistant public defenders assigned to County Court have a case load each of 250 cases or more — a jump of 30 percent over the past couple of years. Daniels said the situation is the worst she's seen in 18 years of service.

But others in the judicial system say that everyone's in the same situation. Cuts are across the board, straining everyone and causing workloads to increase.

"It's affecting everyone, not just here, but statewide," Francis said. "The bottom line is we are all in the same boat here. We have already taken pretty heavy cuts. We're like the Legislature. I don't think they know what the next step is."

Judges are trying to be considerate, Francis said. They're making accommodations for later court appearances and not doubling up on the court docket.

"All the judges individually are doing all they can to assist in their own divisions," he said.

Chief Assistant State Attorney Jackie Fulford said her office is not going to stop prosecuting any cases, even though budget cuts mean prosecutors are short-staffed, too.

"It just means we all have to roll up our sleeves and work a little bit harder," she said.

She said most misdemeanor and traffic cases are resolved at arraignment before a public defender is appointed. But she understands that the Public Defender's Office is worried about not being able to adequately represent indigent clients. Bigger workloads in both offices mean people are going to make mistakes, she said.

"It's going to cause problems in the judicial system," Fulford said.

Circuit Judge Jonathan Sjostrom has seen several lawyers from both offices go to the hospital because of burnout.

"My sense is that the public defenders and the prosecutors are terribly overworked, understaffed, worse than I've ever seen it," Sjostrom said. "You can only ask people to work unreasonable hours and unreasonable demands for so long, and people start getting sick."

If the Public Defender's Office does decide to decline certain cases, it will be following in the steps of other circuits. Miami-Dade County's public defender is refusing to represent all new felony cases that don't involve the death penalty. A judge in September ruled that the office could do so, but the case has been appealed.

Before she makes her decision, Daniels said she is waiting on a third-quarter release of the budget in late December. Her office has been told that some of the funds held back will be restored that quarter.

--------------------------------------------------------------------------------

Justice moving slowly in Taylor case

By SUSANNAH A. NESMITH

A year after Washington Redskins safety Sean Taylor was shot and killed, one of the young men accused of the slaying has pleaded guilty to murder and four others are awaiting a trial that may not occur for years.
Murder cases typically take more than a year to go to trial in Miami, and cases with multiple defendants are particularly time-consuming, experts say.

Taylor's family is eager to see the case resolved, but they understand that justice can be slow, according to family friend and Taylor's one-time attorney, Richard Sharpstein.

''The family continues to support the prosecution and hopes that justice is done in this case, sometime in the not-too-distant future,'' he said.

Venjah Hunte, 21, has pleaded guilty to second-degree murder for a promised sentence of 29 years. Prosecutors may require him to testify against the other four men.

Hunte's attorney, Michael Hornung, said his client was just the driver and never even went into Taylor's Palmetto Bay home the night he was killed.

The other defendants -- accused gunman Eric Rivera, 18; Jason Mitchell, 20; Charles Wardlow, 19;, and Timmy Lee Brown, 17 -- are all jailed in Miami-Dade County. All face first-degree murder charges.

Veteran defense lawyer Terry Lenamon said that before defense attorneys can even begin to take depositions and conduct independent investigations, prosecutors have to gather up all the evidence and turn it over to the defense.

''The discovery process is very complicated. Usually in a case that involves an extensive investigation, it takes a minimum of three to six months for the lead detective to get his reports together,'' Lenamon said. ``The whole team of investigators has to provide their notes, any sworn statements they took and their reports.''

Lenamon was among 10 attorneys representing five young men accused of kidnapping, gang raping and killing Ana Maria Angel, a Miami teenager, in 2002. Four of the men were tried and convicted, the last of them earlier this year. The fifth is still awaiting trial.

In the Taylor case, prosecutors have already turned over hundreds of pages of police reports, phone records and other evidence gathered by Miami-Dade detectives, Florida Department of Law Enforcement and Fort Myers police. All five accused men are from the Fort Myers area.

''Miami-Dade [police] are very thorough in their investigation,'' Lenamon said. ``There is always a lot of material in a case of theirs.''

Prosecutors waived the death penalty for the five defendants in May, a move that eliminates several issues that often delay cases.

But because the remaining four defendants are facing life in prison, defense attorneys are likely to file an avalanche of motions that Circuit Judge Dennis Murphy will have to consider before trial. Among the possible issues:

• Can statements that three of the defendants -- Rivera, Mitchell and Hunte -- gave police be used at trial?

• Can what Rivera allegedly told a fellow inmate, robbery suspect Adyam Devillafuerte, be used against him or any of the other defendants? Prosecutors have not revealed what Rivera allegedly told Devillafuerte.

• Can the contents of a letter Rivera allegedly wrote to a 17-year-old friend in Fort Myers be used? Prosecutors have not publicly released the letter.

Very little new information has been released to the public since the first weeks after Taylor was killed in front of his girlfriend and their baby. Extensive media coverage of the case last winter prompted Judge Murphy to issue a gag order, prohibiting defense attorneys or the prosecutor from talking about the case.

Records show investigators believe Mitchell was involved in an earlier break-in at Taylor's home. He had been there and seen Taylor give his sister thousands of dollars for her birthday.

Doctor Sentenced to 33 Years in Prison for Child Porn

Grant Gross, IDG News Service

A Florida family practice doctor has been sentenced to 33 years and nine months in prison for receipt and possession of child pornography, the latest in a long line of child pornography cases brought by the U.S. Department of Justice.

Dr. Richard Carino was sentenced Monday in U.S. District Court for the Middle District of Florida after being found guilty on July 10.

Carino, from New Port Richey, Florida, was apparently turned in by his wife at the time after she discovered child pornography on his home computer in mid-2005. Carino's wife, Autumn, also pointed out to investigators marijuana that was allegedly her husband's, according to a story in the St. Petersburg Times.


U.S. Drug Enforcement Administration agents searched Carino's computer with his wife's permission, the DOJ said in a press release. Investigators found evidence of child pornography in both Carino's home and office computers, including videos and images of child pornography, and logs and relevant file names associated with Kazaa, a P-to-P (peer-to-peer) file-sharing program.

By examining Kazaa logs recovered from Carino's office computer, the U.S. Federal Bureau of Investigation was able to identify additional child pornography videos that had once been stored on that computer, the DOJ said.

Carino's sentence is part of a nationwide crackdown on child pornography launched by the DOJ in mid-2006. In the past month, 13 other U.S. residents have been sentenced on child pornography charges, five have been

charged or indicted, four have pleaded guilty, and an Alabama man was convicted on a charge of producing child pornography, according to information from the FBI.

In addition, a Washington state man due to be sentenced on Nov. 17 for receipt of child pornography cut off his ankle bracelet tracking device and apparently fled the state.

Carino was charged in January with six counts related to child pornography. The first four counts charged him with possession and receipt of child pornography related to the July 2005, searches of his home and office. He also was charged with two counts of possession and receipt relating to the August 2005, seizure of his home computer. The jury convicted him on all six charges.

Carino was also investigated in 2005 by the DEA for working with an Internet pharmacy to illegally prescribe medications.