The Libby Perjury Trap

My recent post criticizing Special Prosecutor Patrick Fitzgerald seems to have angered some, including one purported Yale Law School alumnus (whose comments have been deleted because they were left using what appears to have been a bogus email address). So I want to re-direct this Libby discussion. Its not about Bush, and its not about the war. Its about a perjury trap. Read more below the fold.

Former Villanova Star Howard Porter Dies After Beating

While not strictly “criminal law” related,” I post this because it is a significant Philadelphia story. For those who are Villanova graduates, as I am (Law, ‘92), we are grieving this tragic, tragic death.  below the fold is today’s Philadelphia Inquirer story.

Duke 12, Cornell 11

The Duke men’s lacrosse team today defeated previously unbeaten Cornell 12-11 in the NCAA tournament semifinals, earning a spot in Monday’s title game against Johns Hopkins. The top seeded Blue Devils are favored to win their first national title, and have already earned a large dose of redemption. Meanwhile, the jackbooted thug Mike Nifong, who sought to advance his career by prosecuting three innocent former teammates of the Duke team readies himself for a hearing on ethics charges arising out of his failed jihad against the Duke Three. If there is even a small measure of justice in the Universe, the Duke team will triumph on Monday, and Nifong will be disbarred.

Patrick Fitzgerald is a Thug

The Associated Press this afternoon reported that Special Prosecutor Patrick Fitzgerald has asked federal district judge Reggie Walton to sentence Scooter Libby to 2 1/2 to 3 years on the obstruction of justice charges on which Libbly was convicted several months ago. 2 1/2 to 3 years for supposedly lying about something that wasn’t a crime, for which no one was charged, and for which Fitzgerald KNEW someone else (Richard Armitage) was responsible before anyone even asked Libby a single question, and before Libby ever appeared before a grand jury. The Libby case should never have been brought, and Patrick Fitzgerald should have folded up his tent and put his jack boots in the closet. Instead, he chose to call Libby before the grand jury repeatedly in what was a blatant perjury trap. Fitzgerald is a disgrace to the Justice Department and the legal profession.

Congratulations to the Duke Lacrosse Team

I would like to extend my congratulations to the Duke Men’s Lacrosse team on their win over the hated North Carolina Tar Heels in the quarterfinals of the NCAA Tournament. The team now advances to this weekend’s Final Four where, I predict, they will claim the title that Mike Nifong and a cowardly Duke administration conspired to steal from them last year. Let’s go Duke!

Prosecutors Experience “Blowback” from Botched Duke Lacrosse Case

The National Law Journal this week reported that prosecutors across the nation report that they are beginning to experience the adverse consequences of Mike Nifong’s baseless jihad against three Duke lacrosse players. The prosecutors claim that defense attorney’s are increasingly making the argument that the Duke lacrosse prosecution is proof that defendants are often wrongfully charged and prosecuted. Preumably the argument is meeting with some success, or the prosecutors wouldn’t be whining about it. The fact is that what happened to the Duke students happens more frequently than any of us would prefer to believe or admit. Its about time that the prosecutors began to reap the whirlwind from the abusive tactics that they so often employ.

DNA Clears Convicted Murderer 20 Years Later

Bit innocent people don’t get convicted, right? From today’s New York Times:

A man who served 19 years in prison for the sadistic murders of his companion’s two children walked out of the Union County Courthouse flanked by his family members after a judge vacated his convictions on Tuesday.

Prosecutors contended that DNA evidence in the case would probably change the mind of the jury that convicted the man, Byron Halsey, 46. They also said that the DNA evidence pointed instead to Cliff Hall, a neighbor who testified against Mr. Halsey at his 1988 trial and who is currently in prison for three sexual assaults.

Mr. Halsey, who was handcuffed, sat crying silently during the brief proceeding in Union County Superior Court before Judge Stuart L. Peim.

As he left the courthouse, Mr. Halsey said, “I thank my Lord and savior Jesus for keeping me.”

Asked about his emotional state, he smiled and said, “I don’t want to get in more trouble.” He added, What was done to me was criminal at best.”

Barry Scheck, co-director of the Innocence Project, the Manhattan legal clinic that revived the case, said: “It’s a miracle that Byron is here with us, because if ever there was a case where there was a risk of executing an innocent man, it was this case. Because the facts of the case were so horrible.”

Prosecutors had sought the death penalty for Mr. Halsey in the 1985 killings. The crimes were particularly chilling — Tina Urquhart, 7, was raped and strangled, and her brother, Tyrone Urquhart, 8, died after four nails were hammered into his skull with a brick. The children’s bodies were found in the basement of a rooming house in Plainfield where Mr. Halsey lived with their mother.

Mr. Halsey, a factory worker, was convicted in 1988 of two counts of felony murder and other charges, and sentenced to two life terms and 20 years. He was not eligible for the death penalty because he was not found guilty of purposeful and knowing murder, a capital offense, one of his lawyers said.

His release comes at a crucial time in the state’s debate over abolishing the death penalty, which has not been carried out since 1963. Last week, the Senate Judiciary Committee passed a bill to replace the death penalty with a sentence of life without the possibility of parole for the most serious crimes. A similar bill was introduced in the Assembly last November. There are nine men now on death row in New Jersey.

Mr. Halsey was released on $55,000 bail. In a statement, the Union County prosecutor’s office said he was still facing charges of aggravated sexual assault, two counts of aggravated manslaughter, two counts of felony murder, child abuse and possession of a weapon for an unlawful purpose. He was scheduled to appear in court again on July 9.

The office would not comment on whether or not it intended to pursue those charges in a new trial. But Mr. Scheck said he had not heard anything from prosecutors to indicate that they would not move to dismiss the charges in July.

Mr. Halsey will live in Newark in a supervised setting where he can get job training, Mr. Scheck said. He will be required to wear an electronic ankle monitor for the next 45 days.

“It was a minor miracle that he was not sentenced to death,” Mr. Scheck added. “At the trial, a few of the jurors just didn’t believe in capital punishment.”

Mr. Halsey contacted the Innocence Project, which is affiliated with the Benjamin N. Cardozo School of Law at Yeshiva University, after exhausting his appeals. Advanced DNA techniques that were not available at the time of the trial showed that the evidence had no link to Mr. Halsey. It did, however, show a match with Mr. Hall, whose DNA samples were already in the state’s database because of his convictions in sex crimes that occurred after the Urquhart children were killed.

The prosecutor’s office said Tuesday night that it was looking into bringing charges against Mr. Hall.

Mr. Scheck noted that in about a quarter of the 201 wrongful convictions that have been overturned with the use of DNA evidence, people had confessed or admitted to crimes they did not commit. Mr. Halsey signed a confession after 30 hours of interrogation, Mr. Scheck said. Mr. Halsey’s lawyers said he had a sixth-grade education and severe learning disabilities.

Dolores Mann, one of his original lawyers, said Mr. Halsey had maintained his innocence from the beginning.

“I’m hoping the case sheds light when the bill goes to the Assembly, so the death penalty will be taken off the books,” she said.

Margaret Urquhart, the victims’ mother, said in a statement: “I knew Byron loved Tyrone and Tina. It didn’t make sense to me that he could have done this. I always had my doubts, but I didn’t know what to do about them. I am thankful that the DNA testing has identified who really did this to my children and that Byron is being released today. I want justice done in this case.”

Another lawyer for Mr. Halsey, Raymond Brown, said his client was looking forward to one thing in particular after being released.

“He said something about taking a bath,” Mr. Brown said. “He hasn’t taken one in 20 years.”

Source: The New York Times

Federal Judge Orders Release of NYPD Secret Files

A federal judge has ordered the NYPD to release the rest of its secret files relating to its preparations for the 2004 Republican National Convention. Why this was even an issue is just absurd. The notion that the NYPD can keep “secret” files is very troubling. We are not a police state, try as the NYPD Rudy Giuliani and his ilk might try.

NY Governor Submits “Landmark” DNA Legislation

It is legislation Governor Eliot Spitzer says will better solve crimes and exonerate innocent defendants.

The Governor and Lieutenant Governor David Patterson announced today they’ve submitted what’s being called landmark DNA legislation.

The bill would expand the state’s DNA databank, improve the methods for collection and preservation of that evidence, and greatly enhance the ability of defendants to use DNA evidence to prove their innocence.

Under current law, the state only collects DNA samples from about half of the defendants convicted of crimes.

The new legislation mandates the collection of DNA from every person convicted of a crime, as well as individuals on probation, on parole supervision, or registered as sex offenders.

In addition, the bill extends the statute of limitations for crimes in which law enforcement has recovered the perpetrator’s DNA.

There will be a new office charged with the responsibility of studying cases for defendants that have been exonerated.

About half of convicted criminal defendants in New York are now required to give samples.

Source for post: NACDL.org

How the Innocent End Up in Prison

From Jamie Spencer’s Austin Criminal Defense Blog:

My wife is a fan of what I call “Forensic Files, etc.” – meaning all of those true crime TV shows that have popped up over the last 5 to 10 years or so. (Despite being a criminal defense lawyer, I can barely stand to watch those shows myself.)

I walked by the living room as she was watching the end of last night’s Dateline NBC “Scenes from a Murder” episode about an ultimately still unsolved investigation of a young woman’s death.

I’ll quote the part that caught my ear later in the post, but for starters, here’s my wife’s recap of the events.

Young woman found dead. Years of investigation with multiple investigators lead to suspects including: the fraternity boyfriend, the neighbor (eventually incarcerated for a different violent crime), and even the brother, father and mother are accused of complicity at one point, albeit by a disgruntled out of town police officer who became upset when he was no longer being considered for an acting/directing role in a possible movie.

Bottom line: unsolved violent crime. Unlikely to ever be solved.

Now here’s what caught my attention. As Keith Morrison, the narrator, is wrapping up, he says:

As for [the Sheriff], he says he’s determined still that someone will be charged with the murder of Jennifer Morgan.

That someone be charged. Not that the killer is finally found. That “someone be charged”.

And now to innocents in prison.

The feeling that someone must pay, especially for gruesome and violent crimes, is so strong, that it often leads police, D.A.’s, and juries to feel compelled to “solve” a murder with a ‘Guilty’ verdict.

After all, we know someone did it, right? If no one is convicted, justice has not been served.

How many murder investigations have actually lead to indictments by prosecutors of “the only person we know who to charge”? Or indictments of “the spouse because they are the best suspect”?

Follow that up with a trial where the jury is given no other option as to who will ever go to prison for this crime…and you end up with defendants convicted on extremely shaky evidence.

I share Jamie’s concern. The notion that we’ve got to get somone for this all too often leads to a lack of critical judgment in the process, especially in cold cases. We see that even more in cases that have become politically correct, as I noted in connecgtion with the recent Alabama indictment. I do not presume to have a solution, but so long as the problem persists, I will labor to help solve it.

Source: Austin Criminal Defense Lawyer