Deep Thought

According to the 2000 Census, Florida has about 16 million residents. It's about the same size as the Netherlands. Florida currently imprisons more than 100,000 people. The Netherlands imprisons 14,968. 

Florida must be really safe. Much safer than the Netherlands. 

Nobody Could Have Predicted

Though they had no data to support their conclusions, for years cops in lab coats testified that they could match a bullet from a crime scene to a box of bullets owned by a criminal defendant. As it turns out, they were wrong.

Judge Overturns Jimmy Ates’ Conviction: Use of Junk Science Leads to Release

Press Release
December 17, 2008

Today, pursuant to an agreement between the State and defense, First Judicial Circuit Judge William Stone vacated the conviction of Jimmy Ates. Mr. Ates will walk out of the Okaloosa County Jail later today after serving ten years in prison for the 1991 murder of his wife, Norma Jean Ates, in Baker, Florida. He is the first person in the nation to have a conviction overturned based on the FBI’s disavowal of Comparative Bullet Lead Analysis (CBLA).

“We’re thrilled that the State is finally recognizing the mistake that it made and taking this first step towards justice for Jimmy Ates,” said Bobbi Madonna, Staff Attorney for the Innocence Project of Florida (IPF).

Jimmy Ates is just one of roughly 1500 individuals nationwide whose cases were tainted by CBLA, which the FBI now concedes is a junk science. An FBI review of about 115 of those cases has found that CBLA testimony compromised the integrity of at least 80 trials—16 in Florida alone.

CBLA is a procedure by which scientists claim to be able to link bullets to a particular batch or box on the basis of their chemical composition. In Ates’ trial, FBI Analyst Kathleen Lundy testified that the bullets retrieved from the victim’s body matched the bullets found in the Ates’ family utility room, and therefore they came from the same batch. This testimony had no scientific basis. “Lundy was a fraud peddling a junk science and without that testimony, Jimmy Ates would never have been convicted,” said David Menschel, Legal Director of IPF. Lundy testified about CBLA in at least six other Florida cases.

The State’s case against Jimmy Ates has been suspect from the beginning. Initially, Okaloosa County State Attorney, Curtis Golden, refused to prosecute because the case lacked sufficient evidence. In a highly unusual move, Gov. Lawton Chiles assigned the high-profile case to Duval County State Attorney Harry Shorstein, who also refused to prosecute. Six years after the murder, armed with the FBI’s new CBLA analysis, a third State Attorney prosecuted Jimmy Ates.

Based on the new evidence that has emerged since trial, William Cervone, the special prosecutor assigned to the case, conceded that Ates’ conviction cannot stand. “Bill Cervone deserves praise for righting this wrong, and we hope and expect that other Florida prosecutors will follow his example in other CBLA cases,” said Seth Miller, Executive Director of IPF.

Florida Most Corrupt of all 50 states, DC and Territories

An article out today in the New York Times asks, 'With all the recent hubbub circulating recently around Illinois Governor Blagojevich's spectacular scandal, is his state really the most corrupt?' Well, it depends which measurement you use, but, in short, no.

By sheer number of convicted public officials at local, state, and federal levels, Florida takes the ignoble cake. Our home state boasts 824 convictions in the last decade. That's one conviction every four days for the last ten years.

(It's no coincidence, probably, that the largest seven states by population are also the seven most corrupt on this metric. When the measure becomes convictions per capita, Florida is ranked 14th, and Washington, D.C. first.)

If only they would survey convictions by county. I wonder where Brevard would rank nationally...

Question for Norm Wolfinger

Dear Norm:

If everyone now agrees that John Preston and his dog were frauds, how were they able to always "correctly" pick out the suspect?

Love, 

Yankee Interloper

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.

Deep Thought

If Bill Dillon had been sentenced to death rather than life in prison, rather than being exonerated right now, he'd just be dead. 

Press Echoes Call for Investigation into Brevard

Florida Today, a newspaper out of Brevard County with a daily circulation of 80,000, echoed our call today for Governor Crist to investigate the systemic corruption in the Brevard County State Attorney's Office and Sheriff's Office. The paper quotes James Russo, the local Public Defender, who is also calling for an inquest:

"I have read the comments of our state attorney and the continued attempt to justify the shameful decision-making in this case," Russo said during an afternoon news conference. "This is a case where lawful evidence never existed in the first place."

Florida Today lists dog handler John Preston's now discredited, but alarmingly prolific, testimony in the County as the main impetus for an investigation. The paper also correctly notes that Preston's chicanery, which came to light in Brevard, stretches beyond the borders of that county to all of Florida. "Preston, proven to be a fraud, testified in hundreds of Florida cases, including three in Brevard County that have been overturned: Dillon, Wilton Dedge and Juan Ramos." (The current State Attorney who is refusing to cooperate with calls for an investigation, Norman Wolfinger, was a former defender who helped to clear Ramos and discredit Preston.)

The Innocence Project of Florida had previously produced this video about John Preston, including footage from a 20/20 exposé that aired in the mid-1980's.

More good reasons to appoint a special prosecutor exist, of course, including "a jailhouse snitch and an investigator who slept with a key witness in the case."

Dillon's case and others like it point to rampant collusion in Brevard County between the Sheriff's Department and John Preston. Gilbert Goshorn, a former Brevard County Judge, designed a test in 1984 to determine whether Preston's dog could do what it purported to do. When it failed the test, Goshorn concluded "that the only way Preston could achieve the results he achieved in numerous other cases was having obtained information about the case prior to the scent-tracking, so that Preston could lead the dog to the suspect or evidence in question." We have every reason to believe a criminal conspiracy exists there, and that innocent people are in jail.

Dillon himself added, "It's not about justice for some people. It's about convictions." Then, tapping a seemingly endless well of empathy, he said, "I feel their pain. I'm not angry. This is compassion, sadness."

Florida Today also ran an editorial today using stronger language and calling for the Governor to investigate. "Prosecutors’ mishandling of the cases along with actions by the Brevard County Sheriff’s Office fol­lows a pattern of possible criminal behavior that can no longer be swept un­der the rug."

Preston had testified in countless other cases in Florida, while we know he was an utter fraud. How many times did his testimony put away an innocent person? Public confidence in the hundreds of other cases in which Preston testified has evaporated. Florida Today conlcudes, "[Governor Crist] must act at once to bring those responsible for this and other such tragedies to justice."

• Florida Today editorial, "Our views: Probe the corruption"
  
• Florida Today article from today, "Defender Demands Probe of Office"
  

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Brevard County Drops Charges Against William Dillon

For Immediate Release

Today the Brevard County State Attorney’s Office dropped all charges against William Dillon for the 1981 murder of James Dvorak in Canova Beach, Florida. Mr. Dillon served 27 years for a crime he did not commit, equaling the longest time served by any of the 225 DNA exonerees nationwide. Mr. Dillon joins Juan Ramos and Wilton Dedge as the third man exonerated in Brevard County in recent years.

“At least it didn’t take them three years to do the right thing in this case, like it did in the case of Wilton Dedge,” said Seth Miller, Executive Director of the Innocence Project of Florida (IPF). “Now that this charade is over, maybe they can focus on finding the real killer.”

Mr. Dillon, who has always maintained his innocence, was convicted on the basis of unreliable and false evidence including: subsequently recanted testimony of a star witness who was threatened by and having sex with the State's lead investigator; fraudulent scientific testimony of dog handler John Preston; testimony of a jailhouse snitch whose pending rape charge was dismissed after fingering Dillon; and a mistaken eyewitness identification by a man legally blind in one eye.

“Now that they’ve dropped the charges against Bill, they can start filing charges against the real criminals in this case,” said David Menschel, Legal Director of IPF. “There’s an open secret in Brevard County that there was a criminal conspiracy between the Sheriff’s Office and a fraudulent dog handler in order to manufacture convictions against suspects regardless of the evidence. That’s a crime, somebody needs to investigate it, and people need to go to prison.”

IPF called for the Governor to investigate the conduct of Brevard County State Attorney’s Office and Sheriff’s Office last month when Mr. Dillon’s conviction was vacated. Miller reiterated that call today: “It’s hard to have confidence in any of the convictions in this county given how widespread the corruption is. We again urge Governor Crist to not only investigate this corruption, but to review every case where John Preston testified. There are other wrongful convictions out there that need to be uncovered.”

“We’re thrilled that this cloud has been lifted from Bill and his family, just in time for the holidays,” added Melissa Montle, Staff Attorney with IPF.

The Innocence Project of Florida (IPF) is a 501(c)(3) organization dedicated to finding and freeing innocent people in Florida prisons.

# # #

Jacksonville's New PD Slashes Experienced Staff

Jacksonville's newly elected Public Defender, Matt Shirk, is shaking up Duval county by firing 10 of the office's most experienced defense attorneys. The firings are ostensibly brought on by budgetary concerns, as Chief Circuit Judge Donald Moran noted in the Florida Times-Union that Shirk would likely be able to hire two or three young lawyers for the price of each seasoned professional.

But the very real concern is that Shirk might be sacrificing quality for quantity. Many of these public defenders, with over 300 years' combined experience, were "superstars," says the Times-Union. With the talent gone, "the legal community expressed concern about the quality of legal services the office will be able to provide and the appellate cost to the public." In fact, these lawyers are of such a high caliber, says the same paper, that

At first blush, the criterion for recent personnel cuts... appears to be notable success defending criminally accused people who are too poor to hire their own lawyers.

The list of 10 lawyers fired by Shirk - who defeated incumbent Bill White on Nov. 4 - reads like a who's who of the Jacksonville-based office's stars.

The JaxPolitics blog notes that the impending personnel shortage is not local to Florida:

In addition, many Public Defenders Offices throughout the nation are now overloaded with cases and have serious funding issues that must be addressed. Currently, public defenders in 7 states (including Florida) are either refusing to take on new cases or have filed lawsuits due to overburdened case loads which prevent them from providing effective assistance of counsel.

Says the Times-Union, for example "the office had eight lawyers qualified by the state to try death penalty cases; the firings leave three, and two of those are assigned to Clay and Nassau counties." The firings are making a bad situation worse, first by firing the most talented professionals employed by the county, and secondly leaving the remaining lawyers stretched too thin. Add to that that Jacksonville is the murder capital of Florida, and you've got a recipe for chronic inadequacy.

Two of the defenders who are being forced out, Ann Finnell and Patrick McGuinness, were the subjects of the 2001 Oscar-winning HBO documentary Murder on a Sunday Morning, which told how the Jacksonville Police Department had wrongly accused 15-year-old Brenton Butler of a murder and obtained a false confession by beating him senseless during an interrogation.

The Butler episode calls into higher relief the point that the work of experienced defense attorneys may be the only thing that stands in the way of innocent people being convicted. Were it not for the talents of Finnell and McGuiness, Brenton Butler may have been wrongly convicted.

It makes sense that freeing up money would mean letting go of the most experienced defenders in Duval county. But the Times-Union hypothesizes that Shirk's motives might have been in part to weaken the ability of the county to offer competent defense, or even to punish the most pugnacious defenders that the county had on its payroll. "[McGuinness] also blamed Shirk's endorsement by the police union," they report, "noting several of the lawyers let go were among the most aggressive at questioning officers in court."

Shelly Eckles, one of the "Jacksonville 10," notes she was never interviewed by Shirk, and says she was never disciplined during her tenure at the PD's office, leaving no obvious personality or professional reason for the firing. Mark Woods of the Times-Union recently wrote an article on another one of the doomed, Alan Chipperfield. Woods noted, "Some believe it's politics. Shirk has insisted the reason for the change is money. Chipperfield's salary is $134,000. And while that sounds good to most of us, one thing is certain: Chipperfield could have made more in the private sector."

Many of these defenders, like Chipperfield, took pay cuts when they moved from private practice to the PD. Odd, then, that they were summarily fired when they have previously demonstrated that they are willing to make less money if it means doing the right thing and doing it well. If budgetary concerns were Shirk's sole motivation, he could have asked some of them to take a pay cut while maintaining the viability of the Jacksonville PD's office, but the case of Shelly Eckles shows that that was not Shirk's real motive.

The JaxPolitics blog thinks the problem might be more serious than a politicized department. This situation might have implications for Florida's system of electing Public Defenders as a whole, says the author:

Let’s be honest. How many of us regular folks who aren’t involved in the justice system, are willing to support someone in an elected office who will strongly fight for the rights of an accused person? How many of us are willing to put our votes behind spending money to defend murderers and drug dealers? As evidenced by the recent election in Jacksonville, evidently not enough of us. Yet, with an elected Public Defender the integrity of our justice system requires us to do just that if we are to maintain a healthy legal system.

Meanwhile, those who will not be returning to their offices on January 6th have placed pictures of the Black Spot on their office doors, a reference to the mythical pirate code for being doomed to execution, and a gesture of defiance and unity.

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Deep Thought

Since we now know that Bill Dillon did not kill James Dvorak in 1981, that means the actual murderer has been at large for nearly 28 years.

How Do We Prevent False Confessions?

This is a continuation of yesterday's post on false confessions.

There are numerous techniques police can use while interrogating suspects:
• Utilize the physical environment – usually small but brightly lit
• Ask leading questions
• Provide information about the crime scene
• Adapt a confrontational style / get in the suspect’s face
• Conduct extremely long interviews that last for hours or even days
• Deceive the suspect with false suggestions and/or information, like stories of non-existent physical evidence that links them to the crime
• Tell the suspect if they pass a polygraph they can go home, then lie about the polygraph’s results
• And so it goes...

There are several remedies for false confessions that should be implemented immediately by state law:
• Videotape all interrogations, from the reading of rights to the end, with the tape running continuously
• Set reasonable time limits for interrogations
• Never, ever allow minors and people with reduced mental capacity to be questioned without a parent, guardian, or legal representative present
• Make it illegal for law enforcement to lie to suspects

Some of these are so obvious, I can’t believe they require laws to change them. Why in the world do we allow our children to be taken into some back room and interrogated by the police without our presence? That one’s a no-brainer for me. We need to remember that children are children, regardless of the severity of the crime they’re being questioned about.

In Florida, it’s noteworthy that the Broward County Police Department now records interrogations. We don’t know how many others do so. That’s why the Innocence Project of Florida this year initiated a Public Records Request to all law enforcement agencies in the state, asking for their policies on eyewitness identification and the recording of interrogations. Reviewing the responses should tell us how far we have to go to enact responsible change in these areas.

According to the Innocence Project:

The Supreme Courts of Alaska and Minnesota have declared that, under their state constitutions, defendants are entitled as a matter of due process to have their custodial interrogations recorded. In 2003, Illinois became the first state to require by law that all police interrogations of suspects in homicide cases must be recorded.

Over 500 jurisdictions nationwide, including the states of Alaska, Minnesota and Illinois, regularly record police interrogations. A 2004 study conducted by Illinois officials of 200 locations that implemented this reform found that police departments overwhelmingly embrace the measure as good law enforcement whose time has come.

We can only hope that more states, including Florida, follow suit. Sooner rather than later would be good, too.

*Some of the information in this post was taken from “The False Confessions in the Central Park Jogger Case” written by Elaine Cassel and published on December 17, 2002, at Findlaw.

For more information about false confessions, check out our list of recommended books in the Resource section of our Web site.

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Footage from Bill Dillon's Release

Just uploaded to YouTube, some footage from Bill Dillon's release, including the press availability and Dillon at home with his family for the first time in 28 years.

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False Confessions: Why Aren't We Taking Steps to Prevent Them?

Last Saturday’s Omaha World-Herald asks:

How could so many people admit in vivid detail to a horrendous crime that they didn't commit?

That was the question after the Central Park 5.

After the Norfolk 4.

And now, the Beatrice 6.

The murder case out of Beatrice, Neb., in which six people were wrongfully convicted in 1989 of the slaying of a 68-year-old woman, is a new national record for the most people exonerated in one case by DNA evidence.

Until this case, the record was held by the Central Park 5. Surely you remember that case: In April of 1989, a white female jogger was reportedly gang-raped by a group of juveniles who, incidentally, were black. Five of the boys (ranging in age from 14 – 16) confessed, were sentenced and served time in prison. Once the boys confessed, it was all over for them. As we mentioned in a previous blog post, “confession acts as the strongest piece of evidence that outweighs any reasonable evidence to the contrary.” Juries often find confessions so compelling, they consider other parts of the trial incidental. It turned out that one Matias Reyes was identified as the rapist through DNA testing, and he confessed to acting alone.

In the case of the Norfolk Four, four young sailors falsely confessed to raping and murdering a young woman in her Norfolk, VA, apartment. “Soon after the trial, the four men recanted and claimed that their admissions were coerced through the threat of the death penalty.” Later DNA testing proved that another man, acting alone, committed the crime. Unfortunately, three of the four remain in prison, serving life sentences without chance for parole. As recently as November 26th, Gov. Kaine has stated that their original confessions are the biggest roadblock to his pardoning them.

But they're asking for a whole series of confessions, and I can't give you the number, but 15 or 20 that were given at different points in time by different people, to all be discarded. That is a huge request.

Perhaps someone should tell Governor Kaine that, according to the Innocence Project, “In approximately 25% of the wrongful convictions overturned with DNA evidence, defendants made false confessions, admissions or statements to law enforcement officials.”

In Florida’s earliest DNA case, Jerry Frank Townsend, who is mentally retarded with the mental capacity of an eight year old, was convicted of six murders and one rape and sentenced to seven concurrent life sentences. In 1979, Townsend was arrested for raping a pregnant woman in Miami, Florida. During the investigation, he confessed to other murders. The confessions were largely the consequence of Townsend wanting to please authority figures, a common adaptive practice by someone with his mental capacities. Police took Townsend to murder scenes and recorded his confessions. Townsend was ultimately cleared by DNA and released on June 15, 2001. He had spent twenty-two years in prison. Read more about Townsend’s case here.

But back to the Beatrice 6. While experts say the case seems to fit patterns of other cases (although not necessarily the Norfolk Four), “young people with low-esteem or mental problems who were abusing alcohol or drugs,” the case had a particularly unsettling addition -- a police psychologist who played a role in the interrogations has previously served as private therapist to some of the defendants. According to the World-Herald, “Saul Kassin, a professor of psychology at the John Jay College of Criminal Justice in New York City and co-author of Confessions in the Courtroom, and Richard Leo, a law professor at the University of San Francisco said that a psychologist acting in the dual role of trusted therapist and criminal interrogator would have had a powerful place of trust and persuasion over suspects.” Apparently so powerful that only one of the Beatrice 6 defendants refused to confess.

An attorney for one of the six said recently, "I'm fully convinced now that the police, if they wanted to, could get any borderline personality person, who has alcohol and drug issues, and scare them to death and get them to confess to anything."

We know why the police do it. Confessions are, as expert Kassin says, the “gold standard” in criminal trials. But how do they do it? And what can be done to prevent even more false confesstions?

We'll look at some of the answers to these questions in our next post.

*Some of the information in this post was taken from “The False Confessions in the Central Park Jogger Case” written by Elaine Cassel and published on December 17, 2002, at Findlaw.

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The Moral Case for Investigating Brevard County

I've seen a disconcerting sentiment expressed by some of the comments on sites like FloridaToday that have covered the release of William Dillon. A good number of people seem to think that an investigation into the questionable practices of Brevard County would be a waste of taxpayer dollars. I couldn't disagree more.

If money is really their principle concern, these cynics would do well to realize that, depending on the number of people freed by these investigations, it might be cheaper to organize an investigation than it would be to keep those prisoners incarcerated for the rest of their sentences. But that argument has a particularly callous ring to it, and for a good reason.

The real motivation is not money, obviously, but the administration of justice. Why is the government commissioned by the people? I have said previously that Governor Crist is charged with faithfully executing the laws and the Constitution. The presence of innocent people in prison represents a serious miscarriage of justice. Furthermore, when reasonable people have cause to believe in a pattern of widespread injustice, the government has a responsibility to right its wrongs.

Taxpayer money spent on such an endeavor would not be a waste, nor even a luxury: this is the fundamental purpose of government.

When we say things like, "the evidence merits an investigation," there is a missing premise, but it's one most people would agree with. It is that one of the duties of government is not only to administer justice fairly, but to act diligently when a corruption of justice is apparent. That is why we are calling for such an investigation.

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