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JD Features:
Volume 1 Issue 1 Archived Stories
First published 2/8/99
Jeff Dicks A Lawyer could save his life
Debra Milke Innocent on Death Row
Jim Thomas Championed Wayne Cservak
Herman Wallace Black Panther Railroaded
Jimmy Segura Behind bars for a murder he did not commit
Shirley and Ray Souza Wrongly Convicted Grandparents
Jeffery Modahl Wrongful conviction of child sex abuse
George White Unjustly imprisoned for murder
Darlie Routier On Death Row Innocent of Murder
David Millgaard Exonerated in Canada
Felito Mendoza Another wrongful conviction of child sex
abuse
"Hurricane" Carter Free at
last!
Jeffrey Stewart Dicks
by
The account below is by Glenn M Larkin MD DABFM FABFE. His email address is nc15960@pol.net Glenn's account is very coherent, and practically makes the case for the defense, complete with legal cites. Currently, Jeff Dicks does not have a lawyer.
This is a copy of a letter sent by Glenn Larkin to the Tennessee chapter of the ACLU.
Re: Jeff Dicks June 8, 1998
As a forensic pathologist with over 25 years experience, I have reviewed the trial transcript of the State of Tennessee v. Jeffrey Stewart Dicks, and I call to your attention the Kafkaesque situation in which he finds himself with the material for a strong appeal, and no lawyer to help him. Jeff Dicks has a tentative execution date in September, and as the record will show, serious constitutional claims for a new trial remain.
Briefly, DICKS and another man, Donald Wayne Strouth, were convicted of the capital felony murder of James Keegan on February 15, 1978 in Kingsport Sullivan County, Tennessee, during a robbery of a clothing store. The state tried to implicate Dicks as an actual participant in this murder, in order to get the death penalty. Even if the state changes its theory, and uses a conspiracy theory (which it cannot prove) there are still nagging doubts concerning this case, and perhaps a serious violation of the ruling in Enmund v. Florida, 373 US 782.
The ACLU has a long and honored history for fighting for the underdog, and has achieved some success in the past in helping those who need help the most. In this felony murder case, there looms a host of constitutional issues, some of which were never appealed.
In my opinion, after reading the transcript and the autopsy report as well as other investigative material, not only was Jeff Dicks not at the scene of the murder of which he was convicted, but a technical application of the rules of hearsay evidence so gutted Jeff's defense that he could not present any viable defense at all.
Had this suppressed testimony been presented, it is more than likely that the jury would have reached a different conclusion. See Kotteakos v. United States, 238 US 750, Faulder v. Johnson, 81 Fed 515 (5th Cir.), Matthews v. Etheridge, 424 US 319
I have amassed a fairly large file on the case, dealing with both a dispute of material fact, and a dispute of the application of law, citing both Tennessee case law, and federal law.
These arguments include, but are not limited to, the following:
1. The evidence that puts Dicks in the store where the murder took place is an alleged set of footprints. These prints were allegedly seen, but not documented -- no pictures, no casts and not a thing. These alleged footprints, which could not be identified as belonging to Dicks, cannot be placed in time. Further, the "expert" witness who testified admitted that he did not know what he was doing. This alone must be considered reasonable doubt. (see In Re: Winship, 378 US 90, State v. Griffin, 208 NC 407, 436 US 904).
Circumstantial evidence is a powerful tool, but cannot be built on a frame of straw. (see United States v. Rosa, 17 Fed 2d 1531 2d Cir ) The prosecutor took these mysterious footprints -- poor evidence at best -- and proffered by an admitted non-expert acting as an expert -- and built up a creative scenario of what happened in his summation, using statements not in the transcript. It is a good story, but pigs do not fly. (see Hicks v. Oklahoma, 447 US 343, Thompson v. Loudville (?)362 US 199, Johnson v. Florida, 370 US 546, Jackson v. Virginia, 443 US 307).
2. Perhaps the most egregious aspect of the case concerns the suppression of hearsay evidence that tended to exculpate Dicks altogether. The judge in this case, Calhoon, was aware of the complex legal matter involved here. A co- defendant, Donald Strouth, was previously tried and convicted of this crime. In his trial, several witnesses testified that Strouth told them segments of a statement, which put together, amount to a confession of sorts.
Strouth said to different people that: (1) he hit his victim in the head with a rock; (2) that he had to hurt him (the victim); (3) he had to slit his throat -- statements admitted against his penal interest under the Tennessee rules of evidence, in the trial State v. Strouth. This is already part of a public record -- the trial of Donald Strouth. (See State v. Donald Strouth, 620 SW 2d 467)
If I am correct, the state, by allowing these statements into evidence in Donald Strouth's trial in effect vouched for the trustworthiness of that testimony, and used it to help convict Strouth. Now, the court ruled in the case of one key witness (Barbara Davis) that the same evidence -- because it tends to exculpate the defendant (?) -- is now no longer trustworthy. Since this testimony is already used against Strouth, it cannot hurt him, and he does not need the protection afforded by its suppression. Other witnesses, also offering evidence of Dicks' innocence were summarily prevented from testifying. (See House v. State. 911 SW 2d, 705, 714 Tenn. US 97)
Furthermore, in a series of cases -- the United States Supreme Court stated that a need for fundamental fairness demands that the defendant be given a fair opportunity to present his case. (Chambers v. Mississippi, 410 US 284, in Re: Winship, supra, United States v. Augers, 427, Morressey v. Brewer, 409, US 471, State v. Oliver, 333 US 257, Pointer v. Texas, 380 US 400.) By suppressing evidence that tended to corroborate Dicks' version of the events, the state gutted any defense, and denied him due process.
3. There is no physical evidence linking Dicks to the act of murder. Much material was submitted for analysis; none was used by the state because all that was submitted was either not tested, or negative. A negative result cannot be used to inculpate, can it?
4. A coat, burned by the Dicks family -- not by Jeff -- is claimed by the state to have had blood stains on it, stains belonging to the victim. This proffered testimony was not proven, and can be accepted only if the non- evidence that Dicks was in the store at the time of the murder. "Could have" or "might have" is far below the standard needed.
5. The prosecutor tried to pull a fast one by submitting a pair of blood- stained jeans into evidence, knowing full well that they were Donald Strouth's and Dicks' pants -- they were introduced as Strouth's at his trial, and then allegedly Dicks'. They did not both wear them at the same time. After the prosecutor stipulated that those trousers were not Dicks' and they [were] removed from sight, the damage was already done.
6. Even the medical evidence was misleading. According to the pathologist who did the autopsy, the victim was first rendered unconscious by a blow to the head and, when unconscious, had his throat partially cut. Because he was unconscious, the victim did not endure any pain or suffering. There is in my mind after review of the autopsy report, some question about how long it took this victim to die. (See State v. Zagorski, 701 SW 2d 808,814 -- relates to depravity of mind.)
7. This is not trivial, since it goes directly to the heart of the claim of the aggravator, that the crime was particularly heinous or atrocious. (See Houston v. Dutton) A proportionality review should show that the penalty was excessive.
8. There is more, but I feel that you have enough to whet your appetite here. The bottom line is that a possibly innocent man can be electrocuted because he cannot get representation to present an appeal. The ACLU is supposed to have as its mission the correction of perceived constitutional violations. The deprivation of life, legally or illegally is the most serious denial of civil rights.
9. From what I have read (but not confirmed), Governor Sundquist -- a lawyer (?) will not exercise any clemency -- will not even consider this majestic non-legal right of a sovereign, believing that a jury is never wrong. You and I know otherwise, as do the approximately 75 men and women released from death row since the reinstatement of the death penalty. So much for stare decis!
10. I would be willing to discuss this whole case with one of your representatives, or supply your office with the raw notes I have concerning what I have, as well as an analysis of the medical report (autopsy protocol) which I believe draws the wrong conclusions. If you are interested, please contact me and I will make myself available by telephone at your convenience, given a few day's notice to prepare an organized report.
11. At the very least, I urge you to take a serious look into this case.
12. As a closing thought, and a check on my credentials, let me point out that I wrote 14 chapters published in Cyril Wecht's collection, "The Forensic Sciences", including the chapter of sharp force trauma, published by Matthew Bender, which I believe you might have in your library.
I realize that the bizarre antics of Shirley Dicks do not endear her to the Tennessee bar; she is not on death row. Her son is. Regardless of her actions, he may be innocent and has no representation as his execution date nears.
I thank you for reading this letter, and I pray that your organization will act assertively on this tragic case.
Sincerely,
Glenn M Larkin MD DABFM FABFE
For more information on Jeff Dicks, please visit his website.
He can be contacted at:
Jeff Dicks # 85451
RMSI u2a
7475 Cockrill Bend Rd
Nashville, Tn 37209-1010
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Tempe, Arizona, USA
Written By
[Editor's Note: The following account is an edited excerpt from "Women and the Death Penalty in the United States: 1900-1998," to be published this fall or early in 1999 by Praeger Books. Author Kathleen A. O'Shea is an activist and a social worker who does advocacy work with women on death row. Her research is on women prisoners with a focus on women and the death penalty. Her first book, Female Offenders: An Annotated Bibliography, was published last year by Greenwood Publishing Inc. Ms. O'Shea has graciously agreed to share her account of Debra Jean Milke's account of injustice with the readers of Justice: Denied. Justice Denied Magazine is proud to have Kathleen O'Shea on its editorial staff. For more information about Debbie, see http://www.debbiemilke.com]
From the chapter, Women Sentenced To Death In Arizona, edited excerpt from, "Women and the Death Penalty in the United States: 1900-1998," by Kathleen A. O'Shea.
Debra Jean Milke: White; Currently on death row. In 1990 Debra Jean Milke was convicted of first-degree murder, conspiracy to commit first-degree murder, kidnapping and child abuse in the death of her 4-year-old son, Christopher. The child abuse conviction was overturned on appeal. Since 1991 Debra has been the only woman on death row in the state of Arizona.
At the time of her son's death, Debra was living with her son and a roommate, James Lynn Styers. She worked at an insurance company while Styers, a disabled unemployed veteran, watched his 2-year-old daughter and Christopher. The Supreme Court records state that Debra persuaded Styers and his friend Roger Mark Scott to kill her son because she didn't want him to grow up to be like his father and wanted to claim Christopher's insurance money. Debra Milke's Mother, Renate Janka, tells her story this way:
After a disastrous marriage to Mark Milke, who was addicted to both drugs and alcohol, Debbie wanted to forge a new life for herself and their son, Christopher. She had been in love with Mark, but his addictions, his physical and sexual abuses, his numerous times in jail leaving Debbie and Christopher without income or any human support made it impossible for her to keep the marriage going and her son safe.
Debbie knew that Christopher loved his father and for that reason she granted Mark liberal visiting rights and, it is true, "SHE DID NOT WANT HER SON TO GROW UP LIKE HIS FATHER" -- after Christopher's murder, this statement by Debra came back to haunt her. It was taken completely out of context and used by the police and the press as a motive for Debbie's alleged conspiracy in the murder of her only and beloved child.
In 1989, after Mark was released from prison, Debbie let him spend a day with Christopher. Later, when she went to pick Chris up, Mark was high and acting irrationally, and ended up attacking Debbie. He grabbed her by the throat to try to choke her. In the struggle, he took her car keys and threatened to kill her and take Chris. When he refused to give back her car keys, Debbie took Christopher and ran. Petrified that Mark would come after them, she hid behind a dumpster until she was sure he was not pursuing them. By the time she felt safe enough to come out, it was late at night. She was stranded with her son and without her car. It was then that she found a phone and called Jim Styers whom she had met through her sister Sandy.
She knew Jim did not drink, smoke, or curse, and that he went to church on a regular basis, so she trusted him. When Jim learned of her situation he offered to let Debbie and Christopher share the apartment with him and his 2-year-old daughter. At first, Debbie refused, but she had been staying with Mark's mother, and she was afraid Mark would find her if she returned there, so she agreed to stay with Styers temporarily until she could find and afford a place of her own.
Debbie was never romantically involved with Jim Styers and at her trial Debbie testified that they had a strictly business arrangement. Styers, a Vietnam veteran, had killed before and frequently hallucinated about women and children he'd killed in Vietnam. But Debbie did not know that when she agreed to stay with him.
At the time Debra moved in, Styers was undergoing psychiatric treatment and was on heavy medication. Perhaps because of her own state of mind, Debbie didn't notice anything strange about him, and he was always respectful to her. Her idea of him began to change when she found he had purchased a gun and ammunition and had taken the children (then only 2 and 4 years old) to the desert "snake hunting" with a loaded weapon. She was angry about that and wrote to tell me and several other people what he had done. The gun, which was kept in a holster hidden in Styer's closet was still in its normal location the day Chris was reported missing. Later, when the police asked Debbie if Styers owned a gun, she said yes and showed it to them.
Debbie wanted Styers to keep his guns out of the children's reach. Some time before the fateful day of December 2nd, Debbie found some bullets in the apartment and was furious thinking that the children could have found them as well. She put them in her purse to prevent the children from finding them, thinking she would later dispose of them, but in the course of events forgot all about them. On the day of her arrest, her stepmother searched her purse, found the bullets, and at Debbie's trial speculated in the worst possible light about what having them in her purse might mean.
In August 1989, Debbie began working for an insurance company in Tempe. Since Mark had never returned her car, she relied on Styers for transportation. Styers, unemployed and living on a government pension, began to see himself as Debbie's protector and only hope in a somewhat obsessive way. For her part, Debbie was happy to be working toward supporting herself and her son and was making plans to move out and be on her own. She had started to check out affordable housing in Tempe and had found a good day school for Christopher. Debbie's employer had offered her a benefit package with a rider for a nominal standard life insurance for both her and Christopher. This was another point that was terribly misconstrued by the prosecutors in her trial. Debbie never purchased a separate insurance policy for Christopher, as the press and prosecutors insisted she did.
In September of 1989, my husband and I visited Debbie and Christopher and were very proud of how she was tackling her life and problems. We wanted to help her out, so we bought a car for her and she insisted on setting up an account to pay us back, which she did until the time of her incarceration. Debbie also had a new boyfriend by then, but neither of them was interested in rushing into a marriage. Both expressed a desire to get their careers on the way and to wait and see what might happen in the future.
During our visit in 1989, we met Jim Styers. He had a very negative reaction to the way we were encouraging Debbie to set up her life. By then, she had begun to think about moving out on her own and getting a place for herself and Chris, although she did not actually begin looking for an apartment until early November when she felt she could afford it. Debbie also felt obligated to give Jim enough time to find someone else to share his household expenses. He had helped her in her time of need and she did not want to leave him stranded. Therefore, in late November, after she was approved for an apartment, she told Styers and us that she would move out in January 1990, to give him five weeks to find a roommate. Styers begged Debbie to stay with him, which she had no desire to do, and one week later, her son Christopher, the love of her life, was dead.
There is speculation that Styers may have felt that if Debbie lost the only thing that mattered to her in life, her son Christopher, she would have no one to turn to except him, but only Styers really knows what he was thinking.
Debbie has always been terribly naive and trusting, and when Styers asked if he could use her car to go to the mall on December 2, 1989, she readily agreed because she had planned to stay home and do house chores that day. Christopher overheard them talking about it that morning and asked his mother if he could go to the mall with Styers and have his picture taken with Santa. Debbie asked Styers if this was O.K. and he agreed. Christopher selected his favorite outfit for the picture and dressed himself. Debbie checked to make sure he looked OK and then hugged him good-bye, not knowing she would never see her son again.
Styers left with Christopher in Debbie's car and went to get his friend Scott, about whom Debbie knew very little. He then took Christopher and Scott to get pizza and afterward drove out to the desert. There, one of the two men shot Christopher in the back of the head three times, killing him instantly. It is still unclear who actually did the killing because both men deny having pulled the trigger. It was Scott who led the police to Christopher's body.
We now know that after the murder of my grandson the two men drove to the mall and stayed there for a while before Styers drove Scott home. Afterward, Styers went back to the mall and contacted the mall security to say that Christopher was missing, and he called Debbie at 1:00 p.m. and told her that Christopher was nowhere to be found.
I talked to Debbie the same day this happened. She was incoherent and terrified. All of us immediately thought Debbie's ex-husband had kidnapped Christopher. I told Debbie to trust the police (a bad mistake). Debbie thought a child molester might have abducted her son, never once considering that Styers might not be telling the truth. Our son-in-law called us with the news that Christopher had been found murdered in the desert and I collapsed at the news. But it got worse a few hours later when we were told that Debbie had "confessed" to Christopher's murder to a Detective Saldate, the homicide investigator. This was completely incomprehensible to me. I know my daughter, and I knew that could not possibly be true.
The day after Christopher was reported missing, Debbie was barely able to function and stayed with her father and stepmother in Florence, Arizona. She had no idea then that either Styers or his friend, Scott, had been interrogated by the police. Detective Saldate flew to Florence to interrogate Debbie, calling ahead to tell the Pinal County sheriff's office to take Debbie to the county jail. Before Saldate arrived, Debbie was sick with fear over what might have happened to Christopher.
Once he got to the jail, Detective Saldate excluded all other law enforcement officers from the interrogation and took Debbie into a room with a steel door and closed it. The two were completely alone the whole time. Later, Saldate claimed he made notes during their conversation which he destroyed and never showed to anyone. There was no audio or video recording made during the interrogation either. Later, however, reportedly from memory, Saldate wrote up Debbie's alleged "Confession" -- a document Debbie never saw or signed.
Saldate began his interrogation by telling Debbie that Christopher had been murdered. Debbie was trying to grapple with the impact of this news, but does not recall that Saldate read Debbie her rights as he claimed. Since no one else was present, it was her word against his. But even after Debbie heard the news of Christopher's death, she never grasped that anyone thought she might be implicated in this horrible crime.
In the midst of her grief, Debbie remembers Saldate telling her he was a "friend" and that it would be good to clear her conscience. When she finally realized what he was all about and what he was trying to get her to say, she asked to be allowed to make a phone call and asked for an attorney, but she was never allowed to contact anyone before, during, or after Saldate's interrogation. Saldate later stooped so low as to suggest that Debbie had tried to get on his good side by "exposing herself" to him. One can only imagine the kind of ego needs that would prompt a man in his position (that is, with total power over her) to say such a thing. At the end of his interrogation, Saldate told Debbie to speak to no one and he left with her in his patrol car.
Debbie had never been in trouble nor involved with law enforcement officers in her life and was totally ignorant of the whole process. Now, I truly regret that I had encouraged her to trust the police.
After interrogating Debbie, Saldate intimidated several prospective witnesses to get them to say things to incriminate her. He went so far as to tell Debbie's sister, Sandy, that he would have her arrested and brought to Phoenix if she did not agree to testify against Debbie. He used the same tactics with Debbie's friends.
Debbie has always denied any knowledge or participation in Christopher's death, and she was given a lie detector test that confirmed her statements. However, these results were not admissible in court. On the other hand, a totally fabricated confession built completely on Saldate's memories -- a man with known political ambitions -- which my daughter never saw or signed, was taken as the gospel truth. It gives one cause to doubt everything about the so-called "Justice" system.
I have learned now that trials are really big boy games. They have very little or nothing to do with the person on trial. Attorneys who make the best moves win and the others lose. Wins often translate into votes and career advancements, and courts reward winners while punishing losers. There is no effort whatsoever to understand or break the cycle of cause and effect that perpetuates crime.
The mass media have immense potential to effect positive change, but instead prefer to appeal to our basest instincts, entertaining us with prurient details of brutal crimes and trivializing human suffering. Truth finding takes time and resources, but horror headlines sell. Political ambitions of elected officials in the judicial and law enforcement system are valued higher than human life. Innocent people are sent to death row and the entire legal apparatus covers it up because politicians will not admit mistakes. I cannot comprehend that this can happen in a democracy. My daughter is innocent, but she is on death row because someone wanted to get ahead politically -- someone she never even knew before her son was murdered.
The Supreme Court handed down a Warrant for Execution in December, 1997, at the end of court business before the holiday break. The justices based their decision on their 1993 ruling, stating that they had thoroughly reviewed the case at that time. In the 1993 Review, the second court-appointed Public Defender had to take Debbie's case despite personal reservations about his already heavy workload. No new evidence could be introduced in the first appeal, but in the following years, a private attorney and investigator collected an astonishing amount of evidence and filed a Post Conviction Relief (PCR) Petition. Since the Arizona Supreme Court based its 1997 decision on its ruling of 1993, it appears that the PCR had not been responsibly handled even though it was the court's responsibility to do so because it was a death penalty case.
Today Debbie is a piece of property belonging to the state of Arizona. She lives in a single cell on lock-down 23 hours a day. She is not allowed personal phone calls and is allowed only non-contact visits behind a plastic wall with a prison official present. To see a visitor she is strip searched and shackled and the entire unit has to go on lock-down for her to be able to leave her cell. As she walks across the yard, "Milke's coming" is shouted all over the unit. I can share with you what Debbie wrote to me about her life on death row:
"We all cope in different ways and I have learned to cope by being alone. I cannot possibly explain what I feel psychologically, but I know that I (only) feel totally at ease in my room by myself. When I think about or know that I'm to be taken out of my room for some reason, I feel like a defenseless child who is about to be abused and there's Nothing I can do about it. Yes, I'm an adult and have a stronger mind than a child, but abuse is abuse whether it happens to a 10-year-old or a 34-year-old. This place is my abuser. The terror and fear inside is overwhelming. No one knows what it feels like. I only feel safe in my room (when nothing is happening). But I know I won't feel completely right or safe until I'm out of here. I see the chains and shackles and my heart races and I say inside "No, please don't do this to me. I'm not dangerous. Why do I have to go through this?" It's horrible, Mom, absolutely horrible. This is one of the reasons I have so much trouble going up front. It's not because I don't want to see anybody. I often look out my window towards the main building and think about a day when I will be leaving this place. I imagine the scene and even hear myself saying, "This is the last day I'm ever chained up. The pain I feel is indescribable and I'll never be the same again. I will never get over this, ever. My heart has been ripped to shreds."
Renate Janka, Debra Milke's mother, left her peaceful home in Switzerland to come to the United States to do battle against the system. In Europe, the injustice to Debra is clearly seen for what it is... in this country, it has been an uphill struggle.
My daughter is basically a shy person who is petrified at the thought of making a spectacle. Being a "freak show" upsets her so much that she is on a roller coaster of depression. I have only been able to see her once since I arrived in Arizona. Strip searches before and after visits are one of her biggest traumas. She begged me in a letter not to come visit her and to understand how it was not possible for her to appear "upbeat" any longer, even though she would really like to hug me and cry for hours.
A warrant for Debbie's execution was signed and her execution date was set for January 29, 1998. No one can ever know how frightening and torturous that is. Debbie received a stay of execution on January 12, 1998 and was granted authority to file a Writ of Habeas Corpus. This writ is the decision of one Federal Judge who is assigned to review the case and rule on the constitutionality of the proceedings. Prior to receiving the stay, Debbie had to go through an actual "dry run" of her execution. In her own words she describes the nightmare.
"Because of the court's actions and per DOC policy, I had to go through the motions as if an execution was going to take place. I had to sign papers (last meal, witnesses I wanted present, disposal of my remains), my veins were examined by a doctor, the chaplain stopped by for a visit, my room was searched every day, psychiatrists came around, and I was going to be moved into an isolation cell where I could be watched continuously by a video camera. All of this had to take place because DOC did not receive word of the stay of execution. Anders (my attorney) didn't file it until January 12th. The experience was morbid and horrific, not to mention psychologically traumatizing. Our warden and the staff didn't want to put me through this but they had to until the stay was official. I agonized for days on end until that damn thing was filed."
I would tell people to believe the incredible happens -- in a so-called democracy anyone can be deprived of the most fundamental human rights. This can happen to your child! Debbie's recent trauma of being forced to go through the actual motions of her execution right down to her last meal and what method of execution she would prefer is human torture at its cruelest.
My daughter has declined interviews because her first tries at that resulted in tabloid headlines and articles full of misquotes and false statements. She is barely holding onto her sanity and prays daily that her case will be reopened and the true facts established. The most difficult thing for Debbie to endure was to lose her beloved son in a brutal murder. She never had a chance to say good-bye to him or grieve for him in a proper way. Since her incarceration she has lost almost everyone she loved. First, her only child, then her mother-in-law in 1992, her grandparents (my parents) in 1994 and 1996, and now her father -- and in his obituary, his family chose not to even mention Debbie among his family survivors.
Debbie has written on her thoughts about facing death -- something a mother imagines going through first. Just when she had begun to see a little light at the end of the tunnel in her life, she was abruptly robbed of everything. She was young and these were the most precious years of her life. But even beyond that, she has been portrayed as a depraved monster and is denied the most basic human rights. The system continues to dehumanize her and deny her human dignity. For this sorrow, a mother has no words.
Writing from prison where he sits on death row, Jim Styers
asked Debra to read Psalm 51:
Have mercy upon me, O God, in your goodness, in your tenderness wipe away my faults; wash me clean of my guilty, purify me from my sin.
I am well aware of my faults, I have my sin constantly in mind. Having sinned against none other than you. Having done what you regard as wrong.
You are just when you pass sentence on me, blameless when you give judgment. You know I was born guilty, a sinner from the moment of conception.
This is the closest to an admission of guilt that Debra has ever received from Jim Styers. Debra Milke remains on death row in Arizona today.
Please visit her website at www.debbiemilke.com
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Champions Of The Innocent:
Juror Jim Thomas Helps Free Innocent man
The Chattanooga Times
Juror refuses to accept injustice By Pam Sohn
Jim Thomas doesn't look like a man who would buck the system. But to free an innocent young man that Thomas grudgingly agreed to convict after eight grueling hours of jury deliberation in a Dalton courtroom, he used the system.
"I was a juror," he says. "And I helped make a wrong. It had to be righted."
Unconvinced that 21-year-old Wayne Cservak was guilty of molesting his Dalton girlfriend's 13-year-old son, Thomas spoke for Cservak at the sentencing hearing. Thomas had told the judge that he was essentially browbeaten into agreeing with 11 other jurors that Cservak was guilty. And he told the judge that he believed the young man innocent.
Instead of the 100 years without parole Cservak was facing, the judge ordered the sobbing young man to serve only 10 years without parole. But Thomas wasn't appeased. Convinced that Cservak, whom he'd never seen before the trial, was innocent, Thomas committed his own money to hire a new attorney to appeal the case.
"I talked to my kids about it. It was their inheritance," Thomas says. "They said, 'Go for it, Dad.' "
One week after the appeal process began and new scrutiny came to the case, the alleged victim recanted his story and told prosecutors he had lied. Apparently the boy's mother and Cservak were talking about marrying. The boy didn't like that idea.
At 69, chemist and businessman Thomas had some familiarity with the American legal system. He'd been involved in civil suits. But the president and co-owner of All Purpose Adhesive Co., Inc. says he had never seen a criminal trial before. And he wasn't impressed.
"Lawyers swear by the jury system. I have my doubts," Thomas says.
The May 1997 trial of a man facing 100 years in prison with no parole took a mere two days.
"Throughout the trial," Thomas says, "on all the counts listed by the state, I had reasonable doubt."
The teen's testimony about what allegedly happened seemed contrived, Thomas says. And the boy's attitude as he was questioned also gave Thomas pause. When asked on the stand why he didn't immediately report the allegations, the youth wisecracked, "Go figure." The boy alleged that Cservak had molested him night after night for almost two weeks. The sexual assaults would happen regularly between 3 and 4 a.m. as he slept on the sofa in the living room, the boy said.
The 13-year-old said he was scared and he didn't think anyone would believe him "because of the past and just about everybody in my family had been molested, but they didn't tell nobody." On further questioning, he testified he was sleeping on the couch because he thought there were ghosts in his room. Then he said he was in the living room because his mother had rented out his room for a week to a cousin.
Further testimony brought out the fact that the child already had been caught in one lie by investigators. On the other hand, Thomas felt that the defendant appeared real and believable. Thomas believed Cservak when he denied the boy's allegations.
Aside from those observations, Thomas felt there were holes throughout the case. But in the first vote by jurors at the trial's end, 10 people said Cservak was guilty. Two said he should be acquitted.
"Then two hours later," Thomas recalls quietly, "there was just me."
That situation remained the same for the next six long hours, leaving Thomas exhausted and confused.
"I had my own gut feelings about this trial. And I knew I had to convince these other people that a molestation didn't occur. But I didn't get anywhere. And after awhile, I realized it wasn't going to get anywhere." Thomas says.
Why were the other jurors so unmovable?
"I don't know," Thomas says. "But they were absolutely and unequivocally not convinced by anything I said.
"There you are -- there are 11 people against you and it's a lot of pressure. It can make you have some doubts as to your own convictions.
"I felt I was unable to convince any of my fellow jurors, so I gave in to their views," he says with a long sigh.
"But after the verdict was read in the courtroom, I still felt it was a miscarriage of justice."
Another juror in the case, James Blackwell Jr., says he believed the boy and thought the youngster was just scared.
"He was obviously under oath at the time we heard the case. You have a minor testifying in court that a person molested him. And it was hard for him to talk about it," Blackwell says.
There was other testimony Blackwell feels was convincing, as well. "How else could he (the child) know there was sperm on the rug?" Blackwell asks. But he acknowledges that jurors did wonder why Cservak's attorney didn't request DNA testing.
Blackwell, like Thomas, found jury deliberations trying. There was no hollering and screaming, he recalls. But "it was nerve-racking. It was much more than I ever expected. I went in at first saying he was guilty, but after the first two hours (of deliberation), I had mixed emotions. All that discussion opens it up. I guess that's the whole point."
Blackwell, though he lives Dalton, didn't know what had happened after the trial's end.
"I'm shocked," says Blackwell, after learning that the case was appealed and the teen recanted his story.
After the trial, Thomas couldn't let go of his anguish.
"I thought to myself: I am my brother's keeper. And I knew I had to do something if I could."
But pleas for mercy at Wayne Cservak's sentencing hearing brought little help. Thomas looked at the sobbing Cservak and realized the young man "didn't have a friend in the world in this town." Then as the judge spoke Thomas caught mention of Cservak's right to appeal. "I knew he'd only be able to get a public defender," Thomas recalls.
After talking with Cservak's mother, Thomas hired Dalton attorney Robert Adams to represent the man he'd helped send to prison. Adams acknowledges the rarity of Thomas' dedicated action.
"It's unheard of," the attorney says. "Not only in Georgia legal history, but in the entire American legal history as far as I can tell."
For Cservak, it paid off. On Dec. 29, one week to the day after Adams won a judge's order granting appeal, Cservak's young accuser told Conasauga Judicial Circuit prosecutors that he lied.
That same day, Conasauga Assistant District Attorney Kevin Salisbury quietly filed a motion to dismiss the case. By that time, Cservak had spent nearly a year behind bars. The young man was released that day. Conasauga Judicial Circuit District Attorney Kermit McManus says the case was prosecuted correctly.
The morning after Cservak's release, Thomas had breakfast at the Cracker Barrel with Cservak and his family before they left to go home to Florida. Cservak was happy. In fact, he was beaming, Thomas recalls.
"Wayne shook my hand and thanked me. He was bubbling over with happiness. He couldn't stop grinning."
But the two made no particular plans to stay in touch.
"I told him to send me a Christmas card next year and let me know how you're doing," Thomas says.
Cservak, through attorney Adams, declined an interview. Was it worth it, spending thousands to help someone he didn't know?
"Yes," Thomas says in his quiet way. Public support since the teen recanted his story has been gratifying. "People have stopped me on the street and thanked me for what I did."
He adds, "I'm glad it worked out the way it did, but if it were 10 months ago, I would have hung the jury and walked out and never had anything else to do with it."
But he didn't, and he says, "I had decided to follow
this through to the bitter end. Fortunately it was not a bitter end, but a happy
end."
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We've known Herman since 1994. He has never stopped trying
to prove his innocence. The law in Louisiana is based on French law. Herman has been in
solitary for 25 years. We have corresponded with him at length and in depth, and have
visited him several times. Herman invariably reaches out to help others. He is a
courageous and caring person, in spite of the wrongs against him. He has written a brief
first-person account of his case, hoping for some help. I've slightly edited his writing
for clarity. -- Clara
ChipnClara@aol.com
Herman Wallace, Political Prisoner?
By Herman Wallace -- Editor, Clara A. T. Boggs
On January 10, 1974, I was convicted of the 1972 murder of Brent Miller, a security guard who happened to be white. This was around the time of the "Prison Movement" around the country. There was "Death On the Yard," Folsom Prison; The San Quentin Six, from the murder of the revolutionary George Jackson; and, there was the infamous "Attica." Then, deep down in the swamp of Louisiana, we had the death of a white security guard at Angola Penitentiary, a prison dominated by black prisoners. All security guards and personnel were white. It is significant to mention race, because it played a role and continues to play a role in the frameup against me.
The times were sweeping the country with change, and that change was making its way to our swamp at Angola. After Guard Brent Miller's death, fear struck the hearts of all security guards who were guilty of having beaten, mangled, and even killed inmates who could not be controlled. The guards became so fearful that they refused to work unless they were allowed to carry weapons. The National Guard was called in to fill in for those who refused to work, but peace was still far from arriving.
On May 5, 1972, along with three other black men, I was charged with Miller's death. At approximately the time of Miller's death, prison records show that I was already in the license plate factory, with no way possible for me to leave the scene of the crime and be at that job without being seen by security guards at various check-point gates. According to inmate witnesses, blood was all over me, yet as I passed each check-point gate and was given a thorough shake-down (search), no security guard ever testified to seeing blood on me at any time. I was not in the area, and prison records prove this.
The problem was that Albert Woodfox and I were pushing for change, and were quite vocal about it. Our affiliation with Leftist groups and organizations made us targets. The press played this up to the hilt, with headlines reading, "A racial uprising where a white prison officer was killed in a Black prison dormitory." The controversy caught the attention of the FBI. They decided to infiltrate my Defense Committee, using FBI agents Gill Schafer, and Husband, to use illegal tactics (they planned to forcibly take me from the court room, using arms). I acquired this information by using the Freedom of Information Act (FOIA).
During the State and FBI team investigation, evidence was fabricated and witnesses were planted so they could get only Woodfox and me convicted. A bloody fingerprint, possibly of the actual killer, for example, was tested against the four men charged. It belonged to none of them, so this test was dropped as if it never existed.
Prison inmates testified, and swore that no promises were made to them, and that their testimony came of their own free will. Years later, I discovered that Warden C. Murry Henderson, a judge, and the Secretary of Corrections, approved and carried out agreements made with these inmates for their testimony during the trial where I was convicted. I have the documents showing that the prison administration paid these witnesses cartons of cigarettes per week, letters seeking clemency and time cut for others who testified for the State. I have forwarded all of this information to the court for post-conviction relief. After my conviction, I was placed in an isolated cell for punishment, and I have remained here ever since.
In 1990, Woodfox and I both filed for post-conviction
relief. Soon afterwards, Woodfox's conviction was overturned, but he has been held in the
Amite, Louisiana Parish jail pending further litigation. The State wants to retry him! He
is scheduled to be tried again on June 16, 1997.
TANGIBLE EVIDENCE
1. The State is introducing clothing which their own star
witness testified as having belonged to him when he testified at my trial. The State will
now say that the clothing belongs to Woodfox.
TESTIMONIAL EVIDENCE
2. The State will allow a white inmate, who was not in the penitentiary at the time of Miller's death, to testify that Woodfox told him that he actually did the killing. This is a game that is going on around the country in order to keep particular convicted felons behind prison walls. The inmate who is to testify against Woodfox as a tactic to win his own freedom is named Harold Vincent.
I, on the other hand, am waiting for the Court to set an Evidentiary Hearing date so that I may establish the constitutional claims I raised in my Post Conviction Application for relief. However, since 1994, the State has intentionally impeded my case to prevent the judge from giving me the ruling I am due -- A REVERSAL!
The State and the FBI have committed every dirty trick possible to frame me for this murder. Of course, they believed I would never find out the truth about their demonic behavior, because the FBI and the D.A.'s files were then considered confidential. That is, they were -- until R.S. 44.1, "Public Records" was established. But how does all this fit into my innocence? The point I am making is that if I was actually guilty of this crime, why would the authorities plant evidence, create false witnesses, discard valuable evidence, and then place me in an isolated cell for TWENTY-FIVE (25) years, denying me of the most basic human needs in this 20th Century?
I am innocent of the death of Guard Miller, and I vow to fight this farce to the last pulse in my veins.
To all those who support me, to the righteous, and to innocent people who simply don't know any better, there is an injustice here. A tragedy that must not end in ruin, but instead, be brought to justice -- PEOPLE'S JUSTICE!!!
Peace be unto you.
Write to Herman at:
Herman Wallace
DOC# 76759-Main Prison EX-L/D U-3-R (#204)
Louisiana State Penitentiary
Angola, Louisiana, 70712
For more information, or to offer funds to help Herman get his case heard, write to: ChipnClara@aol.com (Would appreciate knowing if you contact Herman)
Additional notes: Herman was convicted of an armed robbery
as a young man. He'd almost done his time when the frame-up occurred. He escaped once, and
was living a peaceful life, but was caught and sent back to prison. Because of the escape,
he was put in lockdown, where he has been for almost 25 years. Herman is currently working
on an appeal. His co-defendant, Albert Woodfox, has won a retrial. We are expecting that
Herman may also win won. He has NO money, however, except for the pittances we send him
for stamps and typewriter ribbons. Herman argues his case well (remember, he was in
another building when the killing occurred) and he has documents for lawyers to review. He
is pushing (again) for a new trial. I have personally talked to the lawyer in Florida who
recently testified for him in the case.
We were befriended by this noble man behind bars when news reached Herman of our daughter's wrongful conviction. We are still trying to free our daughter, but also want to see Herman Wallace freed from a politically motivated false conviction. He was a "Black Panther" active in trying to better prison conditions.
After my daughter's horrible verdict, we sent a newsletter to anyone in our address books. One
reached Dianne Brause, who'd taught a writing class in Herman's prison (probably by
correspondence). She and Herman began writing, continuing for years. Dianne sent our
newsletter to Herman: he wrote to us, offering help. He and his friend, Jeffrey Clark,
drafted a pro per appeal for my daughter -- the very one which persuaded Justice
Springer. Our present appeal for my daughter is based on Springer's dissent which, in
turn, was based on Herman and Jeff's work. Jeffrey is the primary legal brain on criminal
matters; Herman is the civil law expert.
Herman has inspired us. There's a feature about him in "The Angolite" (Angola's prison magazine, one of the top of its kind in the country), as one of the "lifers." Angola has more lifers than any prison in the world. Herman gives free help on cases to the women in Louisiana's counterpart to Angola. Herman and Jeffrey were our teachers in legal things, telling us what the lawyers had no time or inclination to tell us. Herman could have become a bitter, ugly person, but he has chosen the high road. Herman may be one of the people who's been in maximum security the longest. Herman recently testified in the Curtis Kyle trial, and was a big reason (maybe the ONE reason) Kyle is no longer on death row. A remarkable man. I encourage you to support him.
(signed) Clara A. T. Boggs
To contact "The Angola Two Defense Committee", contact Scott Fleming.
Please visit The Angola Two Website
For updates on Herman's case see www.angelfire.com/md/tsunamicjustice
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THE FACTS OF JIMMY SEGURA'S WRONGFUL CONVICTION
by Donald W. Jordan, Attorney for Jimmy Segura
Jimmy Segura, now forty-two years of age, has been wrongfully confined to prison on a life sentence for almost twenty years. In 1978, Randy Bliss, then a homicide detective with the San Bernardino, California, Police Department framed him for the murder of David Leon, the twenty-one year old son of then- Homicide Detective Angel Leon, in order to falsely make it appear he had solved the crime. After David left an all-night restaurant in the city's west side barrio alone about 4:00 a.m. on March 26, 1978, Easter Sunday Morning, his body was reported to the police about 10:00 a.m., after it had lain sprawled in public view for about six hours on the steps of a downtown school. David, whose wallet had been taken, had been shot once in the eye.
But for another murder reported at the same time, David's father, Det. Leon, who was intensely disliked by many in the Hispanic community stemming from the time he served as a "one-man gang squad," would have been dispatched to the scene of his own son's murder. Nearly everyone thought the murder was revenge against Det. Leon, and the police and city officials were desperate to find the killer. Segura, who had nothing to do with the crime, was at home that night with his family and girlfriend. Defended by an inexperienced attorney trying his first murder case, Segura was convicted on suborned perjury after Detective Bliss coerced two witnesses whom other officers later coerced into testifying against their will at Segura's trial.
The false evidence came from Rick Riggins and Nick Cummings. Both were then heroin users, as was Segura, who also had a prior conviction of voluntary manslaughter. That offense had occurred four years earlier when Segura was seventeen and fired at a carload of youths who had threatened him in front of his family's home less than a year after youths from the same warring neighborhood had shot and wounded him from another car in front of his house. As a result, Segura was well-known to the police and turned out to be a likely candidate to be framed for a murder with which he had nothing to do.
Here's how it happened. Three weeks after the still-unsolved murder, Bliss heard from a Pismo Beach police officer that Riggins' victim of a felony assault had said that Riggins had told his estranged wife that he had been with two guys in a car in San Bernardino when they had killed a cop's kid. Although Riggins had made the false statement only to induce his wife to take him back, and although he denied knowing anything about the murder to Bliss for hours, Bliss falsely told him they had other evidence that Riggins was at the scene of the murder and that he would be prosecuted for it if he did not name the killer. Exhausted by the assault earlier that day, as well as by a day of heavy drinking and hours of interrogation, Riggins gave in about midnight and falsely told Bliss that "Jimmy," whom he had met only a few weeks earlier, had fired the shot. The next morning, when he tried to explain that he had not really seen the murder and had only made the statement because he was exhausted, Bliss informed him that now that he had a taped statement, Riggins would for sure be convicted of first degree murder if he backed out. This was Bliss' only lead in the case and he was not going to let it slip away.
Bliss' next step was to coerce Nick Cummings to go along with Riggin's story. To do this, he first had Riggins buy heroin from Cummings. With sales of heroin and several burglaries which he had in fact committed also facing him, he could be threatened with fifteen years in prison if he refused to go along with Riggins' false story. Bliss then arrested Cummings and kept him away from heroin until his withdrawals were very severe (he was lying on the floor in his own vomit with his shirt off). Then Bliss began to interrogate him, not only threatening him with prosecution for David Leon's murder if he did not go along with Riggins' story, but also with the fifteen years for the burglaries and heroin sales. When Cummings persisted for hours in denying knowing anything about the murder, Bliss brought Riggins into the interrogation room to persuade him. This finally worked. Cummings finally made a taped statement confirming what Riggins had said -- but Cummings can still be heard on the tape whispering to Riggins that Riggins would have to tell him what to say. And, like Riggins, Cummings denied the truth of what he had said the next day. He had been kept all that night handcuffed to a motel bed, since the jail would have refused to accept him in his condition and have sent him to a hospital. This would have made it too easy for Cummings to challenge his coerced statement.
Prior to trial, both Riggins and Cummings tried to back out of their evil deals with the police. Knowing that their testimony would put an innocent person in prison for life, both independently attempted suicide prior to trial. Riggins was persuaded to continue with his perjury in part by fear of being prosecuted for the murder, in part because of a phony arson case which was brought against him, and in part because the police falsely claimed that Segura was connected with the Mexican Mafia, a prison gang. (The Department of Corrections later proved this claim was false.) Cummings was persuaded to continue his perjury only after his very experienced and able attorney, Deputy Public Defender Bill Russler, appointed to defend Cummings on the murder case as Segura's co-defendant, withdrew from the case. This happened just a few days after Russler had sent the prosecution a memo summarizing the testimony he was prepared to present at trial from ten witnesses who confirmed exactly what Cummings had been claiming -- that he had spent the entire night of the murder with Riggins and thirteen others in Riggins' apartment injecting Dilaudid (synthetic heroin). This evidence, of course, developed by Juli Seaman, Russler's investigator, an attorney who had just passed the bar and had been working as a public defender investigator to put herself through law school, meant that neither Riggins nor Cummings had been with Segura the night of the murder and could not have seen him shoot David Leon even if he had, which he had not.
Three weeks after he was appointed, Cummings' new attorney, David Whitney, now a deputy district attorney who says he does not remember anything about Seaman's alibi evidence, but that he would have discussed it with Cummings if he had, convinced him to plead guilty to accessory to the murder. He later said he did so because it was good plea bargain for Cummings, because the burglaries and sales of heroin charges were dismissed or not filed so that Cummings would only be exposed to a maximum of two years in prison rather than fifteen. Cummings thought he was assured of being placed on probation for not testifying on Segura's behalf. However, the day Cummings was actually sentenced to prison, just two weeks before Segura's trial started, Cummings was offered a new deal by the police: that if he testified in accordance with Riggins' story, he would be released from custody the day he finished his testimony.
This is exactly what happened. Both Riggins and Cummings falsely testified that they had been with Segura when he suddenly shot David, a non-drug-using college student who had supposedly been riding around for two hours with Riggins, Cummings, Segura, and Segura's supposed girlfriend, the imaginary "Rita," who was supposed to have been passed out while Riggins drove around in her imaginary maroon Mustang Mach I, while they injected Dilaudid, drank beer, and smoked marijuana. Notwithstanding the preposterous nature of the prosecution's theory, "Rita" and her Mustang were never found: "Rita" did not exist and heroin users do not aimlessly drive around in the middle of the night while injecting drugs, especially not in conspicuous cars when they are also drunk. How did Segura and David, who had never met, hook up with one another? Even if they had, why would a "straight-shooter" like David, who had no criminal contacts, willingly go with them in the first place? Segura was convicted.
Even though the court reporter heard Cummings' whispered statement to Riggins that, "You gotta tell me what to tell 'em," when she prepared the transcript for the appeal, she did not hear it at trial, so the prosecutor was free to argue that the statement was not on the tape. This was never mentioned in the brief filed by Segura's appointed appellate attorney. Even if the jury listened to the tape during deliberations, however, they probably would not have heard the statement anyway, since the police were permitted over objection to play a copy of the tape which the defense had never heard. This occurred when the prosecutor claimed that the original tape had been damaged the night before it was to be played to the jury when Bliss had attempted to play it. In addition, the prosecution's criminalist and pathologist both concluded right after the crime that the body had probably been shot on the steps where it was found, but after the prosecution adopted Riggins' story that the body had been dumped at the scene, both testified that the body "could" have been dumped at the scene. Moreover, Riggins' admitted at trial that he had read the article in the local newspaper which appeared the day after the body was discovered which stated that the police thought the body had been dumped at the scene. The paper corrected this police conclusion in a later article, but by this time Riggins was in Pismo Beach and did not see it. All this is a matter of record.
Even though Segura's attorney knew of Cummings' alibi witnesses, he never called them as trial witnesses. For some reason, he did not even call Segura's real girl friend, Olga, whose declaration filed in 1991 confirmed that she had been with Segura from midnight on the night of the murder. Jimmy's mother, home that entire night, was also not called to witness. Nor did he stress the fact that, while Bliss first contended that Riggins had said the two-hour "ride" started "before 11:00 p.m.," at trial, after the police had learned that David's godmother had seen him at the restaurant she owned about 4:00 a.m., Riggins testified that the "ride" started "after 2:00 a.m." Segura's attorney did, however, bring out that right after Cummings was promised to be let out of jail the day he finished his testimony against Segura, he made a statement claiming that the others in "Rita's" car had dropped him off alone to eat and picked him up afterwards -- an obvious attempt to account for how David could have been at a restaurant from about 3:00 a.m. until 4:00 a.m., when he started riding around with them earlier than that. He also brought out that although Bliss had claimed that Riggins had at first said that Segura made a call to Riggins' apartment to be picked up, Riggins' apartment had no telephone.
Perhaps worst of all is Bliss' blatant perjury at trial. He testified that there was no tape recording of his initial interrogation of Riggins at Pismo Beach because his tape recorder batteries had run down. There is no doubt that this is false because in 1991, the California Attorney General's office provided Segura's attorney with a copy of that very tape. On it, Riggins can still be heard to say many things utterly inconsistent with known facts about the murder. These include that the body was dumped in Del Rosa, in northeast San Bernardino, about six miles from where the body was actually found in southwest San Bernardino at Second and H Streets, and that they dumped the body without even stopping the car when, in fact, the body had to have been carried over forty feet from where the car was parked to the steps of the school. Significant also is Riggins' response to Bliss' question about what the parking lot looked like near where the body was dumped. Riggins replied, "That's why I didn't want this to happen." Bliss then said, "No. It's okay, you'll . . . you know we'll start with generalistics."
JIMMY SEGURA'S HABEAS PETITIONS.
All the details set forth above, as well as many more tending to show Segura's innocence,
have been included in the nine habeas corpus petitions which have been filed on his
behalf. For years, Riggins and Cummings have declared under penalty of perjury that they
were coerced into testifying against Segura, that all their testimony was false, that
Bliss knew it and that if they are prosecuted for committing perjury at the trial, so be
it. Cummings first told the truth about his false testimony to Segura's defense attorney
in 1979, but the attorney unfortunately informed the police about what Cummings was doing
and the police, pretending to help the attorney get at the truth, instead swooped down on
Cummings and the attorney and seized the tape of Cummings' recantation. This prevented the
attorney from having Cummings tested by a polygrapher who was standing by for that
purpose. No habeas petition was filed as a result of Cummings' recantation. When Segura's
trial attorney informed his appellate attorney of what had happened, the appellate
attorney wrote that it was the trial attorney's job to file a habeas petition. The trial
attorney wrote that it was the appellate attorney's job. Neither informed Segura of
Cummings' recantation.
Segura's first habeas petition, a very brief petition filed in 1986 on the court's form by Segura's trial attorney, was filed when Riggins, who did not know that Cummings had also recanted, first came forward with the fact that he had lied at Segura's trial. The petition was not even supported by a declaration from Riggins, and incorporated only Cummings' one-line denial of the truth of his trial testimony, with no details. While this petition was pending, on which an order to show cause was issued by the trial court, both Cummings and Riggins gave Hans Vander Veen, a district attorney's investigator, a detailed statement confirming that they had lied at trial. Neither Segura's attorney nor the court considering this petition was informed of these statements, so the court denied the petition, although he did so "without prejudice." Perhaps worse still, during Vander Veen's interview with Riggins, he made Riggins promise not to tell anyone that he had lied at Segura's trial because, as the tape still clearly shows, he did not "want to have Nick Cummings' death on [his] hands." In spite of this undeniable attempt at dissuading a witness, Vander Veen still works for the San Bernardino District Attorney's Office.
All this and much more was set forth in Segura's eighth habeas petition, which included for the first time Seaman's alibi evidence proving that Riggins and Cummings were not with Segura the night of the crime. Seaman was located in 1993, after San Bernardino Superior Court Judge Dennis G. Cole denied Segura's seventh habeas petition after issuing an order to show cause but without giving him a chance to prevent evidence at hearing which would prove his innocence. Seaman had been so shocked by the injustice she had seen in Segura's case that she gave up the deputy public defender's position that she had been promised and moved out of San Bernardino to another state, getting completely out of criminal law. She had saved her file because she had always hoped that someday it would be of use in keeping an innocent man from spending his life in prison.
In January 1995, San Bernardino Superior Court Judge Bob N. Krug issued an order to show cause on the eighth petition. He appeared ready to actually grant a post-conviction hearing on the case, which Segura has never had. In denying the attorney general's motion to dismiss the petition because it was a "successor petition" (i.e., a petition raising the same claim as a petition which has already been denied), Judge Krug said, "As I read the petition, one can't help but be impressed with the fact that if the allegations which the petitioner has made are true, some very serious things have taken place resulting in the conviction of a person who is innocent of the crime."
However, the attorney general then petitioned the Second Division of the Fourth District of the California Court of Appeal to dismiss the habeas petition. This conservative court consists of five justices: two were previous deputies in the San Bernardino District Attorney's Office, one was previously a deputy in the Riverside District Attorney's Office, and two were previously civil attorneys practicing in business-oriented law firms. A year after briefing had been completed, the panel of three justices who heard the matter (the ones who had not been in the San Bernardino District Attorney's Office) ordered Segura's eighth petition dismissed. This occurred in October, 1996. As a result, on April 23, 1997, Segura's attorneys filed his ninth habeas petition in the California Supreme Court, case no. S060768. This petition consisted of 672 pages plus 1,662 pages of supporting documents.
Segura's ninth petition alleged the same four claims for relief that were raised in the seventh and eighth petitions: (1) that he was convicted on Rick Riggins' and Nick Cummings' false evidence, which was suborned by the police; (2) that the district attorney withheld exculpatory evidence from him at trial; (3) that his trial attorney rendered ineffective assistance of counsel (however, this was largely because of the police deceit); and (4) that Segura is factually innocent of the crime.
On October 8, 1997, the clerk of the Supreme Court sent a letter to Deputy Attorney General Carl H. Horst, who has been opposing Segura's efforts to obtain a hearing since 1991, requesting an "informal response" to the ninth petition addressing two points. While requesting an informal response is not as strong as issuing an order to show cause, it is a very common way for the supreme court to obtain more information about a case.
The first point on which the attorney general was asked to informally respond was whether or not Segura's claims are barred under the doctrine of the law of the case by virtue of the 1996 opinion of the Court of Appeal, written to compel Judge Krug to dismiss Segura's eighth petition. In that opinion, the Court of Appeal concluded that, even assuming Segura's first through sixth petitions were inadequate and ineffective, as Segura claimed, the eighth petition was barred as a "successive petition" because it raised claims which had been denied by San Bernardino Superior Court Judge Dennis Cole in dismissing the seventh petition in 1992. It had been apparent to Segura's supporters and attorneys that Judge Cole had sought to whitewash Segura's case by coming to the preposterous conclusion that there was "almost" enough evidence to convict Segura even without Riggins' and Cummings' testimony when in fact there was no other incriminating evidence whatsoever. A former police officer himself, whose son is a deputy sheriff, Judge Cole also went out of his way to comment that the court found "no indication" that either the San Bernardino Police Department or any other agency had falsified incriminatory evidence or suppressed exculpatory evidence in the case.
Segura's attorney's are very concerned about this point, now that the Supreme Court has focused on it, because they filed the ninth petition in the Supreme Court without having filed a Petition for Review of the Court of Appeal's opinion in the Supreme Court. They felt that such a step was unnecessary since all the same issues are raised by the ninth habeas petition and the normal procedure when a habeas petition is denied in one court is to file another in a higher court. The attorneys are concerned that judges on the high court who are unsympathetic to any habeas petition, irrespective of the petitioner's innocence, may hold that the Court of Appeal's determination that the eighth petition was a successive petition bars the Supreme Court from ever considering any subsequent petition, even if one has never before been filed in the Supreme Court. Obviously, if the Supreme Court does adopt this unfair and novel rule, the matter will be raised again in the federal courts, although in the meantime Segura will continue to languish in prison .
The second point on which the attorney general was asked to informally respond was on "the merits of the petition." Segura's attorneys regard this as a very positive indication, since it means that for the first time ever the attorney general will have to respond specifically to the facts alleged in support of Segura's four claims, including factual innocence. The United States Supreme Court has held that a sufficient showing that a conviction occurred as a result of a fundamental miscarriage of justice, such as factual innocence, will excuse procedural bars to a habeas petition, including a determination that a petition is a "successive petition." The Court of Appeal's opinion in ordering the eighth petition dismissed handled the "factual innocence" claim by stating that the trial court's denial of the seventh petition adequately addressed this claim even without granting a hearing, in part because the claim of whether or not Riggins and Cummings gave false evidence went to their credibility, an issue which was raised at trial.
Both the attorney general and I have filed our informal responses, but the court has not done anything.
Donald W. Jordan,
San Bernardino, CA
(Editor's note: An expanded version of Jimmy's case may be found at http://members.aol.com/freejimmy/ You
may also write to his attorney at FreeJimmy@aol.com or
donjordan@earthlink.net)
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The Rape of the Souza Family
Excerpt from Victims of Memory, by Mark Pendergrast, pages 378-384 Second edition. Hinesburg, VT: Upper Access Books, 1996. 800-356-9315. Published by Permission of Mark Pendergrast.
Seven years after she ruled on the Amirault case, Judge Elizabeth Dolan also decided the fate of Ray and Shirley Souza, accused of molesting their two grandchildren. As this book goes to press, the Souzes have been found guilty and remain under house arrest in their Lowell, Massachusetts, home, awaiting the verdict of the appeals court. If they lose their case, they will eventually be separated and jailed for 9 to 15 years. Because they are in their early 60s, that possibly amounts to a life sentence.
The Souza case is especially interesting because it combines the two types of sexual abuse allegations -- repressed memories recovered by adults, and the repeated questioning of little children. Their story is tragic, but not unique. Throughout the United States, adult daughters have gone to therapy, been encouraged to find repressed incest memories, and then frantically questioned their own small children about what Grammy and Grampa might have done to them. Usually, these family mini- dramas go unpublicized, but because of the criminal trial, the Souzas have lost not only their entire family, but their liberty.
Lifelong residents of Lowell, a classic melting-pot New England mill town, Ray and Shirley Souza raised five children. Products of the Depression, the Souzas were determined to give their children many of the advantages and privileges their parents had lacked. Thus, Ray made sure his kids owned bicycles, because he never had one as a boy. Ray worked as an electrical lineman and Shirley as a part-time nurse. In a way, like many other parents in the 1950s, they reared their children permissively. At the same time, they appeared a bit overprotective and overinvolved. Their children came to rely on them perhaps too much.
Sharon, the oldest daughter, lived only two doors away and ate dinner with her parents frequently. Son Scott lived at home for quite a while, while Tommy also spent a great deal of time there as an adult, playing his drums in the basement. David kept more distance, because his wife Heather didn't get along very well with her mother-in-law. The youngest child, Shirley Ann, had a particularly difficult time breaking away from home when she went to college. After a near date rape and the subsequent trial, Shirley Ann sought counseling with a therapist, who apparently encouraged her to search for repressed incest memories and gave her (the book), The Courage to Heal. The Courage to Heal, mentioned in this excerpt, is a book once widely recommended by recovered memory therapists, which has since been largely discredited, although it continues to be in circulation among some therapists and their clients.
In a dream she had on Father's Day, 1990, Shirley Ann visualized a horrifying scene in which she was raped by her father, her oldest brother, and her mother. Despite the fact that certain elements in the dream appeared unrealistic -- Shirley Ann had no arms or legs, her mother had a penis, while her father inserted a crucifix into her vagina -- Shirley Ann immediately called her sister-in-law Heather to inform her that her parents were molesters. "Please, please," she said, "keep your children away from Mom and Dad."
As a result, Heather took her five-year-old, Cindy, to a child psychologist. At two, Josh seemed too young. The counselor failed to find any evidence of sex abuse, concluding that the mother was pressuring the child unduly. Undaunted, Heather sought another counselor, an "expert" in spotting abused children. On the very first visit, she proclaimed that Cindy suffered from post-traumatic stress disorder (PTSD) resulting from likely abuse. (Meanwhile, Heather herself, having read The Courage to Heal, sought therapy and recovered "memories" that her grandfather had sexually abused her.)
Eventually, all of the Souzas' children except Scott came to believe the charges, which escalated once the Massachusetts Department of Social Services (DSS) became involved. Although initially skeptical, Shirley Ann's older sister Sharon finally concluded early in 1991 that her four-year- old child Nancy had also been molested by their grandparents, after Sharon herself entered therapy and recovered what she considered previously repressed memories of incest and ritual abuse. In the meantime, as Heather and David's marriage deteriorated, Heather began to suspect that David, too, had abused their children. Under her intense interrogation, Cindy complied, telling her mother how David had molested her. Suffering from a nervous breakdown, he promptly checked himself into a psychiatric hospital. Heather has subsequently divorced David and is now remarried.
Repeatedly questioned by their mothers, therapists, social workers, and police, Cindy and Nancy eventually "disclosed" how their grandparents sexually abused them.
Because of snowballing allegations and various bureaucratic tangles, the case did not come to trial until January of 1993. Robert George, the Souzas' attorney, advised them to waive their right to a jury trial and rely solely on the decision of Judge Elizabeth Dolan, who had presided over the Fells Acres case.
[FOOTNOTE: Robert George advised waiving their right to a jury trial because he knew that juries are often swayed by emotional testimony by innocent little children. It is inexplicable why he would have wanted Judge Dolan to be the sole arbiter, however, since George had worked in the office of the Fells Acres defense team, and he knew that she automatically accepted children's testimony and the reality of repressed memories.] By the time Ray and Shirley appeared before Dolan in late January, 1993, Cindy and Nancy had not seen their grandparents for nearly two years.
There was no hard evidence against the Souzas other than the word of the children and symptoms reported by their parents. When the children testified, they sat in little chairs at a miniature table, with their backs to their grandparents. Judge Dolan descended from her bench to sit next to them. During her testimony, seven-year-old Cindy revealed that her grandparents routinely locked her and her first cousin Nancy in a basement cage.
Six-year-old Nancy then told Judge Dolan how her grandparents had stuck their entire hands and heads into her vagina, where they would wiggle them around. They also abused her, she said, with a huge multicolored machine, as big as a room, which was kept in the cellar. She did not remember any cage, just as Cindy did not mention any machine. [FOOTNOTE: During videotaped interview sessions, Nancy had also alleged that her grandparents forced her to drink a green potion. By the time she testified in court, however, she apparently didn't remember it.]
Throughout the trial, Judge Dolan indicated that she considered herself an expert on the subject of child abuse. "You know, I've heard all of this material time after time after time," she lamented, adding, "I'm not trying to be a smart mouth or anything . . . . I'm not saying I know everything but, you know, I have heard a lot in this field over the years. And I've done a moderate amount of reading in this general subject area." She was overtly hostile to Richard Gardner, the expert witness for the defense. Gardner reviewed videotapes of interviews with five-year-old Cindy during which the little girl commented to investigator Lea Savely, "Mommy told me that Papa [her term for her grandfather] tied me up." Instead of picking up on this hint of Cindy's confusion, Savely zeroed in on the allegation itself, ignoring the reference to parental pressure: "Did Papa do that?" Cindy muttered, "Uh huh," and Savely followed up with "And what part of your body?" Cindy mumbled: "I forget."
Gardner also objected to the use of anatomically correct dolls because they "sexualize the interview, they draw the child's fantasies into sexual realms. These dolls have very explicit sexual organs with pubic hair, large breasts, often prominent nipples . . . . Some of them have open mouths, open anuses, open vaginas, larger than average penises." He said that, in other contexts, the use of such dolls would be considered inappropriate: "If this doll were to be used in a school situation, parents would justifiably complain about the competence of a teacher. If a neighbor were to subject the child to such a doll, there would be complaints and indignation." [FOOTNOTE: Several studies have shown that the use of anatomically correct dolls can contaminate interviews. Using the dolls in one recent study, Maggie Bruck found that 75 percent of preschool girls who did not receive a genital examination during a pediatric checkup incorrectly indicated that the doctor had touched their privates. "A child may insert a finger into a doll's genitalia," she notes, "simply because of its novelty." She and other researchers suggest that children point to their own bodies to indicate what may have occurred. Social workers resist such an idea, assuming that it would somehow traumatize the children.]
Dr. Leslie Campis, staff psychologist and associate director of the Sexual Abuse Team at Boston's Children's Hospital, was the prosecution's expert witness to counter Gardner. "Disclosure is understood to be not a single event, but a process," she told the judge. "Initially when asked, children might say no, that nothing has happened to them, because they may not be ready to tell their experience." The second level, she said, is "tentative disclosure," followed by "active disclosure . . . sometimes to the point where they talk about it excessively." Campis asserted that it is normal for some children to recant, because "it's their way of trying to make the anxiety go away," even though the abuse really occurred. She said that it is very rare for children to falsely disclose.
"What might a therapist do in situations where a child is not disclosing?" the prosecutor asked. "One would want to ask more direct questions," Campis answered. "And sometimes, one has to recommend that the child be in an extended therapeutic relationship for them to be able to disclose." Yet Campis insisted that "no one who is doing good practice in this area approaches any case with an agenda."
Dr. Andrea Vandeven, a staff pediatrician at Children's Hospital, took the stand to discuss her examination of the children, during which she spread their labia and examined their hymens carefully, taking photographs of their private areas. She found no irregularities. She then turned them onto their stomachs, rear ends presented to her invading finger, covered by a surgical glove. Vandeven told Judge Dolan that Nancy's exam was "consistent with anal penetration," particularly because she felt that her anus "spontaneously dilated" more than most she had seen. Under cross-examination, the doctor admitted that there was no evidence of penetration. She noted, however, that "normal rectal exams are consistent with penetration, with or without dilation." In other words, any exam of a child would be considered "consistent with penetration."
Ray and Shirley Souza testified that they never abused their grandchildren. It was obvious that their attorneys had not prepared them for cross-examination, and they came across as extremely defensive. Various old friends and fellow workers briefly took the stand, recalling the loving, unfearful relationship the grandchildren seemed to have with their grandparents. These character witnesses were dismissed by Dolan as "window dressing."
The trial was also notable for those who did not testify. Shirley Ann Souza, whose dream sparked the entire affair, did not appear, nor did her therapist. Carmela Eyal, the therapist who finally concluded that Heather Souza was applying undue pressure on Cindy, did not testify. Jeanine Hemstead, the therapist responsible for getting both Cindy and Nancy to disclose, never took the stand. Aside from Dr. Gardner, the defense called no expert witnesses -- no scientists who had conducted studies on the suggestibility of children, no pediatricians who had studied normal children who present with the same "fissures" and "tears" that supposedly indicate abuse.
After a week and a half of testimony, Judge Dolan took another 14 days before she pronounced the Souzas guilty as charged. In her opinion, Dolan acknowledged that "children are quite capable of intentional falsehoods," but she obviously did not feel that they can easily incorporate false memories into their belief systems. She dismissed any inconsistencies or unbelievable stories because of the children's ages: "Age impacts upon perception, memory and verbal capacity." She was particularly impressed by the children's knowledge of wet vaginas. "As a general premise," she wrote, "most young children do not have knowledge of adult sexual activity to support a convincing, detailed lie about sexual abuse."
On the other hand, Dolan also interpreted unconvincing details as proof that abuse occurred. Commenting on Nancy's rather odd testimony about feet and elbows being stuck into her vagina, the judge said: "A child who has been coached, programmed or rehearsed in a fabrication is unlikely to include elbows and feet." In other words, if the story appeared plausible, it proved abuse. If the story was implausible, it also proved abuse. Incredibly, Dolan asserted, "There was no evidence of [Sharon's] malice or bias against her parents" -- ignoring her therapy-induced beliefs that her parents had ritually abused her as a child. (The judge had not allowed this evidence to be presented.)
At the end of the trial, Sharon and Heather read emotional statements calling for lengthy jail terms and quoting from letters purportedly written by Cindy and Nancy. Sharon asked Judge Dolan not to be influenced by her parents' age. "People may say they're so old, why send them to jail? I say, they've not always been 61 years old, and they've been doing this for years."
Before the sentencing, however, a public outcry erupted, largely due to the efforts of Richard Gardner, the outspoken Columbia University psychiatrist who had testified for the Souzas in the trial. After the media picked up the story, Dolan repeatedly delayed sentencing. Eventually, she handed down a judgment of 9 to 15 years, but rather than sending the couple to jail, she confined them to house arrest pending their appeal.
Unhappy with their first lawyer, the Souzas have secured Dan Williams, who successfully represented Kelly Michaels in her fight to clear her name. The Souzas have lost an initial round of appeals, but they remain hopeful that they will be freed eventually, especially in light of the decision to free Cheryl LaFave and Violet Amirault in the Fells Acres case.
While awaiting the outcome of their appeal, they continue to live in the home they purchased 25 years ago, wearing awkward electronic ankle monitors and sending their picture by fax telephone ten times a day to the Department of Corrections. Their children speak out frequently on the perils of sex abuse and are trying to sell their story to Hollywood.
"When those kiddos grow up," Ray Souza says of his grandchildren, "they're going to realize that these things never happened. They're bright children and they have a mind of their own, and when nobody's prompting them, when they grow up, they're going to remember, and we'll embrace."
[FOOTNOTE: I hope that Souza's prediction is correct, but
the McMartin case offers a less optimistic scenario. Now teenagers, many of the accusing
children still maintain that they were abused when they were in day care. It has become an
essential part of their belief systems.]
By Mark Pendergrast
UPDATE ON THE SOUZA CASE
Compiled And Written By
Ray and Shirley Souza, under house arrest since their 1993
child-abuse conviction won't have to go to prison. Judge Elizabeth Dolan, who presided
over the nonjury trial, revoked the couple's original prison sentence of nine to 15 years
in prison, ordering the Souzas placed on probation and confined to their house for nine
years. The ruling, retroactive to May 10, 1993, means they must serve another 3 1/2 years
under house arrest.
Although this ruling is a relief to Shirley, 66, and Ray Souza, 67, they had hoped the
judge would sentence them to the time they'd already served, or at least give them a
probationary sentence allowing them to leave their house. Although their fears of prison
are gone, Ray and Shirley still chafe at the injustice which destroyed their family and
fear for the long-lasting effects on their grandchildren. Unlike many of those featured
here, Ray and Shirley have many supporters, and several rallies have been held in their
behalf. On the other hand, like others featured in Justice: Denied, Ray and Shirley are
not free.
[back to top]
CONVICTION WITHOUT EVIDENCE
by
This case is the conviction and long, ongoing, incarceration of an innocent man, Jeffrey Modahl. Jeffrey Modahl was convicted of child abuse in Kern County in 1986 on the basis of scanty and contaminated evidence. Since his conviction the case against Jeffrey Modahl has collapsed entirely. Yet he remains in prison. Jeffrey Modahl was accused and convicted in the middle 1980's when Kern County authorities initiated an atmosphere of hysteria and a witch hunt of totally innocent persons while claiming they were uprooting sex rings of Satanist child abusers.
The case began on October 10, 1984. On this date two Kern County officers, Sheriff's Deputy Conny Ericsson and Velda Murillo interviewed two girls at the Plantation School about an alleged incident of sexual abuse that had been reported. This episode supposedly occurred on June 9, 1983, the last day of school for the 1982 to 1983 school year. The interview took place over 16 months after the alleged episode and lasted about any hour. The girls, Carla Modahl and Carol Ann Bittner, mentioned only two persons as possible molesters, Anthony and Leroy Cox. Jeffrey Modahl was neither accused of any molestation nor placed on the scene of the alleged incident.
At that time Jeffrey Modahl worked as a mechanic and heavy equipment operator for Richard Cox, who managed a heavy equipment and construction company out of a ten acre ranch on South Cottonwood in Bakersfield, California. Through 1983, the company ran landfill operations at three county dumps in Taft, Delano, and Lebec. Both the Delano and Taft dumps were open seven days a week. Both Richard Cox and Jeffrey Modahl frequently worked 12 to 14 hours a day seven days a week.
The "ranch" in Bakersfield consisted of one large main house, six two-bedroom duplexes, and a large shop on the property. Richard Cox and his wife Joanne lived in the main house. Leroy Cox and girl-friend Jody Dugrenier, several of Richard's wife's relatives, and some of Richard's employees lived at the "ranch". Anthony Cox ran the dump in Taft where he lived with his wife Teresa Cox.
At the time Jeffrey Modahl lived with Ruth Taylor in the Villa Capri Apartments on Panchea Road in Bakersfield. With Jeffrey and Ruth lived Carla Jo Modahl (age 9) and Teresa Modahl (age 11), who were adopted. Carla's mother, the sister of Ruth Taylor, had died in an automobile accident in 1979. Also living with them were Ruth Taylor's children by previous marriages, Carol Ann Bittner (age 12) and Richard Shang Taylor (age 7). Ruth Taylor did house work on a part time basis for Joanne Cox at the main house at the ranch.
Velda Murillo and Conny Ericsson took both girls to the Jamison Center, a county shelter for children who were presumed to be abused and in need of alternative homes. In this center were other children whom county authorities considered to be abused. Here Carla and Carol Ann were kept from access to friends and family. Instead county authorities such as Velda Murillo and Conny Ericsson often and repeatedly questioned the children about the alleged sexual abuse.
The original accusation made was that Anthony and Leroy Cox on the afternoon of June 9, 1983, tied up the girls with ropes to a bed in a bedroom at the main house of the Cox ranch in Bakersfield and sexually molested them. The accused molesters were said to have hammered a large nail to the wall in the back of the bed in order to fasten or hang the ropes binding the girls.
No physical evidence corroborated the accusations of Carla and Carol Ann. On the early morning of October 19, 1984, ten Sheriff's Deputies searched Richard Cox's home and the other buildings at the ranch for an hour and one half. No nail hole was found in the location where the victim alleged a large nail had been used to "hang" the ropes tying her up. No pictures of any sexual acts were found even though three cameras were seized.
However this dearth of evidence did not dissuade Velda Murillo and other county authorities from building a case involving a large "sex" ring. Velda Murillo seized the other children living with Jeffrey Modahl and Ruth Taylor, Teresa and Richard Shang, and placed them in the Jamison Center. All these children were questioned repeatedly and suggestively. After ten days in Jamison Center, Carla named other persons who were present at the alleged incident of sexual molestation on June 9, 1983. These other persons included Richard Cox, his wife Joanne Cox, Jeffrey Modahl, Ruth Taylor, Teresa Cox, and Jody Dugrenier. Carla then claimed that Jeffrey Modahl, Richard Cox, Joanne Cox, Ruth Taylor, and Teresa Cox also molested the two girls. Teresa Cox and Jody Dugrenier were said to have taken pictures of this molest.
However, no pictures of the alleged molest were ever found. And despite repeated questioning and many inducements by Velda Murillo and other county officials, Carol Ann Bittner refused to place Richard Cox, Joanne, Jeffrey Modahl, Ruth Taylor, Teresa Cox, and Jody Dugrenier at the scene of the molest. And Teresa and Richard Shang denied being molested at all.
It is worth describing in some detail the inducements Velda Murillo and other authority figures at Jamison Center used to get the children to testify against the accused. Specifically:
1) The children were frequently told they were held at Jamison Center and interrogated because their parents/relatives had abused them and other children. Authorities made these allegations to each child whether or not the child had had agreed their parents/relatives had abused them.
2) The children were asked leading questions, told what other children had said about being abused, detailed numerous sexual acts and told these same acts had taken place with them. The children were encouraged to tell about being touched, hung from hooks, and tied with ropes, while adults performed various sexual acts with them and told them not to tell anyone.
3) Sometimes, if the children refused to state their parents abused them, they were told without their testimony the parents could not get "help", and without this help the children would never see their parents again.
4) The children were threatened that if they did not provide "good" testimony (not "true" testimony) they would not be returned to their parents.
5) The children were told that if they refused to relate the alleged sexual molestation incidents occurred and the authorities found pictures of such incidents, the children would be in serious trouble for lying and withholding evidence.
6) The children were inappropriately praised for giving testimony against those accused by Kern County authorities. At one of the trials of the alleged participants of the so designated Cox Sex Ring, Carla stated: "Craig and Velda thinks I am a star up here."
7) The children were kept away from their families, pastor, relatives, family friends, and grandparents, who were not allowed to visit them. The parents were not told where their children were being kept.
This information comes from the affidavits of children questioned in Jamison Center in this case and others many years later when they reached adult status. The Kern County authorities did not keep any audio or visual recordings of the numerous children's interviews in this case.
Moreover, there is the deceitful and perverse medication of Carla Modahl prior to the trials. Carla was given medicine for what she was told was her gall bladder problem. Later she noticed the medicine made her feel stupid. In a telephone conversation with her grandmother and Jeffrey's mother, Ms. Blanche Modahl, she spelled out the name of the medicine she was taking. It was thorazin, a powerful psychiatric drug that effects the thought process. Yet no psychiatrist examined her and prescribed this drug. Clearly the county authorities improperly medicated Carla to influence her testimony. This action is definitely improper and most probably illegal.
The mismedication of Carla Modahl alone should be grounds to overturn the conviction of Jeffrey Modahl.
Originally Jeffrey Modahl was charged with counts of rape concerning Carla Modahl. Then Carla was given a medical examination. This exam demonstrated no sexual molestation had occurred. To prevent this embarrassing exam from being admitted as evidence in court, the District Attorney's office dropped all penetration charges against Jeffrey Modahl. The charges remaining were for oral sex and illicit touching. Thus the Kern County District Attorney's office had to change its story.
Kern County authorities prosecuted in four trials the alleged members of this "sex" ring. The first trial was of Teresa Lynne Cox (Anthony's wife), who was accused of the molestation of Carol Ann and Carla. Testifying against Teresa Cox were Carla and two jailhouse informants who claimed that Teresa told them she committed the molestation. Teresa Cox was convicted.
The second trial was of Anthony and Leroy Cox. Testifying against them were Carla and Carol Ann. They were convicted.
The third trial was of Richard Cox and Ruth Taylor. Carla testified she and Carol Ann were molested by Anthony Cox, Leroy Cox, Richard Cox, Jeffrey Modahl, Joanne Cox, and Ruth Taylor. The defense asked for a medical exam. However the prosecutor Craig Phillips argued stoutly that this medical exam "would be a wrongful invasion of the young victim's privacy". The judge ruled in favor of the prosecutor. Later Richard Cox and Ruth Taylor were convicted.
The fourth trial was of Jeffrey Modahl. The trial was held by a judge without a jury. The charges were numerous counts of molestation of his daughter Carla Modahl on June 9, 1983 at her grandma's bedroom in the main house at the ranch. Jeffrey Modahl was convicted on the testimony of one witness, Carla Modahl. Carla testified that Jeffrey Modahl molested her, Carol Ann Bittner, and Teresa Modahl. Carla's testimony was unsupported by any medical examination or physical evidence. No ropes, no nails, no nail hole in the wall, and no pictures were presented as evidence.
Moreover, Carla's testimony was contradicted by other witnesses. Carol Ann Bittner testified Jeffrey never molested her, nor had she ever seen Jeffrey molest Carla or Teresa as described by Carla. Teresa Modahl in her testimony openly accused Carla of lying and denied she had seen Jeffrey molest anyone.
Richard Shang Taylor, the seven year old son of Ruth Taylor, was not allowed to testify because he refused to state Jeffrey had done bad things to him.
Despite this clearly insufficient evidence, the Judge, Walter Condley convicted Jeffrey Modahl of ten counts, four of which were suspended. The judge then sentenced Jeffrey Modahl to eight years for each of the six counts, or to 48 years in prison. Judge Condley made his rulings in the witch hunting atmosphere prevalent in Kern County in the middle 1980's. During this period, county officials circulated the widely believed rumors that multi- generational satanic rings were operating in Kern County, and that children never lie about sexual abuse.
Between the years 1982 and 1985, dozens of people in Kern County were convicted of elaborate forms of large scale child molestation and pornography production, and sentenced to prison for decades, even centuries. These cases generally occurred in the small towns outside Bakersfield that are the law enforcement domain of the Kern County Sheriff. The same core of ambitious social workers, child abuse coordinators, deputy sheriffs, and district attorney investigated and prosecuted all these cases. This ambitious core of officials included Social Worker Velda Murillo and District Attorney Edward Jagels.
The enormous momentum of charges against anyone for violating defenseless children was so strong that the officials obtained convictions even where the evidence was very weak or originated by the investigators themselves. These successes emboldened the core of officials to try cases that seemed fantastic, even unbelievable. The Kern County officials' system of witness intimidation, along with the fear and titillation they spread through Kern County, allowed this core of officials to convict anybody of anything.
The officials overcame the handicap of having no tangible evidence by constructing cases from the suggested and coerced testimony of presumed child victims. Kern County Judges allowed this induced testimony to send bewildered people to prison for up to 400 years. Many of these convictions were overturned years later by Appellate Courts.
The hysteria over child molestation ran rampant in Kern County from 1982 to 1985. This Kern County hysteria was completely analogous to the atmosphere that led to the 1692 Witchcraft Trials in Salem, Massachusetts. Concern over the treatment of the alleged child victims, the methods used by law enforcement, the increasingly bizarre unsupported accusations being prompted from children, and the obvious absence of common sense prompted a Kern County Grand Jury to request an investigation by the California State Attorney General in 1985.
This investigation was undertaken. In 1986 Attorney General John K. Van de Kamp released the results under the title "Report on the Kern County Child Abuse Investigation". The report was actually polite to the Kern County officials. The report only dwelled on the errors of the investigative techniques used by authorities, and did not state that the children were coached. Thus the report did not touch on the guilt or innocence of people already convicted of multi offender ring child abuse. Instead the report concerned only persons who had not yet been tried. However the Kern County authorities applied the same perverse methods of investigation to all the child abuse cases in the 1982 to 1985 period.
Specifically the report found that Deputy Conny Ericsson did not have the required training in the investigation of child abuse and exploitation and had not completed the Commission on Peace Officer Standards and Training (P.O.S.T.) training course. The Social Worker Velda Murillo stepped out of an appropriate role and assumed a leading role in the investigation. The report asserts she appeared to have inappropriately told children what other alleged victims had said. Contrary to P.O.S.T. guidelines the interviews of the children were not tape recorded. Moreover, children were interviewed many times when P.O.S.T. guidelines stated that if at all possible the alleged child victim be interviewed only once. The report also criticized conditions in Jamison Center where alleged child molest victims met each other and participated in group therapy together. These conditions created cross germination and contamination of the later testimony of the alleged victims.
The report also criticizes the inability of Kern County authorities to locate corroborative physical evidence and the refusal to provide medical examinations of alleged victims. The praise of child victims to solicit testimony was deemed inappropriate.
In short, the report criticizes the deficiencies of the Kern County investigation in the alleged Cox sex ring detailed above. Common sense indicates major miscarriages of justice occurred.
The deficiencies in the interrogation of the alleged child victims by the Kern County authorities, many of which detailed in the Van de Kamp report, the deliberate mismedication of Carla Modahl, and the medical exam of Carla which was negative for sexual molestation demonstrate the case against Jeffrey Modahl was weak and insufficient. However there are other reasons to discount the case against Jeffrey.
First is the total lack of physical evidence. Carla testified she was tied with ropes on a bed in grandma's bedroom at the ranch which were attached to a large nail in the wall about three feet above their heads. However pictures from that bedroom wall were introduced in court which showed no nail or nail hole. Moreover several searches of the ranch were unable to discover any ropes as described by Carla. Carla also testified that Teresa Cox and Joanne Cox took pictures of their abuse. However several searches by Kern County Sheriff's Deputies and Officers of the main building and other buildings of the ranch were unable to find any such pictures.
Second, Carla testified that she and Carol Ann were molested on the last day of school of 1983. However Carla's aunt Terry Perry testified she picked Carla up at school on this last day of school. Carla's sister Teresa Modahl also testified that her aunt Terry Perry picked herself and Carla up at school.
Third, Carla also testified of vaginal and anal penetration by adult men and mother and daughter incest. However, normal functional people do not engage in vaginal or anal penetration with young children. Such sexual activity would be excruciatingly painful for the child. It is unlikely Carla would have waited over a year to relate this occurrence. Discernible tissue damage would have most likely resulted, that would have been readily found in any medical examination. Moreover mother child incest is very rare and practically never occurs unless the mother is psychotic. Psychological evaluations of the accused in most of the cases during the period 1982 to 1985 show normal functioning persons who are not psychotic or even seriously disturbed. From an actuarial point of view, the statistical probability of having a great many people in one county engaging in extremely rare behaviors is such as to make the accusations completely unbelievable.
Moreover, the sex rings described in the Velda Murillo induced testimony are very similar in their modes of child abuse. The allegations are always that the children are bound with ropes that are tied to nails. While bound the children are always alleged to suffer from similar types of penetration by multiple molesters. It appears more logical to discount the possibilities of so many similar sex rings arising in one county at one time period and focus on the fantasies of a leading Social Worker.
However, Kern County authorities did not change their attitude toward persons previously convicted. On September 28, 1987, an evidentiary hearing was held in the Kern County Superior Court in the case of Jeffrey Modahl. The hearing was conducted by the same Judge who handled the previous trial, Walter Condling. In this hearing Carla Modahl recanted her previous testimony. Carla identified a typed statement taken from a recording which she made to her social worker on January 14, 1987, which completely recanted her testimony pointing to the guilt of Jeffrey Modahl. She also identified a letter postmarked January 29, 1987, in which she asserted she lied in court and that Jeffrey did not touch her. Carla also acknowledged she testified in the preliminary hearing of Jody Cox on April 3, 1987, that Jeffrey was not among those who molested her. On cross examination Carla testified her original accusation of Jeffrey was made because of the trickery of Social Worker Velda Murillo.
This the case against Jeffrey Modahl collapsed from insufficient to zero - no witnesses, no physical evidence, no medical evidence.
Yet Walter Condley refused to set aside the conviction. He refused to consider the report of Attorney General John K. Van de Kamp. As Walter Condley stated it "Look, I have no faith in his [Van de Kamp] report because I know what he said about deep pockets initiative and how he misrepresented the facts and he is a misrepresenter, in my opinion, so I am not putting any weight on that report. I haven't read it. I won't read it. I won't touch that report."
So today Jeffrey Modahl is still in prison. Thus the demented Kern County witch hunt continues. This long and continuing unjust incarceration makes a total mockery of the claims by both the State Of California and the United States of providing free and equal justice. The creditability of justice in both California and the United States will continue to be lost until Jeffrey Modahl is freed.
Support:
Jeffrey Modahl
B.N. 1330851, E-111
17635 Industrial Farm Road
Bakersfield, California, 93308
Compiled And Written By
Jeffrey Vernon Eugene Modahl remains in prison largely because of his daughter's testimony, in spite of the fact that she has now recanted her molestation testimony.
It has been almost fifteen years since Carla Jo Modahl-Owen testified that her father and other relatives molested her. She now firmly denies her father molested her, and has told news reporters, "I don't see how anybody got convicted with what I said," Modahl-Owen said. "It's off-the- wall and in circles."
As the District Attorney's Office presses to keep Modahl in prison, Modahl's attorney filed a habeas corpus plea, and Carla Jo Modahl-Owen hopes her father can receive a new trial. A writ of habeas corpus requests a new trial based on new evidence unavailable at the time of trial. Superior Court Judge Kenneth C. Twisselman II found that a basis existed to conduct a second writ of habeas corpus hearing that seeks a new trial for Modahl, who was convicted of 10 counts of child molestation and sentenced in 1986 to 48 years in prison.
The new evidence is an expanded recantation by Carla Jo Modahl-Owen, the only witness who testified in several trials in the mid-1980s that her father, Modahl, and others molested her and two other girls. She now says that not only did her father not molest her, bur four other co-defendants in related cases also didn't molest her.
At Modahl's first habeas corpus writ hearing in 1987, filed a year after Modahl was convicted, Modahl-Owen recanted her testimony about her father molesting her, but retired Superior Court Judge Walter H. Condley ruled that her trial testimony was believable, not her recantation, and dismissed the writ.
Deputy District Attorney Craig Phillips, who prosecuted Modahl, argued that the expanded recantation is not new evidence, and dismissed Modahl-Owens' claims as being the same ones she made years ago, and said they are rehashing the same stuff.
Attorney Jeanne W. Peden, who filed on behalf of Jeffrey Eugene Modahl, said that the other basis for the second writ is a 1984 tape-recorded interview with another alleged victim that was not presented in the first trial. Peden said the "leading and suggestive nature" of the interview is "explosive."
Phillips countered by saying that the tape doesn't add much because that alleged victim consistently denied that Modahl ever molested her.
Modahl-Owen, who doesn't remember much of the trial, said she is now seeing a psychiatrist to help fight bouts of depression she believes are caused by her being forced to lie on the witness stand.
Carla Jo's life was never the same after her father was prosecuted. She said she bounced from one foster home to another until she was 16 and moved to Stockton to live with a relative. Modahl-Owen said she ran away from each home, got involved in drugs and alcohol to numb the pain and attempted suicide six times.
Modahl-Owen alleges that two Kern County sheriff's detectives tricked and forced her into testifying that her father, grandfather, grandmother, aunt and others molested her, triggering an investigation into Modahl and the other family members in 1984. Modahl-Owen said she was molested by her two cousins, but from there the investigation mushroomed to wrongly include other family members.
Modahl-Owen told a reporter, "They took me to lunch every day, they let me play with the computer and promised to take me to Magic Mountain when I was done testifying." She said, "They called me their star witness."
(Editor's Note: Although DA Phillips says that the 1984 tape-recorded interview with another alleged victim doesn't add much because that alleged victim consistently denied that Modahl ever molested her, he does not address the charge, which is that the "leading and suggestive nature" of the interview is "explosive." The point, presumably, is that the interviews themselves were flawed. --Staff, Justice Denied)
Support:
Jeffrey Modahl B.N. 1330851, E-111
17635 Industrial Farm Road
Bakersfield, California
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Edited By
[Editor's note: I met George White when we chanced to be at a Bruderhof Community when the Abolition Movin' bus rolled in full of death penalty abolitionists who'd just come from a demonstration in Washington, D.C. I sat spellbound when George told his story in quiet, unemotional tones. A story so full of injustice and the horror of a wrongful accusation, then a conviction, that I wept to hear it. The flavor of George's story is not here as it was for me on that day more than a year ago when I heard it, but the incredible facts are here. Read them and realize that disaster could strike any of us at any time, and on top of the disaster which victimized, there could be further injustice... by the very system which is supposed to protect us from injustice. -- July 21, 1998. Clara A. Thomas Boggs]
George W. White is Chairman of The Board of Journey Of Hope...From Violence To Healing, Inc.
On February 27, 1985 in Enterprise, Alabama, George was living his little piece of the American Dream. Husband of Charlene and father of Tom and Christie, he was a successful, business-degreed executive, Sunday school teacher, little league coach and PTA president -- a yuppie in southeast Alabama. That evening everything changed.
When George, vice-president of Townsend Building Supply, Inc., and his wife, Char, stopped at his store after business hours, they thought they were doing a favor for a man who urgently needed an item for an emergency home repair. Instead, they experienced first-hand the insanity and horror of murder. A masked gunman entered the building and shot the pair repeatedly during an armed robbery. George suffered gunshot wounds to his left arm, thigh and abdomen during a struggle with the gunman. Following emergency surgery, George survived. His wife was not so lucky. Char was pronounced dead at the hospital after sustaining two gunshot wounds to the head. Tom and Christie were only twelve and five at the time of their mother's death. The nightmare had only just begun.
Sixteen months later George was charged with the murder of his wife. The State sought the death penalty and, following a trial that was later characterized as a mockery and a sham, George was convicted and sentenced to life in prison. Incarcerated for a total of two years, one hundred and three days, the conviction was overturned in 1989. George remained in legal limbo for nearly three more years. On April 10, 1992, the prosecution asked that the charge be forevermore dismissed when the proof of George's innocence finally surfaced. The trial court so ruled. The ordeal had lasted for more than seven years.
As a survivor of a violent crime, husband of a murder victim, suspect, accused, indigent defendant, convicted murderer, and innocent man exonerated, George understands fully how easy it would be to advocate revenge. However, as a family the Whites reject the death penalty as a solution to heal the wounds of their loss. George says, "I believe that society's laws must offer relief for a victim's anger and loss, and we must be afforded protection from those who would harm us; however, one cannot stop the shedding of blood by causing more blood to be shed. No amount of killing would restore Char to my family or take away the pain of losing her. What began with a horrible act of violence should not be memorialized BY an act of vengeance."
George is a co-founder of Citizens United for Alternatives to the Death Penalty and served on the board of Murder Victims Families for Reconciliation from 1994 to 1998. He is also a founding board member of the JOURNEY OF HOPE... FROM VIOLENCE TO HEALING, Inc. He has worked as a Mitigation Specialist, Investigator, and Qualified Paralegal, and is a full-time speaker and lecturer. Now living in Arkansas City, Kansas, George is active in the First Baptist Church.
George can be reached via e-mail at: geobecky@hit.net or geobecky@horizon.hit.net.
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Darlie Lynn Routier
Kerrville, Kerr County, Texas
Written By
Mother of Darlie Lynn Routier
(Edited by the Staff at Justice Denied)
Darlie Lynn Routier needs your help.
On June 6, 1996 my two grandsons were murdered and my daughter was almost murdered. Due to inept police work and violating the crime scene, the parents were targeted as the killers while Darlie Lynn Routier lay in her intensive care hospital room. Within 11 days, on the evening news, I watched my daughter be arrested and charged with the murder of her two out of three sons.
Darlie was arrested before any scientific or forensic evidence was tested. They claimed that a blonde hair in the window screen (point of entry of intruder) was my daughter's. Of course, after DNA testing, it proved to belong to a woman police officer.
A sock which had both of the boys' blood on it was found within an hour of the crime, but this was disregarded, as was most of the other evidence, until the DNA test results came back to confirm it in October. By then, the DA and his group of overzealous prosecutors were after a win and could not be deterred by considering that there was a possible innocent victim -- the mother who was also almost murdered.
Without a second thought, prosecutors assassinated Darlie's character in a courtroom in the very small, conservative town of Kerrville, Texas. The woman they crucified was not my daughter, but someone the prosecutors had created in their evil, self promoting minds.
Although 4 of the 12 jurors went into the jury room and voted not guilty, Darlie Lynn Routier was found guilty within 9 hours. Four hours later she was sentenced to die.
Since Darlie's trial, we found out that the lead investigator's son (see testimony transcript) is now in prison for violent crimes. This investigator's son had taken others to see the Routier's fountain since he lived so close (2 blocks away), and he has admitted that he was driving a small black car the night of the murders and that he immediately went out and cut his hair so he would not look in any way like the described intruder. His father, the lead investigator, swayed the investigation away from the black car and his son, in spite of having collected evidence that didn't fit this crime. This investigator pushed on to incriminate my daughter even further.
Since the trial, we also found out that the surgeon who talked with me after saving my daughter was swayed by the prosecution because he feared he was going to lose his medical license from failing his medical boards twice. Another highly questionable thing is that the forensic pathologist who examined my sweet babies' bodies was not even licensed at the time of the examination because she could not pass the required boards.
I could spend hours giving you details that would shock your intelligence and show the mockery of what we are dealing with in Dallas, Texas. Instead, I am asking for your help in supporting my innocent Darlie Lynn Routier before the state of Texas murders her.
We need to raise at least $20,000 to pay for one of the best writ attorneys and a detailed investigation. If we could get 1000 supporters to send just $20 each to the appeal fund, we could reach that goal. If financial support is not available, please review the information that Berthold and Christina has given and ask your readers and public to write to the President of the United States and the Governor of Texas to demand a new investigation of this case.
From the bottom of my heart I thank you for listening to my pleas for my innocent daughter who sits on death row in Gatesville Texas. Her remaining son, Drake, deserves to be raised by his mother.
Sincerely,
Darlie Kee, Mother of Darlie Lynn Routier
1409 Armstrong Drive
Plano, TX 75074
972-583-0961
972-578-8380
Please visit Darlie's website at www.fordarlieroutier.org
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Saskatoon, Saskatchewan, Canada
Case Account Compiled And Written By
Supporter of David Milgaard
In July 1997, David Milgaard, one of Canada's longest serving prisoners, was formally exonerated, after 28 years, of all criminal charges against him for the rape and murder of Gail Miller in Saskatoon in 1969. David's story is tragic: he was incarcerated at the young age of 16 and spent 23 long years in prison for this crime that he did not commit. He always maintained his innocence.
Thanks to the fierce and courageous determination of his mother, Joyce, who worked tirelessly for 28 years to clear his name, David's case was heard before the Supreme Court of Canada in 1992. The court then ruled that keeping him in prison might constitute a miscarriage of justice because crucial evidence was withheld from his original jury.
Dave was released in 1992 but the province of Saskatchewan refused to grant him a retrial. This left him in a state of legal limbo. David, Joyce, his lawyers and supporters like myself continued to work for five more years to obtain approval for David to undergo DNA tests. He was officially cleared of all of the charges based on the DNA results in the summer of 1997. Although this victory was long overdue, Milgaard supporters were ecstatic.
Shortly after the exoneration, Joyce Milgaard spoke about miscarriages of justice on CFRA, an Ottawa radio show along with local lawyer, Lawrence Greenspon. The moderator of the show said a number of interesting things.
Firstly, he said that the big cases of wrongful conviction
in Canada - that of Milgaard, Marshall and Morin all had certain commonalties:
- There was withholding of exculpatory evidence,
- There was an overzealous Crown,
- The police had tunnel vision.
To this, Joyce added that it is very difficult to have a fair appeal when the people in charge of appeals are engrossed in the same system that made the error in the first place. After Donald Marshall spent 11 years in prison for a murder that he did not commit, the Marshall Inquiry recommended that an independent board be established to hear appeals but this recommendation has never been implemented.
Lawrence Greenspon stated that the Milgaard case has huge implications internationally for freeing people based on DNA. He said that 36 cases in the United States have been overturned by DNA evidence, including that of Rolando Cruz who spent 11 years on death row. Both Greenspon and Milgaard were quick to point out that NOT everyone in prison has DNA evidence so it is not useful in all cases.
Canadians concerned with wrongful convictions may be interested to know that Joyce Milgaard was one of the founding members of AIDWYC, the Toronto-based Association in Defense of the Wrongly Convicted. Joyce sits on the board of directors. AIDWYC's Executive Director is Rubin "Hurricane" Carter, a native of New Jersey who moved to Toronto after he spent 19 years in prison for a triple homicide that he did not commit. Subject of a Bob Dylan song and contender for the number one middleweight crown before his wrongful conviction, Carter was freed by a federal court judge in 1985 but the charges against him were not formally dismissed until three years later.
Lawrence Greenspon has assembled a group of lawyers to start an AIDWYC chapter in Ottawa and last fall, a Toronto law school began "Project Innocence", modeled on an American program which has already used genetic testing to liberate nine prisoners. Working with AIDWYC, students at Osgoode Hall law school at York University have been investigating the cases of people who have exhausted their normal court appeals but insist they were wrongly convicted. Most of the cases handled by Project Innocence will involve DNA but it will also look at other causes of wrongful convictions such as false confessions, incorrect eyewitness identification, improper Crown disclosure of evidence, and the role of jailhouse informants.
You can write to:
AIDWYC
438 University Avenue, 19th floor
Toronto, Ontario M5H 2K8
or read more about it on an excellent web site created by
Martin Allen at www.firstlinelaw.com
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by
Editor, Clara A. T. Boggs
RUSH TO VILIFICATION
This case concerns the rush to vilify and convict an innocent man of child molestation in Allentown, Pennsylvania. This is the story of Felito Mendoza.
The case began in February 25, 1992, when ten year old J.V. was called to the Washington Elementary School office because he had a black eye and swollen nose. Ms. Nancy Snyder, the school nurse, looked at J.V.’s injuries and attempted to get a history of them.
After speaking with J.V., Ms. Snyder called A.G., his half brother, to the office. When asked about the injuries, A.G. narrated that J.V. was struck on the face and back of the legs with a stick.
Felito Mendoza was then living with Mercedes Hernandez and her four children, A.G., J.V., and L.H., her sons, and her daughter, J.H (age five). A.G. and J.H. were brother and sister. The other boys were their half brothers. L.H., the youngest, and the only child not in elementary school, was Felito Mendoza's son.
As Felito Mendoza describes events on February 22, 1992, at 7 PM the night before, he left home to work all night at K-Mart and at a Best Store, in King Of Prussia, in Valley Forge, Pennsylvania. As usual, Felito worked all night shining and buffing floors and generally cleaning both stores. Back home after work, around 11 to 11:30 AM, Felito took a shower, ate, and went to sleep, as had been his routine since 1988. Later that day, Mercedes awakened Felito to tell him her nephew had disappeared when she sent him to a nearby pharmacy with J.V., her son. J.V. said he lost the nephew in this store. Although very tired, Felito got up and into his car and went to look for Mercedes' nephew. After a while, he returned to their home, at 915 Tilghman Street, to see if the nephew had returned. The nephew was not there, but half an hour later the boy came home. According to Felito, Mercedes was really upset with her son, and punished J.V. by hitting him until Felito stopped it.
J.V. did have bruises on his eyes, back, and legs from Mercedes' blows, but these were relatively minor bruises which would have completely healed in a week. Felito told Mercedes she should not have hit the boy because the officials at the Elementary School would ask all kinds of questions. Mercedes then came up with the idea that they would say J.V. was injured playing street hockey. Felito agreed to the story to protect Mercedes. The parents then allowed J.V. to stay home from school on Monday, February 24.
On February 25, 1992, J.V. was sent to school. Around 12:30 PM a social worker from the school appeared at the home of Felito and Mercedes. She told Felito and Mercedes they might have to take J.V. to the hospital. Felito and Mercedes then went to the school. There, Wilma Soto, a school teacher, told Felito and Mercedes that J.V. had told her what happened to him and that he should not be playing street hockey.
On February 25, around 2:30 PM, Denise Scharle, a case worker from the Offices of Children and Youth Services (OCYS) of Lehigh County arrived at the school and called Felito and Mercedes into an office. Denise Scharle had apparently already concluded that Felito had hit J.V. Denise Scharle told Mercedes that she must remove Felito from their home on Tilghman Street. Felito had been responsible for paying the bills for this home, such as rent, food, and clothing. According to Felito, Mercedes became hysterical and angry, as did Felito. Both refused. Felito asked Denise how in the world she could say that. Denise responded that she did not have to say anything more.
Around 3:00 PM two policemen entered the school and arrested Felito on charges of assault.
It is useful to ask about the possible reasons Denise Scharle had to immediately accuse Felito Mendoza. Felito and Mercedes had prior contact with Denise. She once went to their house because Mercedes had hit J.V. to discipline him. That visit was made when Felito was at work and Mercedes had told Denise to come back when Felito got home. Denise later came back with a translator. At this next meeting, Denise accused Mercedes of hitting J.V. demanding that Mercedes enter therapy. Felito countered by stating that Mercedes would not be going to therapy and protested what he felt was an intrusion to take control of their family. On another occasion, Felito had an argument with Denise after he disciplined J.H. for breaking a window pane. Felito admits he disciplined J.H., but claims that Denise made him out to be a monster for it, which he was not, but only using reasonable discipline. At that visit he asked Denise to leave. After experiencing these prior altercations, it is not so surprising that Denise Scharle might be resentful enough to jump at the chance to make accusations against Felito. However, to accuse someone without a proper investigation demonstrates a lack of professionalism and a surfeit of bias on the part of a law enforcement official.
As a result of the assault charges, OCYS officials removed J.V., A.G., J.H., and L.H. from the home. After routine physical examinations, the children were placed in foster homes. Soon the youngest sibling, L.H., was returned to his mother's care. J.V. and A.G. were placed together in a foster home in Slatington, Lehigh County. These boys also entered into prosecution-sponsored therapy sessions. J.H. was placed in the foster home of Anna Boyer, who lived in Whitehall, Lehigh County.
Later, Felito Mendoza's assigned public defender, William Wismer, told him that the District Attorney offered him a plea bargain of one to three years. Felito discussed it with Mercedes, and she advised him not to take the plea because Felito was innocent anyway. Also, a friend had told her that Felito could be charged later with more offenses if he accepted. Felito then refused the plea bargain.
On April 8, 1992, Anna Boyer reported to OCYS that while bathing her, J.H. said that Felito had touched her private parts with his private parts. Actually, J.H. had used a Spanish word, "fresqueria," which Ms. Boyer took to mean sexual abuse. Ms. Boyer did not speak Spanish, so she called Nora Ramos, a church friend, and asked J.H. to repeat the words to Ms. Ramos for translation. Ms. Ramos questioned J.H., then indicated that sexual abuse had occurred, stating that "fresqueria" connotes sexual touching and intercourse.
J.H. was sent to the Lehigh Valley Hospital for a physical examination. Dr. Sarah Fernster examined her, took an oral history and ordered various tests and cultures to be performed. The examination results revealed that J.H. was suffering from vaginal gonorrhea as well as a notched hymen. Dr. Fernster opined that the notching of the hymen was due to trauma. Although at the time J.H. denied she was sexually abused, Dr. Fernster reported that, given the information available to her, it was her opinion that sexual contact had occurred.
At this time, the rush to vilification completely took hold. The police had already charged Felito Mendoza with child assault. It was a simple matter for police investigators to believe that Felito was also a sexual predator who had sexually abused Mercedes' daughter and older sons.
Police detective Richard Mongilutz, of the Allentown Police Department Sex Crimes Unit, and Denise Scharle, from OCYS, conducted the investigations. Mercedes' sons, J.V. and A.G., were repeatedly interviewed. The police investigators put considerable pressure on both children to relate episodes of sexual abuse concerning the man the police wanted to convict. After several interviews J.V. and A.G. finally obliged. They stated that they had been forced to engage in oral and anal intercourse with Felito on multiple occasions, sometimes in the presence of each other. They also claimed they saw Felito performing intercourse on J.H. They stated that their mother, Mercedes Hernandez, was sometimes at home when these incidents occurred. Supposedly, Felito sometimes punched J.V. in the back. A.G. indicated that Vaseline was used and described alleged episodes of sexual molestation in detail.
After several police interrogations, both children asserted that the abuse occurred on numerous occasions over a period of roughly six months starting in September, 1991 or prior to February, 1992.
There are indications that, as well as suggestive interviews, the children were given other inducements to provide the testimony the prosecution desired. Specifically, A.G. was given pocket money, and probably J.V. as well, when answering questions in a manner favoring the prosecution.
The police also applied considerable pressure to Mercedes. Mercedes was not allowed to speak at a preliminary hearing. Instead, Denise Scharle was able to testify that J.V. and A.G. related that Mercedes would soon go to Puerto Rico and that she knew abuse was occurring and would say nothing.
At the same hearing, Detective Mongilutz stated that Mercedes had sex with Felito in front of the children and that she told A.G. to say nothing about the sexual incidents. The prosecutors also brought in a woman who was an employee of the Lehigh County OCYS. She testified that she heard Mercedes tell J.V. not to say anything of what happened in the Lehigh County Court building hallway. Mercedes has consistently denied she said anything like that in the court building hallway. Also, Anna Boyer testified that J.H. told her that Mercedes had told her daughter not to say anything about what occurred.
J.V. and A.G. were taken to the Lehigh Valley Hospital and examined by Dr. John Kenvin.
Dr. Kenvin found no physical evidence of sexual molestation.
Due in part to orders from the prosecutor, Felito and Mercedes were both tested for wide spread range of infection and diseases. The results were negative for the presence of any disease or contamination.
Neither Felito nor Mercedes tested positive for the presence of gonorrhea.
It should be remembered that Mercedes' daughter, J.H., did test positive for gonorrhea a few months after being taken from the parental home.
Yet authorities arrested Felito on charges of sexual assault on all three children.
The trial of Felito Mendoza on charges of assault and sexual abuse began on April 26, 1993. The Judge was Lawrence J. Brenner. The prosecuting attorney was Kelly Waldron. At the trial, both J.V. and A.G. testified against Felito. J.V. described various acts of sodomy. He also stated that he saw Felito forcing A.G. and his sister J.H. to engage in anal intercourse. A.G. testified that he was hurt from anal intercourse with Felito. He also alleged he saw Felito engage in vaginal intercourse with his sister J.H.
Anna Boyer, J.H.'s foster mother, testified about the statement J.H. made concerning sexual abuse. Dr. Fernster testified about her examination of J.H. and provided her opinion that sexual abuse occurred.
As a result of the testimony of these witnesses and some others, Felito Mendoza was convicted on both the assault and sexual molestation charges and sentenced to 65 years.
There are a number of very disturbing elements in this trial. First was the entrance of the hearsay testimony of J.H. Both the prosecution and defense agreed that J.H. was incompetent to testify. Like most other five-year-olds, J.H. readily fantasized. She did not possess the ability to remember and accurately communicate what she remembered. She often was unable to distinguish fact from imagination: at one time she stated that Felito caused a bogey man to enter her room.
As a Pennsylvania Supreme Court pointed out: "Experience has informed us that children are particularly susceptible to the world of make believe and suggestions." (from Rosche Vs McCoy 397 Pa 615, 156 A. 2d 307 (1959)).
Another troubling fact is that J.H. used a Spanish word that was taken to indicate sexual abuse. The only person with whom J.H. conversed in Spanish was her older brother, A.G. After the children were placed in foster homes and her brothers had entered into prosecution-sponsored therapy, she spoke with her brothers several times. Thus, her account of sexual abuse might well not have been spontaneous, but instead a repetition of something one of her brothers was induced to say in therapy.
J.H. denied being sexually abused when questioned by Dr. Fernster in Lehigh Valley Hospital. Dr. Fernster formed her opinion that sexual abuse had occurred in the home solely on the evidence of J.H.'s positive medical test for gonorrhea. That Mercedes and Felito had tested negative was not taken into account.
Moreover, there was the statement J.V. made to a youth caseworker. The caseworker reported that, J.V. "thinks his brother and sister are saying things are happening so they don't go home."
Taking all these factors together, the testimony of J.H. should have been excluded. The statements by J.H. are inconsistent, fantastical, and most probably contaminated by other witnesses.
The hospital's gonorrhea test of J.H. was a positive piece of evidence. However, this evidence was not against Felito as will be seen below.
A most disturbing facet of this trial was linking the assault charge together with the sexual abuse charges. Along with sexual abuse, Felito was charged with aggravated assault. Specifically, the prosecution witnesses, A.G. and J.V. narrated at the trial that J.V. was sent to a pharmacy with a younger cousin. The cousin became lost in the store and, not seeing his cousin around, J.V. went home without him. Since the cousin was not at home, J.V., and his mother, Mercedes, went to find him. When they returned, the cousin was at home. It was then alleged that Felito lost his temper and struck J.V. in the face, causing his nose to bleed and his eye to shut, and then struck him in the back of legs with a stick.
Several points should be kept in mind about this assault that the prosecution charged to Felito Mendoza. First, however deplorable and disquieting the incident, J.V. suffered no serious bodily injury. Secondly, the assault stemmed from a lost temper and an effort to discipline J.V. The assault was not an attempt to prevent the children from reporting sexual abuse. Obviously, this single incident did not keep the children quiet about any presumed sexual abuse occurring between September, 1991 and February, 1992.
Yet the prosecution, by introducing testimony about this alleged assault, was able to get the jury to postulate that other assaults occurred. These tactics were clearly prejudicial against Felito.
In order to introduce evidence about other crimes into a trial, the prosecution must demonstrate that these other crimes prove motive, intent, absence of a mistake or accident, or a plan or design by the defendant. Obviously, the aggravated assault charge proved none of these points. The alleged assault charge was an episode where a loss of temper and desire to discipline the child got out of hand.
At the trial, no witness testified that Felito told the children not to tell the truth. It was Mercedes who was alleged to have made that request. Nor was any evidence introduced indicating that Felito asked Mercedes to help prevent the reporting of sexual abuse.
Moreover the charge of aggravated assault was clearly untrue. The alleged "assault" was to punish a minor for misbehavior, not to inflict serious bodily injury.
A third very disturbing feature of this prosecution and trial was the deliberate influencing and intimidation of witnesses by the prosecution. After J.V. and A.G. were placed in foster homes, they were also placed in prosecution-sponsored therapy where they were encouraged to relate episodes of sexual abuse. They were also often questioned by the prosecutors and by the social worker, Denise Scharle, about sexual abuse. Leading questions were often used. In this way, the prosecutors were able to turn the two sons, articularly A.G., against Felito.
There are some very disturbing indications that the two boys were bribed to some degree for their testimony. Prosecutors rewarded the children for providing the testimony they wanted -- namely that Felito sexually abused them. Mercedes has related that A.G., in particular, often got spending money from some of the prosecution interrogators. According to Mercedes, who saw the children on visits, the prosecutors would also bring A.G. gifts and take him to Burger King.
One more highly questionable factor in this case is that pressure was applied to people who at first volunteered to be character witnesses for Felito. Wilma Soto, a teacher at Washington Elementary School, where J.V. and A.G. went to school, at first volunteered, but later refused to testify as a character witness for Felito because she believed she could lose her job. The boss of the cleaning and maintenance company where Felito worked, at first offered, but then suspiciously declined to serve as a character witness on Felito's behalf.
Then there is Mercedes. She has declared in many letters that Felito is innocent of any sexual abuse. She was not allowed to testify at the preliminary hearing. Later, her court-appointed lawyer told her she would either have to plea bargain and not testify in Felito's behalf or the state would take away all her children, including the infant. The prosecutors gave Mercedes three months to decide. Mercedes did not have the financial resources to hire a decent lawyer. To keep her children and her liberty, therefore, she complied with the deal proposed by her appointed lawyer.
Before going along with the prosecution-sponsored deal, Mercedes spoke to a lawyer about the situation. The lawyer, Mr. Santana, told Mercedes that if she could bring ten people with the same problem, he could file a class action suit against both the county and the District Attorney's office.
There is also the matter of the ineffective defense of Felito at trial. Felito's lawyer, William Wismer, did not present witnesses or evidence that would have been favorable to Felito. The prosecution's pressure on, and intimidation of, witnesses who would have testified in Felito's favor went unchallenged. Evidence concerning J.H.'s gonorrhea infection was also not presented.
Felito's first hearing was suspended because William Wismer was on vacation. Wismer didn't attend Felito's preliminary hearing because he was at another trial. Then, at a November 24, 1994, hearing before Judge Brenner, Wismer joked that the District Attorney was paying him thousands of dollars to frame Felito. Given his inaction on the prosecution's influencing of witnesses, his joke becomes a serious matter. Did the DA try to influence Wismer as well? If there is the remotest truth to Wismer's joke, major prosecutorial misconduct occurred. The prosecution is not allowed to tamper with the defense under any circumstances.
Counting all these factors -- the introduction of the testimony of the child, J.H., the deliberate use of the assault charge to inflame the jury against Felito, the prosecution tampering with the witnesses, and the ineffective defense of Felito by William Wismer, the trial of Felito Mendoza can be seen for the utter travesty of justice it was. Under these circumstances, there was no way Felito Mendoza could have his case fairly heard or receive justice.
But now comes the question, what about the gonorrhea test? This evidence was the sole positive physical evidence that sexual abuse had occurred.
To answer this question, we must note that in 1991, Mercedes' brothers, G.H. (Guillito) and R.H. (Chito) lived in the same house with Mercedes, Felito, and the children. According to witnesses, Guillito sexually assaulted Mercedes when she was a little girl. He had also physically and sexually assaulted Mercedes when she was a woman. Mercedes later placed Guillito in a psychiatric hospital in Puerto Rico because of his physical and sexual abuse against her and her sisters. Felito Mendoza only became aware of these facts after he had been with Mercedes for some time, and when Guillito came to their home, Felito confronted him with what he knew and warned him that he would have to treat Mercedes with respect from then on.
According to potential witness, Felix Morales, Mercedes' uncle, Manuel Apontes Martinez, related these details to others. Martinez also claimed that G.H. left Puerto Rico with a venereal disease virus.
None of this evidence was examined by the Lehigh County prosecutors. These prosecutors used an alleged assault to make a rush to vilify and convict an innocent man of the very serious crime of sexual abuse and let a guilty man escape indictment. To restore the credibility of the American justice system this glaring injustice must be rectified. Felito Mendoza must be freed.
Support:
Felito Mendoza
BV3355, Box 244
Graterford, Pennsylvania 19426-0244
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Fortunately for Rubin Carter, his luck changed when a black teenager became interested in his story. Lesra Martin was 15 years old when he was adopted by a group of white Canadian social activists. He was malnourished and functionally illiterate from a life of poverty in a Brooklyn ghetto. ...now pursuing a career as a lawyer and a member of the AIDWYC Board of Directors.
Rubin "Hurricane" Carter:
A Prizefighter Wins Freedom from Injustice
by Sigrid Macdonald
"To see him obviously framed
Couldn't help but make me feel ashamed
To live in a land
Where justice is a game."
Bob Dylan, "Hurricane"
Rubin "Hurricane" Carter was a contender for the middleweight boxing title of
the world before he was wrongly convicted of a triple homicide in Paterson, New Jersey in
1967. Narrowly escaping the death penalty, Afro-American Carter was sentenced to life in
prison by an all-white judge and jury.
In Rahway Prison, Carter would not obey prison rules nor would he eat prison food because he maintained he was an innocent man and did not belong there. He would not do prison work, preferring instead to spend his time reading in his 5 foot wide by 7 foot long cell, built in 1850. It was there that Carter devoted his energy to writing the autobiography that would eventually lead to his liberation.
Carter published "The Sixteenth Round, From No 1 Contender to #45472" from his jail cell in 1974. The book was discovered by Bob Dylan, who made Carter a folk hero with the release of the song "Hurricane" the following year. Referring to Carter's trial as a "pig-circus," Dylan's song led to a public outcry that was largely responsible for his retrial in 1976. Carter was also supported by Coretta Scott King, Muhammad Ali, Joan Baez and Bobby Seale of the Black Panther Party, in addition to a number of journalists and lawyers. It is hard to believe, but Carter and his acquaintance, John Artis, were wrongly convicted again in 1976.
Both of Carter's trials were tainted by racism. In the first trial, the jury was told that two white men and a white woman were shot dead at the Lafayette Bar and Grill during a robbery. The prosecution argued that Carter and Artis committed the murders to avenge the death of a black man who had been killed by a white man that same night in Paterson. At the time of the shooting in 1966, racial unrest was erupting all over North America and riots had broken out in Newark and Jersey City, N.J. It was within this social context that the prosecution argued that, in essence, Artis and Carter had killed three white people simply because they were black.
All the evidence seemed to indicate otherwise. One of the shooting victims told police that Carter and Artis had not been the shooters; the victim and other eyewitnesses all claimed that the shooters were about 6 feet tall, thin, and light-skinned, whereas Carter was 5-feet 8 inches tall and stocky with very dark skin. Carter was also a celebrity prize fighter, well known for his bald head. As a local hero, it is likely that he would have been recognized in the Paterson bar. Lastly, Carter and Artis were both given lie detector tests the night of the incident and passed.
However, two white men did implicate Carter and Artis. Both of these men, Alfred Bello and Arthur Bradley had extensive criminal records. Both recanted their testimonies before Carter's second trial; they stated that the police had pressured them into giving false testimony by offering reward money of up to $10,000. However, Bradley left town before the retrial and Bello retracted his recantation and perjured himself on the stand yet again.
Fortunately for Rubin Carter, his luck changed when a black teenager became interested in his story. Lesra Martin was 15 years old when he was adopted by a group of white Canadian social activists. He was malnourished and functionally illiterate from a life of poverty in a Brooklyn ghetto. The Canadians restored Martin's health and taught him how to read. Within a year, he was studying black history and had read "Native Son" by Richard Wright and "The Autobiography of Malcolm X".
As told in the book "Lazarus and the Hurricane" by Sam Chaiton and Terry Swinton, one propitious day Martin went to a book sale at the Metro Toronto Public Libraries where he found a copy of "The 16th Round." Intrigued by the title -- since there are only 15 rounds in boxing -- and empathizing with Carter's plight, Martin began to write to Carter in prison. It did not take much persuasion on Martin's part to interest the group of Canadians in the Carter cause. Horrified by Carter's continued incarceration, the group did research and prepared legal briefs that led to Carter's final appearance before a federal court judge.
Judge H. Lee Sarokin overturned the conviction and declared that both of Carter's two previous convictions had been based on "racism rather than reason, and concealment rather than disclosure." At long last, Carter was freed in 1985 but it took another three years before the charges against him were completely dismissed. Paterson, New Jersey, home to the beat poet, Allen Ginsberg, was a beat town indeed for Rubin Carter, who took up residency in Toronto after he got out of jail.
Today, Rubin Carter is a beacon for the wrongly convicted everywhere. He lost the sight in one eye in prison when he was refused outside medical care but Carter has never lost sight of the importance of fighting against racism and social injustice. Today, he is the Executive Director of a Toronto-based lobbying group called AIDWYC, the Association in Defense of the Wrongly Convicted .
AIDWYC was formed in 1993. Its first case was that of Guy Paul Morin, who was wrongly convicted of sexually assaulting and murdering his 9-year-old neighbor, Christine Jessop. AIDWYC consists of lawyers, law students, lay members and supporters . The group has worked on cases all over Canada from Nova Scotia to Quebec.
James Lockyer is an energetic and dedicated lawyer who helped to found AIDWYC and sits on the Board of Directors. He has defended several men who were wrongly convicted including David Milgaard and Guy Paul Morin, both of whom were exonerated based on DNA. Lockyer is currently representing Steven Truscott, a man who was convicted of killing young Lynn Harper when he was a teenager nearly 40 years ago. Truscott served all of his time and now lives under a pseudonym somewhere in Ontario. Many Canadians have always thought Truscott was innocent. Soon we will know for sure.
Rubin Carter defied the odds. He was released from a life
of hell and exonerated. Now he works tirelessly to make sure that the same travesty of
justice is not perpetrated on other innocent people. So does the teenager from Brooklyn,
Lesra Martin, who is now pursuing a career as a lawyer and is a member of the AIDWYC Board
of Directors.
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©Justice: Denied
