[Deathpenalty] death penalty news----MISS., ILL., NEB., COLO., USA

[Rick Halperin]

July 20


MISSISSIPPI:

McGilberry sentencing could be weeks away


Attorneys for a Jackson County man facing re-sentencing on capital murder 
charges want a jury to decide his punishment.

Prosecutors said during a hearing Friday that a judge should do it.

Circuit Judge Robert Krebs said he will study various Supreme Court rulings in 
other cases before making the decision.

Stephen Virgil McGilberry, now 37, was 16 when he was initially sentenced to 
death in 1996 in Jackson County.

The Sun Herald reports McGilberry is asking for his release or at least a 
chance at being released after 20 years in prison, 10 of those years on death 
row.

McGilberry was convicted of using a baseball bat to kill 4 relatives on Oct. 
23, 1994, in the St. Martin community.

McGilberry's stepfather, Kenneth Purifoy; mother, Patricia Purifoy; stepsister, 
Kimberly Self and her 3-year-old son Kristopher Self, were murdered. McGilberry 
took a money order from his mother's purse and drove away in the family's 
vehicle.

The jury sentenced him to death, but a U.S. Supreme Court ruling took the death 
penalty off the table for juveniles convicted of homicides.

In 2005, McGilberry was re-sentenced to four life terms without parole.

In 2012, the U.S. Supreme Court found it is unconstitutional to impose a 
mandatory life-without-parole sentence on someone who was under the age of 18 
at the time of the crime.

In 2014, the Mississippi Supreme Court gave McGilberry permission to seek a new 
sentencing hearing in Jackson County.

(source: Associated Press)






ILLINOIS:

Wilmette Theatre Examines Miscarriage of Justice


Murder, confession, capital punishment and unethical investigations are some of 
the complex issues that will be examined at the Wilmette Theatre's showing of 
the documentary "A Murder in the Park" on July 19. The movie will be followed 
by a talkback with Chicago investigative reporter John Drummond and moderated 
by former TV news anchor Linda MacLennan.

The documentary is about a 1982 double homicide of two teenagers that occurred 
on Chicago's South Side, a crime that played a pivotal role in the abolition of 
Illinois' death penalty. The movie sheds light on the resulting convictions of 
2 different men for those murders, both of whom were ultimately exonerated.

In 1983, Anthony Porter was convicted for the murders and sentenced to death. 
But in 1998, Northwestern University's Innocence Project re-investigated the 
case and uncovered the supposed real killer, Alstory Simon, whose confession 
led to the release of Porter from death row. Porter's release lead 
then-Governor George Ryan to halt all executions in Illinois.

Murderinpark

While some may argue that the case prompted the death penalty's end in Illinois 
in 2011, since then questions have been raised as to the investigative tactics 
employed by the Innocent Project. In 2013, Cook County State's Attorney Anita 
Alverez directed her office to review Simon's case. After serious concerns were 
raised about the tactics employed to secure Simon's confession, his conviction 
was dismissed in October 2014. According to the Chicago News Tribune, in 
February 2015 Simon filed a $40 million lawsuit in federal court against 
Northwestern, alleging unethical tactics such as giving witnesses money for 
drugs, lying about identities and flirting with witnesses.

Investigative reporter John Drummond reported extensively on this case at the 
point when questions were raised about the Innocence Project's investigative 
tactics. Drummond interviewed Simon's attorneys Terry Ekl and James Sotos.

Drummond said attendees can expect to catch a glimpse of some people's 
willingness to bend the rules a bit in their eagerness to free someone. "They 
will see a miscarriage of justice," Drummond said. "A man was railroaded into a 
confession of a murder he didn't commit."

After the movie, Drummond plans to answer questions and share his 1st-hand 
experience reporting on this landmark case. Drummond was a reporter for WBBM-TV 
for nearly 4 decades and has written 2 books.

The documentary will play on July 19 at 2pm at the Wilmette Theatre, 1122 
Central Avenue, Wilmette. Tickets and more information are available at 
www.wilmettetheatre.com.

(source: Daily North Shore)






NEBRASKA:

Death Penalty Desperation in Nebraska


Liberals used to argue that life imprisonment was better than execution when it 
came to dealing with those convicted of raping and murdering little girls, 
cutting off heads of husbands while wives watched, committing mass murders, 
etc. The problem is that they didn't persuade many people of their 
righteousness.

So they settled on a new tactic, challenging every step of the death penalty 
mechanism to make it as hard as possible to carry out. Then, holding up a sock 
puppet and speaking through it as if they weren't the ones causing the 
problems, they could argue that the death penalty is too hard to carry out.

That's what they are doing now in Nebraska. The legislature, over the 
governor's veto, eliminated the death penalty and now citizens are pushing a 
referendum to restore it. Liberals are arguing that it is now impossible to 
execute criminals:

For the legislators who voted to repeal the death penalty, the petition drive 
is an unwelcome development.

I'm sure the leftist legislators find citizen participation a very unwelcome 
development.

For months, a coalition of Democrats, moderate Republicans and independents 
worked to persuade their constituents that the death penalty was not working in 
Nebraska: The state has not executed a prisoner since 1997 and has not been 
able to procure lethal injection drugs. European manufacturers of some of the 
drugs, citing ethical objections, have refused to sell them to prisons in the 
United States, and the Food and Drug Administration has said one of the drugs 
cannot be legally imported.

Nebraska doesn't have to use lethal injection. They can use bullets, death by 
firing squad, like Utah does. If they switched to that system they wouldn't 
have to worry about some squishy Frenchman selling them the bullets. If they 
ran short, victim's families would probably donate them.

Some lawmakers made a conservative argument against capital punishment, saying 
it was just another failed government program, expensive and inefficient.

I wonder who argued that it was "just another failed government program"? Do 
you think it's something a Democrat would say? Or a "moderate" Republican? Both 
are very worried about getting good results and keeping costs down ... when it 
comes to being tough on crime. But not for very much else.

...now opponents of the death penalty have hastily formed a group, Nebraskans 
for Public Safety, to campaign against a repeal.

I have a better name for them. How about "Nebraskans for murderers living the 
rest of their lives on the taxpayer's money"? It's less catchy, and more of a 
mouthful, but on the other hand, much more accurate and descriptive.

Liberals only worry about cost and efficiency when it comes to crime, border 
security, and national defense. Funny how it works out that way, doesn't it?

(source: This article was produced by NewsMachete.com, the conservative news 
site----American Thinker)





***************************

Take high road


As a nearly lifelong resident of Nebraska, I don't want the state killing 
people on my behalf. It's twisted logic to think that murdering a murderer 
somehow makes things right. Plus, there have been documented cases of innocent 
people being put to death for crimes they were later discovered to have not 
committed.

I have no sympathy for criminals and agree they should be incarcerated for 
their crimes, but capital punishment is a senseless, unconscionable, expensive 
waste of time and taxpayer dollars. Let's take the high road, Nebraska. Keep 
the repeal of the death penalty. Don't sign the petition ("Death penalty 
financial reports filed," July 2).

Molly Nance, Lincoln

(source: Letter to the Editor, Journal Star)






COLORADO:

Death penalty trial begins for Dexter Lewis - man accused in Fero's Bar and 
Grill massacre


Opening statements begin Monday for a man accused of stabbing 5 people to death 
in a Denver bar.

If Dexter Lewis is convicted, he could face the death penalty.

It will be the 1st time Denver prosecutors have tried a death penalty case 
since 2001, according to our partners at The Denver Post.

"I've been in the Denver DA's Office for 30 years and I've never seen a case 
where there were 5 people were killed at the hand of 1 individual," Denver 
District Attorney Mitch Morrissey said in July 2013 when he announced his 
office would seek the death penalty against Lewis. "We have a man and 4 women 
that were allegedly laid down on the floor of a bar and butchered. Based on 
that, I think it's appropriate for us to seek the death penalty."

The massacre happened on October 17, 2012 at Fero's Bar and Grill on South 
Colorado Boulevard, across the street from Target and a Wells Fargo Bank.

Firefighters responding to a fire at the bar found 5 bodies. Police said they 
believed the fire was set to cover up the killings and that robbery was the 
motive for the slayings.

The suspects got away with just $170, according to court records.

Those killed were bar owner Young Fero, 63; Daria M. Pohl, 21; Kellene Fallon, 
44; Ross Richter, 29; and Tereasa Beesley, 45. The Denver Medical Examiner said 
all 5 victims died of multiple stab wounds.

Just hours after the killings, Lewis was arrested at Shepherds Motel.

2 brothers, Joseph Hill and Lynell Hill, were also arrested. They have pleaded 
guilty for their roles in the crime. Joseph Hill was given 5 life sentences. 
Lynell Hill was sentenced to 70 years in prison.

Both are expected to testify against Lewis.

-- Informant helped police solve case --

During a March 2013 hearing, Detective Mark Crider said Demarea Harris, an 
informant for the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, 
helped police unravel the case.

According to a search warrant obtained in 2013 by the Denver Post, Lewis had 
asked his jail cellmate to find and kill Harris, members of his family and 
others he believed cooperated with police.

He also provided the cellmate with a hand-drawn map of the crime scene, which 
detectives described as accurate, and a 2nd map with addresses and phone 
numbers, according to the search warrant affidavit.

The cellmate told detectives that Lewis pricked both their fingers with a pin 
until they bled and then pressed their fingers onto a verse in Lewis' Bible, 
according to the search warrant. As they pushed their fingers against the 
verse, Lewis told his cellmate, "blood in, blood out."

That's the same phrase Lewis recite to Harris after Harris witnessed the 
killings and then ran off to a nearby grocery store, police said. Harris told 
police Lewis kissed him and said he loved him and said, 'Blood in, blood out.'"

-- Informant detailed horrific killing of 5 innocent people --

Detective Crider testified that Harris told police he was with the three 
defendants smoking marijuana and listening to music at Joseph Hills' apartment 
on East Kentucky Avenue on the night of the killings.

Harris said he had known Joseph Hill a couple weeks and he had known Lewis a 
couple months.

After partying at the apartment, Harris said he and the 3 men got in a car and 
drove to Fero's Bar, Crider testified.

Harris sensed something was up when he spotted an Ironman mask and an 
Incredible Hulk mask on the floor of the car, Crider testified.

Crider said, "(Harris) made a comment about it being Halloween. There was no 
response" from the other men.

Then, as Lewis and Harris walked up to the front door of Fero's, Harris told 
police that "Lewis pulled down his shirt sleeve over his hand and used that 
hand to open the door," Crider testified.

Harris and Lewis began playing pool in the bar. Harris said Lewis was angry 
with 2 women at the bar.

Lewis pointed to a white woman drinking at the bar and said, "She had kicked 
him and his girlfriend out of their apartment," Harris told police.

Crider also said the informant told him that Lewis said the Asian woman -- bar 
owner Young Fero -- had once booted him out of the bar.

Harris told police that Lewis was "mean-mugging" and "mad-dogging talking" 
about the women, Crider recalled.

"I'm going to get them bitches," Lewis vowed, the informant told police.

Harris went out the back door to smoke with some of the bar patrons.

"They were nice people," the informant told Crider.

As Harris went to use the bathroom, he heard the rear door of the bar close, 
Crider said. He could hear people talking in the bar.

Harris came back into the bar to find Joseph Hill wearing the Hulk mask and his 
brother, Lynell, wearing the Iron Man mask, Crider testified.

The brothers were armed with handguns, the informant told Crider. The brothers 
and Lewis were all wearing gloves.

Harris said Lynell Hill was holding the Asian woman down on the floor, while 
Joseph Hill was running around looking for the cash register.

Lewis was beating a woman on the dance floor, the informant told police. Later, 
Harris told investigators that Lewis was armed with a knife.

"They put everyone on the ground," Crider said the informant told police. "They 
were trying to control everybody, yelling about wallets, ID's and credit

cards." "They pointed a gun and yelled. 'Get the tape, get the tape,'" Harris 
told Crider, referring to masking tape in the car.

Harris told police he dropped to the floor, too, because they were pointing 
guns at him.

Crider said the informant told them he saw the men stab several people in the 
bar.

When asked how many times they were stabbed, Crider said, "Numerous. (Harris) 
used a stabbing motion over and over and over." Harris said Lewis also stabbed 
the juke box.

According to Crider, the informant said that Joseph Hill stabbed the man at the 
bar and then he passed the knife to Lewis, who stabbed the women over and over. 
Then Lewis passed the knife back to Joseph Hill.

Lewis told Joseph Hill to kill the bar owner, saying "They couldn't have any 
witnesses," Harris told Crider. "(Joseph Hill) went down, slit her throat and 
stabbed her twice in the head," Crider quoted the informant's account.

Harris told police he jumped up and ran out the back door to nearby King 
Soopers. As Harris was leaving, he said he saw the 3 men breaking bottles and 
pouring alcohol on the victims, Crider testified.

Harris told police he got a call on his cellphone from Lewis' cellphone. It was 
Joseph Hill calling. The 3 men drove to King Soopers to pick Harris up.

Harris told Crider he noticed the strong smell of gasoline in the car. Harris 
told police Joseph Hill was concerned about his fingerprints being on the gas 
can. The men told Harris they had torched the bar, Crider testified.

All 4 men returned to Joseph Hill's apartment.

Lewis and the Hill brothers "started destroying evidence ... And split up the 
money," Crider said the informant told police.

"They started cutting up gloves, putting bleach on items and burning items in a 
small pot," the informant said.

Lewis' girlfriend picked him up and they gave Harris a ride back to his hotel.

Crider said the informant told them, "Mr. Lewis kissed him and said he loved 
him and said, 'Blood in, blood out.'"

The informant told police he was stunned.

"These were innocent people," Harris said. "If they were gangsters killing 
gangsters, I wouldn't be here talking to you, but these were good people."

Police asked Harris why the men pulled the robbery.

Harris told police that Joseph Hill wanted to get money to help pay for a court 
case his brother was facing. They decided to rob Fero's because Joseph Hill was 
familiar with the bar and knew there was not a lot of people inside.

1 of the handguns used in the robbery was a .357-caliber purchased 2 days prior 
at a Bass Pro Shops, Crider said.

Under questioning, Joseph Hill told police what happened, Crider testified.

Joseph Hill told police he went behind the bar and used the butt of his gun to 
break the security camera.

"The cash register was on the floor broken apart. It was consistent with what 
Joseph Hill told me," Crider said.

Police later recovered a knife, gun, 2 masks and a red plastic gas can, Crider 
said.


(source: thedenverchannel.com)






USA:

There's no reasonable justification for the death penalty


It is interesting that after any major heinous crime in the United States, the 
mobs clamour for the death penalty.

It is as if by murdering the culprit, a cleansing of the conscience can take 
place or retribution will make us all feel better. It is as if society can feel 
vindicated by murdering the murderer. Take that you filthy swine!!!!

So often the quick solution is not the best solution.

As Winston Churchill famously said, "The Americans will always do the right 
thing after they have exhausted all other options."

Europe is virtually capital punishment free. Canada eliminated the death 
penalty in 1976, yet our neighbours to the south still languish in the 
should-be-long-gone era of the gallows, firing squads and electric chairs - and 
now lethal injection. No other developed country has the death penalty except 
Belarus and Kazakhstan, which have had a most violent recent history.

The United Nations is against capital punishment. Amnesty International is 
against it, as are most modern churches. The whole idea of forgiveness, 
reconciliation and the possibility of repentance are at the basis of Jesus' 
philosophy.

The biggest proponents of the death penalty are China, Saudi Arabia, Iraq, Iran 
and the United States. That's not a group I would want to be associated with. I 
think I will stick with England, Finland, Italy and Canada.

After the jury reached a verdict in the Boston Marathon bombing case, it seemed 
like America breathed a sigh of relief with the unanimous decision that 
Dzhokhar Tsarnaev should die. It seemed as though the common thought was that 
if this guy gets off, what about all those others who have done something less 
evil.

Amnesty International is the major global human rights organization. "The death 
penalty is a symptom of a culture of violence, not a solution to it," it 
proclaims.

Amnesty International opposes the death penalty in all cases, regardless of the 
characteristics of the offender, the crime or the method of execution. It 
opposes the death penalty on the grounds that it is a violation of the right to 
life and the right not to be subject to cruel or inhumane treatment or 
punishment. These rights are fundamental ones enshrined in the United Nations 
Universal Declaration of Human Rights.

However, in practice the death penalty regularly violates many other human 
rights:

--The death penalty disproportionately affects the poor;

--The death penalty disproportionately affects visible minorities and other 
marginalized groups;

--Death sentences in many parts of the world routinely result from evidence 
extracted through torture;

--Innocent people have been executed and nothing short of abolition can 
guarantee that no innocent person will be wrongly executed;

--Capital punishment is often imposed for crimes or circumstances that 
international law or standards say should not have a death penalty, such as 
being imposed against those who were under the age of 18 at the time of the 
offence, following an unfair trial and for non-lethal crimes such as drug 
trafficking or political offences.

On June 17, Dylann Roof killed 9 individuals at a South Carolina church. It 
didn't take long for the mob to start talking about a death sentence.

It should be pointed out that executions say far more about society than it 
does about the guilty individuals. It speaks to our civilization, our evolution 
as a moral species, and for those so inclined, our Christianity.

As British journalist Auberon Waugh noted, "The main objection to killing 
people as punishment is that killing people is wrong."

Consequences for misdeeds should have 3 purposes: punishment for wrongdoing, a 
deterrent for the individual, and a deterrent for the rest of society. 
Ultimately, society should be better off because of the action taken.

Life imprisonment would accomplish in a humane way the same function as the 
death penalty. Capital punishment has never been proven to be a deterrent for 
criminal acts and society has never been better of by its enactment.

U.S. Democratic party Senator Russ Feingold puts it best: "It is just really 
tragic that after all the horrors of the last 1,000 years, we can't leave 
behind something as primitive as government-sponsored execution."

(source: Mike Noonan is a member of the Guelph Mercury's community editorial 
board)

******************

Evidence of police dishonesty leads to overturned convictions nationwide


Maybe Debra Jean Milke masterminded the murder of her tow-haired son 
Christopher in Phoenix just before Christmas 1989 to collect the 4-year-old's 
$5,000 life insurance policy.

Or maybe - as Milke has insisted all along - she was just the innocent victim 
of a corrupt cop with a proven pattern of lying who was out to win a 
conviction.

Whichever is true, Milke, 51, is a free woman now after spending 23 years on 
death row, convicted of conspiring with 2 men to kill Christopher.

She was released from prison because prosecutors withheld evidence of 
misconduct by then-Phoenix Police Detective Armando Saldate Jr., who testified 
Milke confessed to him.

"That was pretty outrageous," said Judge Alex Kozinski of the U.S. Court of 
Appeals for the Ninth Circuit of the Milke case in general.

Kozinski wrote the panel's 2013 decision overturning Milke's conviction because 
of Saldate's undisclosed history of dishonesty. The Arizona Court of Appeals 
threw out the murder charges last year and in March, the Arizona Supreme Court 
declined further review.

"If a cop lies and convicts an innocent person and they get executed, they're 
just as dead as if a cop shot him," Kozinski said during a recent telephone 
interview.

It's another way in which police can violate someone's civil rights, Kozinski 
said.

Milke's case is one of a growing number of convictions overturned across the 
country - another just last month in Massachusetts - because prosecutors failed 
to disclose evidence of police misconduct that could have helped prove the 
defendant's innocence.

A convicted murderer in New Hampshire is seeking a new trial on similar 
grounds.

Called Brady material because of the 1963 U.S. Supreme Court case Brady v. 
Maryland, prosecutors are constitutionally required to turn over all favorable, 
material evidence to the defense.

That includes evidence of police dishonesty such as lying in an official 
proceeding, falsifying evidence or stealing when an officer is going to 
testify, but can also include excessive use of force. The defense could then 
use the information to impeach an officer's testimony.

The Ninth Circuit was so disturbed by Milke's case that the panel referred its 
opinion to the U.S. Attorney for the District of Arizona and the Assistant U.S. 
Attorney General of the Civil Rights Division "for possible investigation into 
whether Saldate's conduct, and that of his supervisors and other state and 
local officials, amounts to a pattern of violating the federally protected 
rights of Arizona residents."

Kozinski learned through the media that nothing came of the referral.

"They do not consider lying cops to be quite the same priority as shooting 
cops," Kozinski said during an interview. "Maybe because they don't get riots 
and they don't get the same kind of public reaction as when police shoot 
somebody, but in essence it's the same thing.

"They are helping commit violence against the suspect by words, but words can 
have the same effect," Kozinski said.

Impeachment evidence

When a Brady violation is discovered later that would have likely changed the 
outcome or the penalty, it usually results in the verdict being overturned and 
in egregious cases like Milke's, the charges being dismissed altogether.

Had they known about Saldate's history of dishonesty, Milke's lawyers could 
have impeached his testimony, Kozinski wrote.

There's no physical evidence linking Milke to the murder of Christopher, 
Kozinski wrote.

"The only evidence linking Milke to the murder of her son is the word of 
Detective Armando Saldate, Jr. - a police officer with a long history of 
misconduct that includes lying under oath as well as accepting sexual favors in 
exchange for leniency and lying about it," Kozinski wrote in the opinion.

"On the last evening of his short life, Christopher Milke saw Santa Claus at 
the mall," Kozinski wrote.

Christopher woke up the next morning pleading with his mother to visit Santa 
again. She sent Christopher to the mall with her roommate, James Styers, who 
picked up a friend, Roger Scott.

"But instead of heading to the mall, the 2 men drove the boy out of town to a 
secluded ravine, where Styers shot Christopher 3 times in the head," Kozinski 
wrote.

The men then drove to the mall and reported Christopher missing.

"Could the people of Arizona feel confident in taking Milke's life when the 
only thread of evidence on which her conviction hangs is the word of a 
policeman with a record of dishonesty and disrespect for the law?" Kozinski 
wrote.

"Bad cops and those who tolerate them put us all in an untenable position."

Styers and Scott were also convicted of murdering Christopher. They both remain 
on death row and have never testified against Milke.

Milke has sued the city of Phoenix, Maricopa County Attorney Bill Montgomery, 
and several police officers and officials claiming her civil rights have been 
violated.

Buddy Rake, one of the lawyers representing Milke in the civil suit, said she 
would have no further comment, but she did hold a news conference in March.

"I had absolutely nothing to do with the brutal murder of my son Christopher," 
Milke told reporters. "I did not give a confession to Mr. Saldate."

Tearfully, Milke said how much she misses her son and how Christopher loved to 
spin out on his Big Wheel bike. She also explained how it feels having been 
wrongly accused and convicted of killing him.

"Try to imagine that as some of you sit in judgment of me," Milke said. "My 
innocence did not matter in their pursuit of a conviction. ...

"This could happen to any one of you," Milke said.

Confidential barriers

Research for this article, sponsored by the Fund for Investigative Journalism, 
revealed a lack of consistency when it comes to finding out about police 
misconduct, the kind of evidence the defense could use to challenge an 
officer's testimony.

States vary widely on what constitutes police Brady material, whether 
prosecutors or the public can review police personnel files and when such 
misconduct must be disclosed.

Jonathan Abel wrote about the disparities for the Stanford Law Review in 
"Brady's Blindspot: Impeachment Evidence in Police Personnel Files and the 
Battle Splitting the Prosecution Team."

"(The disparities) deprives some defendants of their constitutional due process 
rights simply by virtue of where they happen to be tried," Abel wrote.

Defendants on trial in Minnesota and some other states are more likely to 
benefit from their rights under Brady because police discipline is a matter of 
public record.

The accused is less likely to learn about a testifying police officer's 
propensity to lie in states where police personnel files are confidential, or 
where there are complex barriers to obtaining the information.

"These protections benefit dirty cops by allowing them to testify and, thereby, 
hold on to their jobs," Abel wrote. They also harm defendants who are denied 
evidence to which they are constitutionally entitled.

"And they harm society by undermining due process and allowing dishonest 
officers to stay on the job," Abel wrote.

Even well-intentioned prosecutors are hamstrung in some states by local 
regulations that keep them from reviewing the files themselves, forcing 
prosecutors to rely instead on police agencies to alert them to problem 
officers, Abel said.

The stakes are high all around.

"Suppression of this misconduct evidence can cost defendants their lives, but 
disclosure can also be costly," Abel wrote. "It can cost officers their 
livelihoods."

Tuftonboro, New Hampshire, Police Chief Andrew Shagoury has seen the Brady 
issue from the perspective of a patrol officer and as chief.

"It definitely could ruin a career, but not always," Shagoury said of the Brady 
designation, which in New Hampshire means an officer has been placed on a 
"Laurie list."

There was enough concern by police in New Hampshire about the fairness of the 
Laurie system that they pushed for legislative reform, but what ended up 
passing was a study commission.

In small departments, there may be no work for an officer who will be 
problematic when testifying, he said.

"The issue has become one of, is there consistency in putting people on the 
list and if they are on the list, how do they get off," Shagoury said.

"As a chief in leadership, you have to worry about being able to run the 
department. You want to treat people fairly, and have to be concerned about due 
process rights."

Shagoury remembers a case in a different department in which an officer was 
placed on the Laurie list for pranking a fellow officer and lying about it at 
first.

"I don't think people want dishonest officers to testify. But what if it truly 
was a mistake that was blown out of proportion?" Shagoury said.

The public expects police do their work with integrity, he said.

"Nobody wants that more than police officers," Shagoury said.

No statewide system tracking dishonest police in Vermont

There's no statewide protocol in Vermont to make sure all favorable, material 
evidence of a testifying police officer???s misconduct is disclosed to the 
defense, but Defender General Matthew F. Valerio said it doesn't appear to be a 
big problem.

Vermont is a small state, so people will probably find out if an officer has a 
problem telling the truth, Valerio said, adding some cases could be missed.

"Some cases fall through the cracks," Valerio said. "The question is, does it 
make a difference? I think in some cases it makes a difference, in some cases 
it doesn't."

Because of the 1963 U.S. Supreme Court case Brady v. Maryland, prosecutors are 
required to alert the defense to all favorable, material evidence that could 
help prove the defendant???s innocence.

That includes testifying police officers who have been disciplined for 
dishonesty, and sometimes for excessive use of force.

Prosecutors don't always know there's been an internal affairs investigation, 
Valerio said.

"Unless it comes to light, I think that's probably one of the areas where you 
have a vacuum as far as turning over the material," Valerio said.

Defense investigators sometimes come across such evidence about an officer, he 
said.

"It always comes down to the question of you don't know what you don't know," 
Valerio said. "In the vast majority of cases, we get what we need."

Assistant Vermont Attorney General John Treadwell, head of the homicide unit, 
said he is not aware of any disclosure problems.

"We rely on police agencies," Treadwell said. "I have no reason to believe they 
are misleading us."

Scott Waterman, public information officer for Vermont State Police, said in an 
email that the department keeps track of disciplinary matters through the 
Office of Internal Affairs.

"Both the Commissioner of Public Safety and the Director of the Vermont State 
Police take their responsibility to the criminal justice system seriously and 
when the department becomes aware of a personnel matter that could impact a 
prosecution, we obtain permission from the State Police Advisory Commission to 
share the information with prosecutors," Waterman wrote.

Exoneration list grows

Samuel L. Gross, a law professor at the University of Michigan Law School and 
the editor of the National Registry of Exonerations, said it is impossible to 
know how often wrongful convictions result from prosecutors failing to disclose 
Brady police information.

It is just one type of the "official misconduct" category included in the 
registry's research. To get more detail, the registry is recoding the first 
1,367 exonerations, he said.

As of June 25, the number of exonerations was up to 1,624.

A recent study of the database listed official misconduct as a factor in 45 % 
of the exonerations. Perjury and false testimony were factors in 56 %; mistaken 
witness identification in 33 % of cases; false or misleading forensic evidence 
in 23 %; and false confessions in 13 %.

"I suspect those cases will be undercounted in the sense that it probably 
happens more often than anybody notices because, how do you know?" Gross said.

Even if the new coding provides more details, it will only represent cases in 
which the alleged perpetrator was exonerated.

There is no way to know about cases in which no one noticed, or someone noticed 
later, but there was other ample evidence that the person was guilty so the 
conviction wasn't overturned.

Post-conviction research is rare because it is expensive and time-consuming.

In Milke's case, it took 10 volunteers who worked 7,000 hours over 3 1/2 months 
to pore through court records looking for Detective Saldate's name, then more 
time to sort through them.

"Sometimes we find out later on," Gross said. "More often, we don't."

System cracks

Attorney Larry Hammond, a founder and president of the Arizona Justice Project, 
who introduced Milke at her news conference, said there is no state law in 
Arizona governing Brady police disclosure.

Phoenix maintains a Brady list of such officers, he said, but disclosures are 
still rare in Arizona.

"Most lawyers would tell you it's a pretty uncommon thing for them to press for 
the (police) personnel files, in part because the chance of getting the file in 
the absence of some specific knowledge that the cop has a problem is remote and 
it's time-consuming," Hammond said. "I do think lawyers should be pressing for 
them."

Prosecutors are feeling the pressure even though it is rare for a prosecutor to 
be disciplined for ethical lapses.

Kristine Hamann, a former prosecutor with the Manhattan district attorney's 
office, is now a fellow with the Bureau of Justice Assistance at the U.S. 
Department of Justice. She works on sharing best prosecutorial practices across 
the country.

Hamann has already met with prosecutors in 30 states, 18 of which have formed 
best practices committees. Brady police disclosure is one area of interest, 
Hamann said.

"These committees are committed to improving prosecutions so that convictions 
are right in the first instance - thus avoiding wrongful convictions," Hamann 
said.

Unusual transparency

Judy Johnston, training manager for the Hennepin County Attorney's office, said 
police discipline is a matter of public record in Minnesota. Anybody can find 
out about it.

Just to make sure nothing is missed, her office recently scoured all police 
personnel records in the county's largest police department, something that 
would be unheard of in many states.

Hennepin County will also follow the lead of Ramsey County in Minnesota and 
begin keeping a list of Brady cops as well to make sure defense attorneys don't 
miss any potential Brady material.

Minnesota has a long history of open file discovery, she said.

"We want to make sure we're not convicting innocent people," Johnston said.

Reluctant prosecutors

Judge Kozinski said some prosecutors don't like disclosing Brady material 
because it weakens their own cases.

"Getting a lot of prosecutors to comply with Brady is like pulling teeth," 
Kozinski said.

In the Ninth Circuit's ruling, Kozinski made it clear that Milke may well be 
guilty. When asked his opinion, Kozinski said: "I don't know. I don't have a 
crystal ball."

It wasn't the panel's job to re-examine guilt or innocence, he said.

"You have to be guilty and found guilty by a correct and fair process," 
Kozinski said.

Kozinski advocates for open file discovery to make sure all defendants get a 
fair trial.

"Anybody could be a defendant if unlucky enough," Kozinski said. The Brady 
doctrine "protects all of us and our loved ones."

What if Milke is, in fact, innocent?

"Then you've got a real miscarriage of justice, a very serious miscarriage of 
justice, of course," Kozinski said.

Overturned: 22 years in prison for killing a cop

In Massachusetts, Sean K. Ellis has become the latest convicted murderer to win 
a new trial because his constitutional right to all favorable material evidence 
involving police misconduct was violated.

Only this time, one of the officers, Boston Police Detective John Mulligan, was 
also the homicide victim - shot 5 times in the face as he slept in his car on a 
paid police detail outside a Walgreens in 1993 in Roslindale, Massachusetts.

Ellis was 19 at the time and told police he went to the store to buy diapers 
for a relative that night.

Ellis, now 40, has served 22 years of a life sentence for killing the veteran 
detective but was never told Mulligan was under investigation at the time for 
ripping off drug dealers.

On May 5, Suffolk County Superior Court Judge Carol S. Ball ordered a new trial 
for Ellis. Ball also cited newly discovered evidence that 3 other police 
detectives who were involved in Mulligan's corruption scheme were also 
significantly involved in his homicide investigation.

"(T)his is a case where justice has not been done," Ball wrote.

Attorney Rosemary Curran Scapicchio fought for 14 years in state court to pry 
open Boston Police Department personnel files related to Mulligan but had no 
luck until she filed a federal request for information.

The results were explosive. FBI informants described Mulligan as a rogue cop 
who beat up prostitutes and robbed and extorted people.

It happens more often than not that police discipline is withheld before trial 
or comes up in the middle of a trial or even years later, Scapicchio said.

"They get away with it because there are no repercussions, no discipline," 
Scapicchio said.

Police fail to disclose the misconduct to prosecutors who then turn a blind 
eye, she said.

"Nobody rocks this boat," Scapicchio said. "They get commendations when they 
withhold evidence so there is no downside."

John Mulligan's brother, Richard Mulligan, said his brother had a "clean slate" 
and was never charged or convicted of a crime. He believes Sean Ellis is guilty 
of shooting his brother to death and that he shouldn't get another chance at 
freedom.

"Sean Ellis did it," Mulligan said in a brief telephone interview. If the court 
system lets him off, then "justice is stupid."

Ellis supporters helped raise the $50,000 bail Ellis posted while he waits for 
the state's anticipated appeal of Ball's ruling.

Renee Nadeau Algarin, deputy press secretary to Suffolk County District 
Attorney Daniel Conley, said in an email that no evidence was withheld in 
Ellis' case.

Ellis' conviction was based on direct, reliable, corroborated evidence, she 
wrote.

"And we intend to present that evidence to a new jury if necessary," Algarin 
wrote.

If it goes to trial, it will be Ellis' 4th for the same offense. Jurors in the 
first 2 trials couldn't agree on a verdict.

The conviction of Ellis' co-defendant in Mulligan's murder, Terry Patterson, 
was overturned on unrelated grounds. Patterson pleaded guilty to manslaughter 
and was released from prison in 2006.

Elaine A. Murphy, who advocates for Ellis, said he is adjusting to life outside 
prison and is hoping to go to college.

"Life is a total thrill to him," said Murphy who had dinner with Ellis since 
his release and plans to write a book about his case. "He sits back and shakes 
his head and smiles."

New Hampshire mayhem Convicted murderer Eduardo Lopez is seeking a new trial in 
New Hampshire claiming the state failed to disclose "impeachment evidence of 
prior bad acts by then-detective John Seusing."

Lopez, who was 17 in 1991 when he was charged with murdering Robert Goyette 
during a robbery in Nashua, has filed a motion for a new trial in Merrimack 
Superior Court.

His original trial focused on whether Lopez was the shooter, and whether he was 
so drunk that he couldn't form the requisite intent.

Seusing later became the police chief of Nashua, the state's 2nd-largest city, 
and has since retired. He testified then about Lopez's booking video, which was 
disputed at trial, and has not recently been found.

The defense claimed it showed Lopez being dragged into the police headquarters 
nearly unconscious, while the state said it showed he was "cocky, cunning and 
soberly belligerent."

Seusing's past discipline came to light 2 years ago after Anthony Pivero, a 
former Nashua police officer, filed a complaint with Attorney General Joseph 
Foster.

Pivero claimed prosecutors had failed to disclose in an unrelated 1995 murder 
case that Seusing had been suspended for 15 days for lying to his superiors 
earlier in his career.

The attorney general's investigation showed Seusing's discipline had in fact 
been disclosed to the judge, who ruled it inadmissible at trial, but it was 
never disclosed again as required under Brady.

As a result, Foster notified Lopez and 2 other convicted murderers of the 
disclosure failure, which paved the way for Lopez to seek a new trial.

(source: This story by Nancy West was sponsored by the Fund for Investigative 
Journalism and hosted by VTDigger. West founded the New Hampshire Center for 
Public Interest Journalism, which will launch its news website NHinDepth on 
Sept. 1.----vtdigger.com)