The Miami Herald has reported on line today:
Freedom for wrongly-convicted Orlando Bosquete hit a snag Tuesday morning when a Monroe County judge postponed an exoneration hearing by two hours to give immigration officials time to show up and possibly escort the Cuban native to the Krome detention center in West Miami-Dade.
Bosquete, the sixth person in Florida set to be exonerated by DNA evidence, was convicted of sexual assault and burglary in 1983 based on an eyewitness account. He was sentenced to 55 years in prison.
Bosquete was to be freed at a 10 a.m. hearing by Monroe County Circuit Court Judge Richard Payne. ..
Scheck made it clear it was the federal government that was delaying his client's release.
The court's bailiff said it was Immigration and Customs Enforcement that asked the judge to continue to hold Bosquete. ICE Spokeswoman Barbara Gonzalez said she'd comment later Tuesday...
In Payne's courtroom, wearing a white baggy jacket, shirt and pants of the same color and a blue New York Yankees cap, Bosquete alternated between tears of joy -- and sadness.His brother and sister and a niece sat nearby.
''We had plans to go fishing on a boat today,'' said Bosquete, speaking squarely to the media. ``Please, if you can help me, I want to get out.''
RUMPOLE SAYS: SHAME ON YOU- Haven’t these prosecutors ruined this man’s life enough? When prosecutors wonder why they are scorned when they are supposed to “wear the white hat”. This is the reason why.
JUST IN CASE WE HAVE ALL FORGOTTEN:
DNA testing of evidence has cleared the following Florida men:
• Alan Crotzer -- Released Jan. 23. Convicted in 1982 of raping a 12-year-old girl and her mother in Tampa. Sentenced to 130 years.
• Luis Diaz -- Released Aug. 3, 2005. Convicted in May 1980 of several rapes, kidnappings and robberies as the so-called Bird Road Rapist in Miami-Dade County. Sentenced to 13 life terms plus 55 years.
• Wilton Dedge -- Released Aug. 12, 2004. Convicted in May 1982 of raping a 17-year-old girl in Brevard County. Sentenced to life.
• Jerry Frank Townsend -- Released June 7, 2001. Convicted in 1980 of four murders in Broward County. Sentenced to life.
• Frank Lee Smith -- Convicted in 1986 of the rape and murder of an 8-year-old girl in Broward County. Died of cancer on Death Row on Jan. 30, 2000. DNA cleared him 11 months later.
Rumpole says: But you prosecutors, don’t be swayed but a half dozen or so ruined lives. You guys just keep on believing those police officers who tell you they have a good case with the eyewitness ID. Why bother to insist on excellent work when it comes to identification processes? Just continue to use the same old techniques that have worked (to ruin the lives of the above men) so well in the past.
By the way, if you guys think these are the only six, well, you don’t know beans about bubkas (a legal term….look it up.) These six were lucky enough to have some physical evidence that could be tested. How many hundreds, if not thousands of people have been wrongly convicted in our own state in cases that began with an ended with one ID?
To paraphrase an old song: “If you can’t convict the one who did it…convict the one you got.”
Finally, for you guys and gals in the white hats. Ever consider that the other tragedy is that the real rapists and murders are still on the loose?
Think Janet Reno would ever stand for such sloppy prosecution based on shaky facts?
But these days, raise those types of issues and you know what you get?
“Juahhhdge….hes a GORT he’s a PERP, he’s an LMNOP plus a QWERT….I spoke with the chief of [name your dopy subdivision within the SAO] and s/he said we can’t make a plea offer.”
Sort of like that old mercenary saying: “kill em all…let God sort em out.”
“Prosecute em all…let the jury sort it out.”
Yeah, you guys with the white hats….sleep well at night. Those of you without a conscience will…. And those of you with a conscience should work a little harder to get the police to change the way they conduct identifications.
See You In Court.
When you see something that is not right, not fair, find a way to get in the way and cause trouble. Congressman John Lewis
JUSTICE BUILDING BLOG
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43 comments:
Rumpole,
I won't bother trying to gainsay you on your tirade against prosecutors who follow their procedure and refuse to exercise discretion (mostly because we both know that it would be a futile gesture and won't convince anyone to change their position).
I do note two issues that your post raises.
1. Your first complaint is that many defendants are innocent and that the cops lie and (at least some) prosecutors ignore the truth. Fabulous. Now using lawyerspeak: assuming all that you allege is true, then shouldn't prosecutors be nolle prossing cases that are questionable rather than recommending less harsh sentences in questionabl cases? After all, the defendant is either guilty or not guilty. If the lying cop is the only thing standing between the defendant and an acquittal, then any sentence the defendant serves is naturally unjust and your tirade would continue unabated.
2. I have looked high and low throughout your blog and I have yet to see you or any defense attorney state: "Prosecutor X refused to exercise discretion in this case and I believe that it was the right call." It's odd how every case mentioned always calls for that mandatory discretion. I realize that this may be a byproduct of a criminal defense attorney perspective, but fair is fair.
3:13's post is right on point. I was wondering too, whether an ASA should get approval for a plea if they don't even think the guy did the crime. Kind of a no brainer to me, but I'm sure that's not what you meant. Remember there's a big difference between being an ASA who is too big of a wimp to get a better plea offer on a case where there's a good chance of acquittal, and the instance where the ASA doesn't think that the guy did it AND he can't prove his case. I think a lot of defense attorneys believe its unethical for an ASA to go forward on a case with weak evidence, meaning a case that isn't a slam dunk. There's always a question of innocence or guilt, but the existence of the question doesn't an unethical prosecution make. From what I read about the case against the freed man today, there isn't an ASA around who wouldn't have tried that case and slept well afterward, myself included. This is a sad reality of crime and punishment - it isn't perfect. I'm not sure what alternatives we have though, other than either giving up, or doing our very best to come as close as possible to making it right after the fact. Throwing up one's arms and saying, "that isn't justice!" doesn't come any closer to getting a solution either. Reality is reality, and that poor guy got snubbed, but it was more than a bad ID, the circumstantial evidence appeared pretty overwhelming as well.
What self-righteous clap trap! One DNA case in Miami-Dade out of literally millions of felony and misdemeanor cases prosecuted over the years, and the prosecutors did all they could to free that one innocent man. Perhaps you should rail against the outrages in Darfur or Afghanistan.
In case you had not noticed, prosecutors have too much 'business' going after the guilty and the evil to target the innocent (check the local section of the paper every day). Like all mortals, when we err we are obligated to correct our errors. If you have a case specific complaint, walk on over from the Justice Building and get a hearing with the person capable of making the final decision. This is a public office and you are entitled to your fair resolution.
Yapping about the injustices of the world is unlikely to make the Monroe County case disappear. Nor will it teach people to act ethically - or even with professional courtesy. You may never have been a prosecutor, but we all go home hoping that we never make the terrible error of convicting the innocent - and we do all we can to prevent wrongfully ruining another person's life.
I must be cruel to be kind - my job is to seek Justice without regard to the final result, yours may be over at getting your client acquitted -- even if that is a not what objective Justice would truly mean.
Turn the mirror at yourself and your peers, just in case there is some evil which needs attention there, as well
Here comes the part when Rumpole kisses Abe's ass and tells him how great he is and wishes all prosecutors were like him.
Dear Johnny-cakes:
I demand a complete, unmitigated and total retraction of the scandalous, libelous, outrageous, and utterly false allegations you made against my person. You must do penance and atone before your g-d for your contemptuous behavior. Is it not enough that you would believe I would or could commit such a heinous act but then without hesitation andwith malice aforethought you went public with your fabrication without speaking to me first. Were it not for the fact that I am totally without fault and as innocent as the driven snow, in this matter, I would haul you into friend court and require retribution and compensation. Let this be a warning to you...Do not make scurrilous allegations without first checking your facts. Even Joan Fleischman does that. I hereby make this demand: You must contact each person to whom this lie was told and recant in abject guilt. So it is said. So it must be.
Dear Johnny-cakes:
I demand a complete, unmitigated and total retraction of the scandalous, libelous, outrageous, and utterly false allegations you made against my person. You must do penance and atone before your g-d for your contemptuous behavior. Is it not enough that you would believe I would or could commit such a heinous act but then without hesitation andwith malice aforethought you went public with your fabrication without speaking to me first. Were it not for the fact that I am totally without fault and as innocent as the driven snow, in this matter, I would haul you into friend court and require retribution and compensation. Let this be a warning to you...Do not make scurrilous allegations without first checking your facts. Even Joan Fleischman does that. I hereby make this demand: You must contact each person to whom this lie was told and recant in abject guilt. So it is said. So it must be.
Rumpole's back!!
Abe's right. The VAST majority of prosecutors work far longer hours for far less than they deserve to protect our community. They deserve our respect.
Yes, some are snakes. That's no great revelation. You're going to find bad people in any large group. But, again, they do a much better job than some of you give them credit for.
Abe - you're right, but shouldn't we talk about the large number of exonerated defendants in Florida. Why do we have such a problem here?
shut up Brian
I heard the guy who wasnt released today had plans to go fishing. I wanted to go.
Very Sad.
Invoking its supervisory powers, the Connecticut Supreme Court unveiled a mandatory new jury instruction designed to reduce the risk of misidentification in criminal cases involving eyewitness evidence.
The instruction laid out in State v. Laquan Ledbetter is certain to impact local law enforcement. It is the court's answer to the fallibility of eyewitness identification procedures, documented by the growing number of wrongful convictions nationwide.
"This is the first favorable decision on identification that we've had in probably 15 years," said Ledbetter's appellate defense attorney Lisa Steele. A Bolton solo, Steele also co-chairs the Forensic Evidence Committee of the National Criminal Defense Lawyers Association.
"It's a decision of national importance," said criminal law expert Barry Scheck, a co-director of the Innocence Project, who teaches at the Benjamin Cardozo School of Law in New York. Scheck's Innocence Project was one of 10 amici that filed briefs in the case urging reform. Other amici included the Center on Wrongful Convictions at Northwestern University School of Law in Chicago and the Connecticut Criminal Defense Lawyers Association (CCDLA).
The new instruction, issued in the high court's unanimous Ledbetter ruling, is to be used in cases where the administrator of an identification procedure -- such as a police lineup, photo array or show-up identification -- either suggests to a witness of a crime that the perpetrator might be included in the display or fails to warn the witness that the perpetrator might not be present at all. The instruction cautions the jury that, in those circumstances, "the behavior of the procedure administrator tends to increase the probability of a misidentification." The ruling is to be officially released Sept. 27.
"It's a very strong charge, even stronger than what we proposed," said Scheck, who said the instruction reflects the Supreme Court's recognition that it needed "to give clear guidance to the courts below and to law enforcement that failure to warn somebody that the perpetrator might not be in the lineup or array increases error."
The charge draws jurors' attention to "psychological studies," which show that suggesting to a witness that the perpetrator is present or failing to warn that the perpetrator might not be included in the procedure "increases the likelihood that the witness will select one of the individuals in the procedure, even when the perpetrator is not present."
With the Ledbetter ruling, Connecticut joins the growing number of states -- including Massachusetts, New York, Utah and Georgia -- that have reformed their laws on eyewitnesses identification based on lessons drawn from many recent empirical studies.
Experiments performed by forensic psychologist Gary Wells and others cited by the Supreme Court demonstrate that witness confidence in his or her identification may not correlate directly with accuracy. Studies show that witness certainty is susceptible to overt or subconscious cues from the administrator of the identification procedure, observed Justice David M. Borden, who authored the opinion.
When witnesses examine a lineup under the belief that the perpetrator is included, leaving the actual culprit out of the lineup almost always results in mistaken identification, according to one study relied on by the court. Data drawn from thousands of experiments indicates that cautioning a witness that the perpetrator "might or might not be present" significantly decreases false identifications when the culprit is not in the lineup, but has no effect on accurate identifications when the culprit is included, Borden wrote.
Still the Supreme Court was reluctant to invade the autonomy of law enforcement agencies with an exclusionary rule.
"The net effect is to get police to give the warning. Otherwise they'll get the instruction," said Steele.
its really easy to complain (whine) about the FEW that have been exonerated..but let's stop and face reality...the hundreds and thousands that are NOT innocent. Those exonerated are few in number compared to the ones that ARE GUILTY. I know its difficult for some defense attorneys to accept the fact that the client actually did commit the crime (especially the GORTS and PRRPS). Maybe instead of whining about the prosecutors and cops, maybe you should take a look at the people you are representing! Ever think that the client may be lying to you? Wake up!
In order to minimize these mistakes in the future we need to revamp and modernize identification procedures (i.e. no showups, blind lineups where pictures are shown to witness one-at-a-time and not side-by-side by a detective who doesn't know who the suspect is, and lineups where the witness is told that the suspect's photo may not be in the stack). We also need to allow juries to hear expert testimony on the scientific unreliability of eyewitness testimony and eyewitness identification.
Why is it that prosecutors eventually always fall back on the "but the guys are guilty anyway" rationale? And I quote:
"but let's stop and face reality...the hundreds and thousands that are NOT innocent. Those exonerated are few in number compared to the ones that ARE GUILTY. I know its difficult for some defense attorneys to accept the fact that the client actually did commit the crime (especially the GORTS and PRRPS). Maybe instead of whining about the prosecutors and cops, maybe you should take a look at the people you are representing"!
People it's the process that's important. It has to be fair and protect the rights of the Defendant. Especially those that are innocent but equally important those that are guilty as well. If we do not scrupulously defend all defendants' rights we defend none. It is a sad commentary on our system of justice when people believe that justice is only served by putting people in jail. When a person accused of a crime, yes even a guilty one, goes free because the government was put to the task and failed justice is served. Otherwise we are left with tyranny and a police state. Certainly, it is clear from recent events justice left soley in the hands of law enforcement is not justice it is nothing more than vigilantism with badges. Please don't give me the sanctimonious bullshit that only prosecutors do good for the community. We the defenders of liberty make the streets just as safe as you do. We make it safe from an overreaching government, police misconduct, and unequal and uneven application of the law. Both sides perform an integral part of the overall system. But it is adversarial for a reason. It is important to test the evidence, question the facts, and fight for the constitution. For all Defendants...Yes even the guilty ones.
Like the Captain said earlier today, we are Liberty's Last Champion; and don't forget it!!!
mmm fishing
"Liberty's Last Champion?" C'mon. Yes, defense attorneys play an essential role. But, let's stop the white hat crap. The reality is that ya'll are paid to get people off or the best deals you can, not to defend their rights. Prosecutors are the only attorneys in the system who are charged with doing justice.
Get over yourselves.
To the 7:01 blogger: Your are an IDIOT!!! All attorneys get paid paid!!!! He who wears the white hat is the one who does the right thing (regardless of pay). In my opinion very few prosecutors wear that hat, but there are a few, very few....And IDIOT getting people off or getting them a great plea is defending people's rights..what rock did you crawl out from under?????
One more thing....Are we not all in favor of one guilty man going free than an innocent one sitting in jail???? Or are these different times???
Rumpole great blog. Glad to see my federal tax money goes to such antics. Good of you to expose...keep on keeping on...
It is all about statistics. Just like the Broward Sheriffs Office that has been fudging their "cleared cases" by blaming them on dead or incarcerated criminals and getting credit for solving crimes. The Prosecutors and Law Enforcement are just like any business.
my dearest momzer:
i get get a reduction of two retractions for acceptance of responsibility.
and btw, "let he who is without sin cast the first stone". don't make me 404 (b) your ass.
love,
johnnycakes.
Could you be anymore self righteous Sister Bertille? Are you actually egostical and delusional enough to think that what a defense attorney does make the streets safer? Do you think that when you win a motion to suppress that a dishonest cop will be deterred from doing it again because some Judge supressed a rock of cocaine or a statement? the only thing a dishonest cop will do is learn how to lie better for the next time.
Nothing you do has any affect on police corruption at all. The only people in the system who try to stop police corruption are the prosecutors. For whatever legitimate complaints about the sao and KFR, Dade Sao is the most agressive offices in the country when it comes prosecuting dirty cops and Corrections officers. The fact that more police corruption isnt prosecuted is a function of the police blue wall of silence and not because prosecutors are "in on it" as you defense attorneys repeat to yourselves in mantra like fashion so you can rationalize your obnoxious and unethical behavior. For all your griping over the years about Miami's Jump Out boys did all your whining and griping at the pd christmas party change what happened? no it was Federal prosecutors who took a hard case to trial and convicted most of the defendants.
and this nonsense about that you and rumpole spout about prosecutors trying to convict innocent is offensive. do you really think that any asa's want to convict the innocent? dont you think that actually wieghs on the mind of an asa?
despite all I have said, as a prosecutor I do beleive that justice can be done if a guilty man goes free becuase the state didnt prove the case. I respect and realize the tough job that defense counsel have and how important it is. I just cant take the self righteous idiocy that asa's are bad and defense attorneys wear the white hat (who the hell wants to wear a white hat anyway unless you are a pimp?).
he said pimp.
No....PRIMP!!!!
All this talk about "white hats" is a little racially insensitive if you ask me. Is there another analogy for good guys/gals that you brilliant legal eagles can come up with?
I'm just sayin'....
I thought pimps wore orange or green hats.
7:10 blogger:
You make me laugh. Yes, prosecutors get paid. So what's your point? Many get paid less than half (some less than a quarter) of what they could get if they went private.
You missed the entire point of the comment (which was in response to the nonsense about defense attorneys being "liberty's last champion").
The rules of ethics make it clear that defense attorneys are obligated to serve their client's best interests irrespective of what may be just or fair. THAT was the point. I'm not saying there's anything wrong with that (in fact, it's necessary for our system to work). Just saying that the whole business about defense attorneys being champions of liberty, wearing the white hat, etc. is crap.
my hat is like snoopy's sopwith camel leather version. it makes a great impression when interviewing prospective clients.
MY HAT FOLDS OVER MY HEAD LIKE A HORSES SCHLONG.
It seems that the prosecutor who posted the "but they're guilty anyway" post missed a few essential points.
1) The Justice system is not about truth. It is about proof. Of all the lies in the building, the biggest one is the sign that says, "We who labor here seek only the truth." Prosecutors seek a theory pieced together oftentimes by people who were not there. The Defense seeks a reasonable doubt as to whether the theory is true, The Defendant seeks freedom, the Judge seeks a resolution to the case.
2) Has it ever dawned on us that our clients may be lying? Sure. They may be lying, they may be guilty, but even factual guilt USUALLY does not justify the absurdity of the penalty sought. The problem is that Prosecutors often do not understand that this is not a true adversarial system. At times it is, but it is not Defense attorney vs. the victim's attorney. It is supposed to be the Defendant's attorney and Justice's attorney, sometimes in conflict, and sometimes alligned. It matters not what the person has done in their life...40 years can never be justified by someone walking onto someone else's lawn and taking a shovel. When you do this work, you realize that it is rare to meet a good person or a bad person. We are all good, we are all evil, and but for the grace of god, we could be in our clients shoes. There is a huge difference between a bad act and a bad person.
Assistant Public Defender
Hey APD.............you don't really believe that there's always a difference between a bad act and a bad person, do you?
"We are all good, we are all evil, and but for the grace of god, we could be in our clients shoes." Really??????? Are you a felony PD? Are you representing any child molesters, rapists or murderers? If so and you really think that, "but for the grace of God," you "could be in one of your client's shoes," you should seek help. Call me an idealist, but I don't that a good would commit those kind of crimes under any circumstances (don't bother telling me that sometimes good people murder others. That only happens in the rarest of circumstances. Most homicides are totally unjustifiable).
RUMPOLE, don't blog drunk, you sound very angry.
Yes I do represent murderers, rapists, and child molesters, and if I was not clear, I should clarify that those are not the types of situations that I was discussing. I was more referring to the guy who is poor, uneducated, and can't get a job because he has a long record consisting mostly of the more petty felony offenses, and he has no money so he goes onto someone's lawn and takes something, and the State is trying to nail him for eternity. Obviously, the sex crimes are a whole different story, and I agree with you that most homicides are totally unjustifiable, including those committed by the State in the name of justice. And yes, I do firmly believe that there is a difference between a bad act and a bad person.
And I do not think that you are an idealist at all...I think that you are small minded and lack an understanding of the world as it actually works.
LOL. Tell me how there is a difference between a bad act and a bad person who rapes a 6 month old baby?
Your point about ASAs who slam people who commit petty crimes doesn't offend me in the least. But if you really believe that there always is a difference between bad acts and bad people as originally posted, you're the one who has no idea "how the world works."
Yes, good people sometimes do bad things, but there are a slew of crimes that good people would never commit. There ARE bad people whether you want to fact that reality or not. And they do some heinous things.
Tell me something good. Tell me that you love me, yeah
Rumpole, this piece is what the blog should be all about. We must all (defense and prosecution) always remember that not all defendants are guilty.
Ofcourse most are guilty, but there are always those 2% that are
innocent.
This is precisely why I do this work. Because out of every 100 cases there will be at least 1 completely innocent client. I love
when I get those cases, it makes me feel like the most American of
Americans.
What could be better than representing an innocent person charged by the government with committing a crime and walking him/her out the door?
I've been lucky to get a few of those cases and they more than make up for all the nasty pain in the ass clients and cases we normally have to deal with.
As a defense attny I always get the biggest stress when I have a client that I truly believe is innocent. Knowing the process we go through and the fact that what may be in his "best interest" isn't what should happen is often disheartening to me.
While you may say that the process will find an innocent person to be innocent, we all know that's not what happens.
If I have a guilty client and he walks, great, but if he gets nailed, I don't feel bad. However, my greatest fear is that an innocent client get nailed despite my best efforts due to bad eyewitness identification, or worse, due to perjury by police officers or witnesses.
Check this out.....from our favorite bird cage liner the Herald.
It's for those bloggers who question the wisdom of the prosecutors who want to deport Cuban migrant Orlando Bosquete (who was exonerated on sex abuse charges by the Innocence Project). With his criminal history, Maybe he needs to go back to whatever godforsaken hole he crawled from.
http://www.miami.com/mld/miamiherald/news/local/14704520.htm
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