Saturday, February 07, 2009


for Everton Wagstaffe is remaining in prison to await the results of a DNA test, although he can leave anytime he wants because he has served 17 years and is approved for parole. The title of the post links to the NY Times article. 

“I am willing to sacrifice more to prove my innocence,” Mr. Wagstaffe said. “To do otherwise would be a betrayal of the truth and what is right. My time is ripe. I won’t allow myself to be released with these conditions. It will be proven that I had nothing to do with this terrible crime, and then I will walk out of here.”

Rumpole asks, "what would you do?"


We have often viewed the DNA exoneration of death row inmates with this troubling thought:  what about all the wrongful convictions of those people not sentenced to death?  Death penalty cases draw the most attention, not to mention the most of the precious resources needed to exonerate those who were wrongfully convicted. What about the inmate serving ten, or twenty, or thirty years who was also wrongfully convicted? 

 Most of wrongful conviction  cases arise out of the use of eyewitness identification, which,  for those of you who have read "The Seven Sins Of Memory" know is about as reliable as  CIA intelligence on WMDs in Iraq.  

Exoneration came way too late for Timothy Cole,  who died in prison before he could be exonerated. Here is the link to the NPR article. Listen to the report. It is heart rendering. This young man was in high school with his whole life ahead of him, when a wayward accusation of rape, with no supporting physical evidence, overcame Mr. Cole's  strong alibi in a Texas courtroom in 1985. Mr. Cole was black. He was with friends and family when the rape occurred. The victim was white.  So was the Texas jury, and that was that. 

As Timothy  Cole sat weeping in his jail cell, the real rapist sat in the cell across from him, listening to the heart rendering cries of a young man whose future had just been wiped out. 

Timothy Cole,  who suffered from severe asthma, died in prison. DNA has now exonerated him completely. Listen to the NPR report and how Cole's attorneys could not get one Judge in Lubbock Texas to even re-examine the case after DNA cleared him, and the real rapist confessed. 

Some great justice system we have.  "The envy of the whole world"  our politicians like to brag. Yeah. 

See You Monday. 


Anonymous said...

Until prosecutors can be sued and
held responsible for these intentional acts on innocent people, nothing will change.

They stand behind their immunity and claim they had a good faith basis to proceed and nothing changes.

Anonymous said...

Ivan, for the good of the Circuit abandon the race. Your stock will rise for a future run.

Phil R said...

Not so 9:30. Change starts at the top. When the State Attorney makes is very very clear to every employee that job one is not prosecuting the innocent, then tragedies like these are less likely to happen. Janet Reno drummed that into her prosecutors, and the ethics of her office and her prosecutors were rarely questioned.


Alex Michaels was amazing at the Hard Rock last night:

"So they passed the bail out tonight. 780 Billion of our money. Dis is bullsheeet. And deese Banks. They ruined the economy and you know what? They just took our bailout money and gave themselves 18 billion in bonuses. And most of them failed. What are the bonuses going to be when they make money? 18 Billion for wrecking the economy. You know what dis is?"


Anonymous said...

Gotta agree with Phil 100%. Under Reno, prosecuting an innocent defendant was a sure way to lose your job. Reno & Co. placed a big emphasis on making cases inolving the innocent were nolle prossed ASAP. In fact, I remember being told on my first day at the SAO that our first duty as prosecutors was to make sure that the innocent are not charged, our second duty was to make sure that the guilty were convicted and appropriately punished.

While that mentality has, unfortunately, slacked somewhat under Rundle, the Miami-Dade SAO cannot be accused of taking a "convict at all costs" attitude, or the position of Broward State Attorney Mike Satz that a jury should make the determination of innocence.

eyeonsobe said...


Joel Denaro holding court at the hot new steakhouse- Meat Market at 915 Lincoln Road.

A few hottie pDs partying at Louis at the Gansevoort South.

Kenny W sitting at Cozy bemoaning the closing of Touch to anyone who would listen.

Anonymous said...

And when there IS dna evidence proving guilt, the Defense claims not enough was taken.

Anonymous said...

Certainly, there are prosecutors who are overzealous. But, the suggestion that the prosecutors intentionally prosecutor innocent people is assinine. They have every motivation in the world to get the right person, especially in the more serious cases. They aren't perfect; many mistakes are made. But nothing will change until there's an honest discussion without all of the silly rhetoric.


Anonymous said...

BTDT--you are correct as to the majority of prosecutors. But as with any profession--and like those few sad-ass defense attorneys who have no qualms about lying to the Court--there are a few who take the "convict at any costs" attitude. Look at the Broward SAO's policy of letting a jury find an innocent defendant not guilty instead of nolle prossing a case. And Texas is notorious for certain prosecutors who convict first and ask questions later.

There is a big difference between an honest mistake and prosecuting someone who you legitimately believe is innocent.

Anonymous said...

Sometimes, prosecutors who are unable to face the fact that they made a huge mistake convicting an innocent person will bury thir head in the sand and do everything possible to prove that they were right and that they got the right person, even if the person was innocent.

Anonymous said...

"BTDT" I don't usually agree with your comments, but this time you could not be more on point. 9:30, you wear your ignorance like a halo. If you have ever met a prosecutor whom you felt was simply trying to pad his statistics or worse at the expense of the innocent, you should have reported him or her to the bar, published his or her name in any forum available, and by all means report him to his or her superiors at the SAO. I have been at this for a while and I have never seen a prosecutor whom I felt was pursuing the prosecution of an innocent defendant; if I had seen such a thing I would have done what I just suggested you do. I have personally heard both Janet Reno and Katherine Fernandez Rundle say that we, the SAO do not prosecute the innocent. Your statement, which ignores the policy considerations of protecting prosecutors from civil liabilty, doesn't add anything to the discussion of a serious problem.

Anonymous said...

What I really want is an answer to this question - why do prosecutors consisently fight against DNA testing? As a former prosecutor and current defense attorney handling capital cases, some in postconviction, it never ceases to amaze me how they will argue against testing DNA. Is it b/c they are jaded and think the defendants are all guilty? Is it b/c they believe they never could've missed something and convicted an innocent person? I don't really believe it's b/c they are evil or heartless, so there has to be another reason. Someone please explain it to me....

Anonymous said...

I agree that innocent people dying in prison is "silly rhetoric". What was I thinking

Anonymous said...


Have you died in prison for a false allegation. Doubt you ever "been there" or "did that"

Anonymous said...

You guys love to cry and cry but never give any solutions to the problems of our system. It is the best in the world and it does have problems....what do you suggest? Don't ever prosecute a rapist or robber when a victim id's the guy in a lineup or showup? Prosecutors have the hardest job around and they do the best that they can.....much harder than crying that your defendants are innocent or deserve a good plea just because they pay you money....prosecutors should be sued for doing their job!! Then victims should be able to sue dirtbag defense attorneys who get their clients off even when they know they are guilty (which happens WAY more and you know it).

Anonymous said...

To Saturday at 10:10 am.When you refer to "the good of the circuit" who do you mean? The power structure that has been running the Courts here since the seventies?

For those of us who have been watching from the sidelines for decades,the goal of a Cuban American chief judge is something that will eventually be achieved.In the process however make sure that the so called "gatekeepers" do not become so discouraged with the old boy politics that they are no longer interested in maintaining order and decide to let the election market run free

Make sure that in your smug grab for presumed "entitled" and "hereditary" privilege you do not alienate those who may still be trying to help and thereby open pandora's box.

FAKE JAY white said...

No Fans will cheer
No cold beer

no parking lot food
I'm just not in the mood

for another sunday
all by myself

no football to watch

the months stretch empty
no end in sight

just one time more
before I start to frown

I'd like to hear

Anonymous said...

The defense should be able to bring in expert witness on eyewitness identification problems and faulty memory issues so that the jury can see that eyewitness ID is far from foolproof and is fraught with errors.

We should also get rid of political correctness in the law and again require corroboration by physical evidence of any allegations of violent personal crimes specially those where lying is common such as sexual battery, child abuse, domestic violence and personal or business disputes that result in criminal charges.

Anonymous said...


Wrong!!! There are plenty of prosecutors who knowingly go after the innocent. I know of this first hand. The real perpetrator who admitted participation in a particular crime was allowed to be the state's witness, most likely due to family connections to higher ups at BSO. Instead, an innocent bystander who was not a participant was used as a scape goat and was charged with a third degree felony despite no corroboration in the sworn statement made by the state's own witness. The case has dragged on despite there being no evidence of guilt. Guilty before innocent is how it is in dirty Broweird. It is probably better to let it go rather than risk retaliation. The system is a complete cesspool of vile vermin. I have no respect for what they do and the harm they cause. Good luck if you ever get arrested in Broweird--especially if you're poor and a minority.

Anonymous said...

Anonymous asked me, "BTDT, have you ever died in prison for a false allegation."

Uh, isn't the answer to that obvious? No, I haven't died in prison before. As the joke goes, I haven't been autopsied either.

It's this kind of silly posturing that prevents real discussions from taking place. As I said in my originally post (4:05, you must have read it too quickly), there are some overzealous prosecutors. Those that show little regard for the innocent don't understand their jobs. More importantly, they're corrupt and immoral and should be disbarred and imprisoned for false imprisonment. I can't be more clear than that.

The percentage of prosecutors who fit in this category, however, is miniscule, well under 1%. The immunity provided by law is necessary to protect the remainder.

Again, the foolish stereotyping of prosecutors as overzealous does nothing be polarize the legal community. If we're going to have an honest discussion and achieve change, we have to recognize that prosecutors, like cops, are necessary and that the vast majority of them are good people. You can't negotiate change if you're intellectually dishonest about the issues or insist on abusing the other side.


Anonymous said...

It never ceases to amaze me that some of you (the same folks who decry other forms of stereotyping like racism and who defend the worst of the worst like child molestors, rapists and murderers), are so quick to malign an entire group (prosecutors) or entire office (Broward SAO). You demand proof beyond a reasonable doubt for your clients, but hammer prosecutors on proof of affiliation. That's intellectually dishonest and hypocritical. And, prevents discussion (which is worse than achieving nothing).

If you can prove that a prosecutor intentionally prosecuted or is prosecuting an innocent person, bring forth the evidence. Take him or her to the Bar. PLEASE. There's no space for him or her in our society. It would send a great message to the one or two others who would do the same thing. Then, the prosecutor can defend himself (hire someone like you) and have his or her opportunity in court. Isn't that how it's supposed to work? Whining here does nothing.


Anonymous said...

What is meant by “for the good of the Circuit?” Why direct the comment at Ivan Fernandez? Why not Joel Brown? Unavoidable logic leads one to the conclusion that the author of this absurd comment is hinting at two issues for why the Ivan Fernandez being in the race for Chief Judge of this Circuit is detrimental to “the Circuit.” The first, preserving the entrenched hypocrisy in which only the “socially” affluent can approach the Chief judge with an issue of concern, get an audience with his holiness, and obtain some results. Second, but more disturbing is the ethnic import of the statement, a clash between a Hispanic and an Anglo. There are those who will disagree with my observation of the import of the statement, but interpretation of a statement or an event is dictated by the perception of the reader or audience observing an event unfold. Ultimately, the community will judge the results of the race for Chief Judge and I am afraid find that it was the composition of the judiciary that dictated the results.

I know there are those who will take issue, if not offense with my observations. I call them as I see them, for which I have never apologized. So to those who take offense, I suggest they share in the experiences of the community for only then can they ever appreciate the perception and consequently the point of views of harbored by many in our community about how the system works and who pulls the strings. The sentiments are rubbed to the surface when an irresponsible statement like “for the good of the Circuit” is penned within the context is which it is meant.

Anonymous said...

L&L Twins Associate out on the town last night-soooo hot!!!!

Anonymous said...

Yo, Sunday, February 08, 2009 11:02:00 AM

Take some prozac.

Anonymous said...


For the second time in a week, a Federal Judge has used the word:


in his opinion.

What does it mean and use it in a sentence please?!

Anonymous said...

How odd that critical social commentary draws playground-like taunts instead of reflection or reasoned critique. 2:41 p.m., you remind me of a court stenographer who makes faces at my questions under the misimpression that fear of embarassment or social disapproval will stop my quest to unearth uncomfortable answers.

Anonymous said...

BTDT, I agree with you in principle. But I think that the number of prosecutors hell bent on getting a conviction at all costs is, in certain offices, higher than 1%. A friend of mine used to do criminal defense in Texas and told me a significant number of prosecutors there took the above attitude. I've heard similar stories from a colleague of mine who was an assistant AG in Georgia.

As for the Broward SAO, a fish begins to stink from the head first. Michael Satz's no-nolle pros policy (let the jury decide that an innocent defendant is not guilty) speaks volumes. And it is well-known that those bold ASAs who dare to show some cojones to stand up to the totalitarian brass are ultimately shown the door.

Anonymous said...


Anonymous said...

Look who made No. 1

7 People Who Never Gave Up (But Absolutely Should Have)


Anonymous said...

DUBITANTE: The rarest category of separate opinions are those issued “dubitante,” a notation expressing serious doubt about the correctness of the decision. Only one such opinion has been issued in the Florida Supreme Court’s history. With this sparse usage, it still is not entirely clear in Florida whether a dubitante opinion should be regarded as a type of concurrence or dissent or something else. Because of the still uncertain nature of dubitante opinions in Florida, the better practice would be for authors to indicate whether they intend to concur, to dissent, or neither to concur nor to dissent. THE OPERATION AND JURISDICTION OF THE FLORIDA SUPREME COURT.

Anonymous said...

BTDT - Texas is assinine like your
comments. You can say they act in
good faith - but if you read that
story of the kid at Texas Tech its hard to say they shouldn't have known he was innocent. Killer had
very little in common with Defendant besides being black and
there was no physical evidence.
Think the authorities investigated
the person whom the defense
claimed was the real killer during
the trial. Think not Mr. Silly.

Anonymous said...

5:47 - Ignorance as a halo is actually believing that all prosecutors do the right thing and
would never knowingly convict someone who they think could be innocent. This is Amerikkka not
Utopia. I am not saying they are
all like that - but as is the case with every profession - there are good prosecutors and bad prosecutors. Wake up to the reality of our system.

Anonymous said...

Sunday @ 6:22, well said!

batman said...

In all of my years in the criminal justice system I have never observed or even heard of an Ass't State Attorney prosecuting a person they know to be innocent. If such a thing took place that ASA should be not only be fired but disbarred. It is a direct violation of the oath of every attorney.

Now that is not to say that I have not experienced or seen an AUSA continue the prosecution of an innocent person. I have. That person still works for the US Attorney's Office. I have no idea how she has survived, but the fact that she is still there is a function of the universal disdain in which she is held.

Anonymous said...

4:32.....again, you show your ignorance. I'm talking about prosecutors as a group. You're pointing to a possible exception to the rule. Again, stereotyping prosecutors as people who enjoy convicting the innocent is as ridiculous as your retort.