Prosecuting innocence: Louis C. Taylor is about to be freed!

Believe it or not, all sorts of innocent people end up in prison and on death row - especially in this state, it seems.  I heard from Arizona prisoner Eddie Sanders not long ago; he's doing life for the rape and murder of an elderly woman in Tucson at a time when there was a rash of such assaults, and can't seem to get anyone to listen to his defense, which he has tried to wage himself - check out his heartbreaking plea below. I think he was an easy  homeless suspect with a checkered past when he was arrested and prosecuted...his case was in Pima County, too, like Louis Taylor's was.

I am not at all impressed with Barbara LaWall, frankly. Look at this, for example.

I don't know how to begin to help this guy - the AZ Justice Project apparently hasn't decided to pick up his case; I think he applied for their help. If you have any ideas or wish to spend some time helping Eddie get a reasonably fair shake, please drop Peggy Plews a note at arizonaprisonwatch@gmail.com...

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

----now for the POST at HAND: Louis Taylor is about to be freed under a new plea agreement---

 louis c. taylor

This guy was only sixteen when we locked him away for 28 life sentences 40 years ago - he's just now getting his day in court. This kind of thing happens far too often - thank God for the Arizona Justice Project, as well as the Arizona Daily Star for paying attention. We wouldn't need them so badly if our cops and prosecutors were more interested in justice and public safety than in convictions and private prisons in this state, and if they took responsibility for their mistakes a little more often...

--------------------from CBS NEWS 60 minutes-----------

 Historical photographs provided by Arizona Historical Society

 via CBS News 60 Minutes

Arizona's Pioneer Hotel fire re-examined

CBS NEWS 60 minutes
 March 31, 2013 7:45 PM

Watch the Segment »

Steve Kroft revisits the case of Louis Taylor, who may have been falsely accused and imprisoned for decades for setting a hotel fire in Tucson that killed 28.

Web Extras

• Arizona's Pioneer Hotel fire re-examined
• Attorney: Pioneer Hotel was a "fire trap"
• Arson or accidental fire: How can you tell?

The following script is from "The Pioneer Hotel Fire" which aired on March 31, 2013. Steve Kroft is the correspondent. James Jacoby and Michael Karzis, producers.

60 Minutes Web Extra

Arson or accidental fire: How can you tell? »

The week before Christmas, back in 1970, an historic fire swept through an Arizona landmark, the Pioneer Hotel in downtown Tucson. Twenty-eight people were killed that night, some of whom were forced to jump to their deaths to avoid being burned alive in their rooms. It was front page news all over the country, and the following morning, a 16-year-old boy named Louis Taylor was charged with setting the fire and later convicted of 28 counts of murder.

The evidence was weak, and even the trial judge later admitted he would not have voted to convict. We first looked into the case back in 2002, along with Court TV, and found evidence that the 16-year-old had been railroaded; a convenient suspect for police and prosecutors eager to resolve the city's worst disaster. Taylor is still serving his life sentence, but new developments in fire science and new testimony from a key witness, may now change that and shed new light on a tragedy that's haunted Tucson for nearly 42 years.

Today, the Pioneer is a non-descript office building near the center of town. But behind the precast concrete slabs, you can still see the bones of the old hotel, built when Tucson was still a frontier outpost, and on December 19th 1970, it was still the heart of the city.

[Unidentified Man #1: Somebody's yelling, "Fire," over near the Pioneer Hotel.

Unidentified Man #2: Engine 1, 2, 3, Pioneer Hotel. Fire reported.]

When the first alarm sounded the hotel was packed with Christmas revelers. No one had noticed smoke on the upper floors. And by the time firemen arrived, it was already too late.

The Pioneer was a death trap: no sprinkler system, fire exits padlocked shut for security reasons, and the tallest ladder the fire department had reached only between the fourth and fifth floors.

Trapped hotel guests could be seen at the windows and on ledges. Some people tied sheets together and climbed to safety; others tossed mattresses out the window and died trying to land on them. As rescue teams fought their way up the stairwells, they encountered 16-year-old Louis Taylor on the third floor landing. Police officer Bill Briamonte put the boy to work.

Bill Briamonte: I said, "Come with me. There's a fire in this building. Start banging on doors," and I sent him to the left, and I went to the right.

To many fireman, Louis Taylor was a hero that night. But the police weren't looking for a hero. While the fire was still smoldering, and before the fire department even had time to begin an investigation into the cause, the police department decided it had the answer: Louis Taylor. One officer who had been with the boy during the fire, went up to thank him a few hours later at police headquarters only to be told to stay away - that Taylor had set the fire. The officer, Klaus Bergman, said he was dumbfounded.

Klaus Bergman: I don't know how in God's name somebody could declare a fire to be an arson, and arrest and book somebody for setting the fire before the fire is out.


Louis Taylor had voluntarily gone to police headquarters as a witness, but after an all-night interrogation by eight different police officers without a lawyer or a guardian present, Taylor had gone from cooperative witness to prime suspect.

David Smith: My conclusion was that Louis Taylor was evasive, and that he was involved in the incident.

Juvenile Detective David Smith was the last police officer to interrogate Louis Taylor. He said the boy was seen near the place where the fire started, had five partial packs of matches on him, and was unable to give a legitimate reason for being in the hotel. We interviewed Detective Smith back in 2002.

David Smith: I asked him, "Louis, did you set this fire?" And he said, "No, I didn't want to kill those people." Immediately there was a look of-- one of those looks of "I wished I hadn't have said that," or "I didn't mean to say that."


Steve Kroft: That doesn't sound like an admission.

David Smith: It certainly isn't a confession.

Smith says Taylor told him something else that would provide the prosecution with a motive for Taylor setting the fire.

David Smith: He said, "You know when you go into a hotel, and you take change of your pockets and your wallet, and you lay it on the dresser?" And he said, "That's why they set the fire, so that they could steal from the rooms when people would panic and run."

Steve Kroft: Did you know that Sergeant Gastaway, one of the officers who had questioned Louis Taylor before you, reported that at about 4:15, he went in and told Louis, "You set that fire so you could rob some of the guest rooms, didn't you?"

David Smith: No.

Steve Kroft: You didn't know that?

David Smith: No.

Steve Kroft: So you don't know if that's the first time that Louis Taylor ever heard that theory?

David Smith: No, I--I--I don't.

Not one word of Louis Taylor's interrogation was recorded, and if police officers took notes, they were never produced. Yet based on his inconsistent statements and circumstantial evidence -- and the since discredited testimony of two jailhouse snitches -- Taylor was charged with 28 counts of murder and convicted by an all-white jury, sentenced to life in prison. And that is where we found him a decade ago when we first began looking into this case with Court TV. He was 47 years old.

[Unidentified voice: Did you set that fire that night Louis?

Louis Taylor: No I did not. The evidence was so, you know, so frivolous that I thought for a while that maybe, you know, they'd maybe find me not guilty. But unfortunately I fell into the cracks.]

In a brief phone conversation, Taylor said he'd gone to the hotel hoping to hustle food and free drinks.
His mistake, he said, was trusting the police.

Louis Taylor: I guess they just--they had me, and they said, "Well, you know, just we'll try to get a conviction." So they did.

At the time we reported that important information that might have helped Louis Taylor was never heard by a jury and never investigated by the police: like this letter from the assistant fire chief, which acknowledged a number of suspicious fires at the Pioneer Hotel in the months leading up to the tragedy, along with the description of a suspect that did not match Louis Taylor. Detective Smith said he didn't know anything about it.

Steve Kroft: But you didn't turn up in your investigation the fact that there had been previous fires at this hotel?

David Smith: No.

Steve Kroft: And the fact that they had a description of somebody who had been setting these fires?

David Smith: No. I can guarantee you that if I knew that, then that's something I would have followed up on.

The description was much closer to a serial arsonist named Donald Anthony, who left the state the day after the Pioneer fire and was never questioned.


Steve Kroft: Did it ever dawn on you that perhaps that Mr. Anthony might have something to do with the Pioneer fire?

David: Don wasn't a suspect in the Pioneer. The fact is, that there was never any information of any type that was received indicating that anybody else but Louis Taylor was there acting suspiciously.


When our first story about Louis Taylor aired back in 2002, it attracted the attention of the Arizona Justice Project, a nonprofit legal organization that helps people it believes have been wrongfully convicted. The group took on the case and after a decade of work it has discovered some striking new evidence that could get Louis Taylor out of prison.

Steve Kroft: Do you think Louis Taylor set the Pioneer Hotel fire?

Ed Novak: No, I don't.

Steve Kroft: You think he was railroaded?

Ed Novak: Yes.

Edward Novak, a prominent Arizona attorney, is now leading Louis Taylor's defense team which is made up of volunteer lawyers, students and law professors from the Arizona Justice Project. They've dug into old court records and revisited the testimony of key witnesses like Cy Holmes, the original fire investigator, who testified that the fire had been intentionally set.

Steve Kroft: How important was that testimony at the trial?

Ed Novak: Critical, absolutely critical.

[Bailiff in Holmes deposition: Do you swear or affirm to speak the truth, the whole truth, and nothing but the truth?

Cy Holmes: I do.

Bailiff in Holmes deposition: Thank you.]

Just five months ago, Novak conducted a sworn court deposition of Holmes and got him to reveal some startling new information. For the first time, Holmes said that he did a quick-walk through of the hotel 10 days after the blaze, then told the city council that he'd already reached some preliminary conclusions about the type of person who set the place on fire.

[Cy Holmes (Deposition): I had indicated that I felt that the culprit was probably black and that he was probably 18. ]

Steve Kroft: What was your reaction when he gave this testimony?

Ed Novak: I was trying to maintain my composure so that Holmes wouldn't know that he'd said something that really startled me.

Steve Kroft: How did he determine that it was a young man of color?

Ed Novak: I asked him that.

[Cy Holmes: Blacks at that point, their background was the use of fire for beneficial purposes. In other words, they were used to clearing lands and doing cleanup work and things like that and fire was a tool. So it was just a tool for them. In other words, you're comfortable with it. And if they get mad at somebody, the first thing they do is use something they're comfortable with. Fire was one of them.]

That new deposition has destroyed the credibility of a key witness against Louis Taylor. And, in fact, the very idea that the Pioneer Hotel Fire was even an arson is now under serious challenge, because the science of fire investigation has changed dramatically over the past 40 years. The Arizona Justice Project put together a panel of the country's top five fire experts and had them evaluate the evidence and the testimony in the Pioneer case records, using today's science.

John Lentini was one of them. He has conducted more than 2,000 fire investigations and has been at the center of the most important developments in fire investigations over the past 30 years. He took this case on for free.


Steve Kroft: What was the state of fire science 40 years ago?

John Lentini: Terrible. Particularly when it-- as it related to fire investigation.

Steve Kroft: What was your reaction when you looked at all the material?

John Lentini: Just another false accusation of arson. It's a shame. It has been very common for people to start with the proposition that the fire's set and if they can't find an innocent cause for it then they say, well, somebody must have set it. That presumes that we're good enough fire investigators to find the cause of every fire and that's simply not true.

Steve Kroft: What caused the Pioneer fire?

John Lentini: Undetermined.

Steve Kroft: Undetermined.

John Lentini: Undetermined. Could have been a cigarette. It could have been an overhead light.

Steve Kroft: Did you find any evidence of arson?

John Lentini: No.

Ed Novak: You can't have a murder conviction based on arson if there was no arson. Take away the arson, there's no murder.

Based on the new evidence and testimony, Ed Novak and the Arizona Justice Project petitioned the county prosecutor and the court to vacate Louis Taylor's murder conviction, release him from prison, and conduct a new trial.

The current prosecutor, Barbara LaWall, then commissioned the Tucson Fire Department to do its own reinvestigation of the Pioneer fire using the latest science. It, too, concluded that the cause of the fire should now be ruled undetermined.

Steve Kroft: So the report that she requested--

Ed Novak: Didn't back her up.

Steve Kroft: Not only didn't back her up, it solidified the defense's case?

Ed Novak: Yes.

Yet in spite of the fire department's report and the embarrassing testimony of the original fire investigator, the county prosecutor is holding her ground. She offered to release Louis Taylor from prison, but only if he would plead no contest to arson and murder charges.

Steve Kroft: Not much of a deal?

Ed Novak: It's not a deal. It stinks.

Steve Kroft: All to protect a conviction?

Ed Novak: Yes, exactly. I'm not sure I can do it.

Steve Kroft; What do you mean you're not sure you can do it?

Ed Novak: I'm not sure I can stand in the courtroom and let a prosecutor tell a judge that there's sufficient evidence for a judge to accept a plea of no contest when I don't think a crime occurred.
We asked an interview with County Prosecutor Barbara LaWall, but her office declined our request. So we decided to approach her on the street.

Steve Kroft: Ms. LaWall? Steve Kroft from "60 Minutes."

Barbara LaWall: How do you do Steve?

Steve Kroft: How you doing? I just have a couple of questions to ask you about the Louis Taylor case. What about this report from the Fire Department that you requested...


Barbara LaWall: Well you know --

Steve Kroft: That came back and said that there's no evidence that this fire was intentionally set?
 
Barbara LaWall: I don't believe that that's exactly what the report said --

Steve Kroft: No conclusive evidence.

Barbara LaWall: But they said it was undetermined, but you know, we have a hearing, this is a pending prosecution. And it's not the practice of this office to speak about pending prosecutions

Steve Kroft: But you've got somebody who's in prison for arson and murder and now it's not clear whether it was even an arson.

Barbara LaWall: Well nobody can say for sure whether it was or whether it wasn't.

Steve Kroft: The law says that if you're going to convict somebody of arson you have to have conclusive proof that it was in fact arson.

Barbara LaWall: Steve! We did, 42 years ago! 42 years ago, 12 members of this community made that determination. That's not what this legal issue is about right now.

We also asked the prosecutor about the controversial racial views of fire investigator Cy Holmes.

Steve Kroft: What about Cy Holmes? I've seen that deposition.

Barbara LaWall: Cy Holmes can make a determination as to whether or not it's arson or not arson.

Steve Kroft: He said some pretty embarrassing things.

Barbara LaWall: Yes, he did.

Ms. LaWall says the fate of Louis Taylor should be decided by the court. And she says just because the latest fire science finds the cause of the Pioneer fire to be undetermined, doesn't rule out the possibility of arson.

Ed Novak: And the last time I checked we don't convict people on a possibility. We convict people on proof beyond a reasonable doubt -- which you would never get in a retrial of this case.

It's now almost certain that the retrial will never happen. Louis Taylor, who is now 58 and has spent more than two-thirds of his life in prison, decided this past week to accept the prosecutor's deal.


On Tuesday, he is expected to plead no-contest to the charges in exchange for his freedom. Taylor told his lawyers that after maintaining his principles for 42 years, he is tired, uncertain of the appeal process, and wants to begin living the rest of his life as a free man. He still maintains his innocence.

Prosecuting Innocence: Avenging shaken babies or breaking more hearts?

The assumption that criminals in prison get what's coming to them is deep, and I get flack for helping people convicted of crimes against children escape their due punishment - that being the "justice" doled out to them by other prisoners - by helping them get protective custody. First of all, most pedophiles are already in protective custody of some kind and don't need me to help them stay safe behind bars. Second of all, they were sentenced to prison, not perpetual rape, repeated beatings, or execution on the yards. 

There's a reason we don't have that kind of torture as part of our penalty system, though, even when it would seem most just to order it for a man who rapes an infant and leaves the child to die, for example. It's not only dehumanizes prisoners - the victims as well as their punishers - it dehumanizes the rest of us who condone it.

Furthermore, as suggested by this article below, the reality is that the public as well as other prisoners don't know what really happened in these people's lives based on the media reports or even a police report of their crimes. Just because someone has a conviction on paper and is doing time in prison, doesn't mean they're guilty of what the state says they did. Cops and judges and juries can be wrong - they make plenty of mistakes, in fact. National estimates on exonerations from death row suggest that as many as 10% of all serious convictions are wrongful. So when we condemn the "guilty bastards" to repeated brutality by justifying or ignoring prison violence as retribution for one's crimes or perceived crimes, we condemn the innocent to the same as well.

I'm impressed by the AZ Republic's reporting of late - what follows is a good article about a wrongful conviction that was overturned. I hope someday they take up the case of Courtney Bisbee, too...

Above: Wrongfully convicted Courtney Bisbee and her daughter, Taylor Lee.
Even though her prosecution was initiated under Andrew Thomas' office, the current Maricopa County Attorney, Bill Montgomery, refuses to hear new evidence in her case - the recanted testimony of a key witness, who is the brother of the "victim." 

Courtney is a little over half way through an 11-year prison term for a child molestation that never occurred. 

Support her quest for justice here:

Help Free an Innocent Woman.

------from the AZ Republic-----

New doubts in 'shaken baby' fatalities

Some in Arizona see convictions overturned

Richard Ruelas

Sept. 15, 2012 10:53 PM
The Republic | azcentral.com

Drayton Witt kept insisting he had nothing to do with the death of his 4-month-old baby. He said it the night he brought the near-comatose infant into the emergency room on June 1, 2000. He said it during his sentencing, following his conviction on murdering the boy by shaking him. And he was still proclaiming his innocence as he started serving his 20-year sentence in 2002.

His lamentations didn't gain legal and medical weight until 2012. The Arizona Justice Project, a volunteer group of attorneys, filed a motion to toss out his murder conviction based on the evolving science around what was known as shaken-baby syndrome. The state did not file an argument in response. Witt was released on May 31, becoming the second Arizonan in the last two years to see his guilty verdict in a shaken-baby case erased.

'Shaken baby' diagnosis disputed | More on child abuse


Among those who helped secure Witt's freedom was the 97-year-old British pediatric neurosurgeon who, in 1971, first identified the trio of telltale symptoms that became accepted as proof that a baby had been violently shaken. Attorneys also secured a sworn statement from the medical examiner who originally ruled the baby died from being shaken. His revised conclusion was that the baby died of a disease.

Fifteen months earlier, in February 2011, a Buckeye man named Armando Castillo, 42, had his conviction overturned in the 1998 death of a toddler. Like Witt, Castillo maintained his innocence throughout. And, like Witt, Castillo would be imprisoned a long time before attorneys found medical evidence to back up his story.

In both cases, judges ruled that a jury would likely acquit each man after hearing the new medical understanding of the evidence.

The overturned convictions didn't erase the charges, just sent the cases back for a possible retrial. Prosecutors decided to keep pursuing murder charges in both cases. Castillo pleaded guilty to a reduced charge to avoid the risk of a retrial. Witt's murder trial is scheduled for 2013.

Maricopa County Attorney Bill Montgomery said that his office still believes that Witt was responsible for the death of the 4-month-old baby boy. "Obviously, we believed it the first time around," Montgomery said.

He said prosecutors now focus more on proving that a child was injured, not necessarily that he was shaken. Montgomery said speculation that suspected abused children died from diseases was just defense-attorney theories.

"I think we're still looking at cases where children were injured," Montgomery said. "How we prove that may change."

That's because a growing body of medical and legal experts, nationally and internationally, are casting doubt on what became known as shaken-baby syndrome. Pediatric neurologists and forensic pathologists say the long-held triad of symptoms -- bleeding on the brain, swelling of the brain and bleeding in the eyes -- thought to indicate a baby was violently and intentionally shaken could also be caused by a host of diseases, including infections.

DePaul University law professor Deborah Tuerkheimer, who wrote a 2009 study on the use of shaken-baby syndrome in courtrooms, said the easily spotted symptoms became not only a medical diagnosis but also a legal tool adopted quickly and used convincingly in courtrooms nationwide.

Physicians would testify that a shaken child would become unresponsive or go limp almost immediately after the abuse. So the last adult with the child would be the primary suspect. And the shaken-baby diagnosis also provided a motive: a frustrated caregiver looking to quiet a crying child.

Some shaken-baby cases included other signs of violent abuse, such as broken bones, bruises or fractures. But others, like in Witt's case, had no outward signs of injuries. Cases were built solely on the symptoms of shaken-baby syndrome.

"(The syndrome) did all of the work," Tuerkheimer said. Jurors would hear the experts testify with certainty and couple that with an "inclination to want to convict and hold someone responsible for such an awful outcome," she said.

In the last half of the 1990s, the Maricopa County Attorney's Office handled shaken-baby cases at the rate of two a week. During one stretch, it had a conviction rate, in non-fatal cases, of 84 percent.
Tuerkheimer said many of the defendants were convicted in emotional trials, while others took plea deals because they saw little chance of winning. She said there's no way to know whether the Witt and Castillo cases are isolated wrongful convictions or signs of a systemic flaw that will produce hundreds of reversals.

"No one has any sense of the numbers here," Tuerkheimer said.

Witt knows he is No. 2, the second shaken-baby conviction in Arizona to be vacated. But he figures the pattern that police and prosecutors followed in his case was repeated many more times.
"The system is flawed," he said. "I'm sure there's a lot of people like that."

* * *

Maria Holt's baby son, Steven, was just shy of being 5 months old on June 1, 2000. Dressed in a blue and white onesie, he slept in his car seat as Witt dropped Holt off for her evening shift as a waitress at the Bill Johnson's Big Apple restaurant in north Phoenix.

Witt, then 18, and Holt, then 20, had been boyfriend and girlfriend since they'd met two years before, but Steven had been conceived with another man during a breakup. Regardless, Witt saw the baby as his son; he was in the delivery room when Steven was born, and the child carried his last name. It was routine for Witt to care for Steven when Holt was at work; she often called home between tables to check in.

During one call around 8 or 9 that night, Witt told Holt he thought Steven might have had another seizure. His eyes appeared odd, Witt said, and he was fussy. Holt said to come get her at the restaurant and they would take the baby to the emergency room.

Steven had been a sickly baby, in and out of the hospital three times during his short life, including a six-day stay at Phoenix Children's Hospital just a month earlier when doctors couldn't get a bead on what was causing the baby's vomiting and seizures.

On this night, the boy stopped breathing during the 6-mile drive from the restaurant to Paradise Valley Hospital. Witt pulled over and climbed into the back seat to perform CPR while Holt took the wheel. At the hospital, doctors worked to get Steven breathing again. Then the baby's heart stopped. It took them about 30 minutes to stabilize him, after which he was flown to Phoenix Children's Hospital.

A doctor at Paradise Valley Hospital, in a report, diagnosed the cardiac arrest and said the baby was suffering from dehydration and possibly sepsis, a severe reaction to bacteria. He also expressed concern about brain injury caused by dehydration, too much acid in the blood, and not enough oxygen. There was no mention of suspected abuse.

Witt and Holt left Paradise Valley Hospital to drive to Phoenix Children's. Expecting another long hospital stay, they stopped by their home to pick up extra clothes.

* * *

The idea that violent shaking of infants could cause brain injury was first proposed in a medical-journal article in 1971. Not only did it gain acceptance in the medical community over the next two decades, it also seeped into popular culture. Child-abuse prevention groups started awareness campaigns; the phrase "shaken-baby syndrome" entered the Random House dictionary in 1996.

By 2001, the American Academy of Pediatrics produced a position paper on shaken-baby syndrome, saying that doctors should presume abuse in any baby under a year old who had head injuries absent obvious trauma, such as a car accident. The paper, published in the journal Pediatrics, said the "constellation" of injuries in a shaken baby could not result from an accidental trip or fall.

The article also offered a psychological profile of adults who shake a child. "Such shaking often results from tension and frustration generated by a baby's crying or irritability," the journal article said, "yet crying is not a legal justification for such violence." It went on to warn that shaken babies were often misdiagnosed, meaning doctors needed to be extremely vigilant to spot them.

After Steven arrived at Phoenix Children's Hospital, a doctor who evaluated him wrote that the baby had no bruising or skull deformities, but showed some bleeding in the eyes. The doctor also noted that "the infant is flaccid. There is no response to pain."

At 3 a.m., a pediatrician wrote on a progress report that the baby's symptoms "raise the possibility of non-accidental trauma."

Medical records show doctors knew their infant patient had been at the hospital a month before for projectile vomiting and flulike symptoms. But by 7 a.m., doctors felt sure of what they were looking at.
"The findings are most consistent with shaken baby, plus or minus hypoxia injury," read a doctor's progress report on the case. Hypoxia refers to an injury caused by lack of oxygen.

Steven's condition did not improve. At noon, doctors declared him brain dead. One wrote the following: "Mom is currently hugging the patient and we are planning to withdraw support and allow him to progress to cardiac death later on this afternoon. The police have been notified of the findings."
Steven was pronounced dead at 3:30 p.m. on June 2.

* * *

In a case where shaken-baby syndrome seems a possibility, events quickly and simultaneously move along parallel tracks: doctors working to save a baby, police working to find a suspect.
But once doctors and police believe they are dealing with a shaken-baby case, they often ignore evidence that might suggest a different reason for a baby's illness, said Christina Rubalcava, an attorney with the Arizona Justice Project.

"You're already locked in to what it is," said Rubalcava, an attorney with Osborn Maledon who volunteered her time on the Witt case. She says that in general, once a doctor sees the triad of symptoms, a call to child-welfare agencies and police becomes automatic. The belief in shaken-baby syndrome "is like gospel to them," she said.

But Kathy Coffman, a pediatrician at Phoenix Children's Hospital who specializes in abuse cases, denied that doctors automatically diagnose shaking and ignore disease or infections or other causes. "We go through all the factors to make sure we're not missing something," Coffman said.

Coffman, a pediatrician for 20 years, was not at Phoenix Children's Hospital when Steven was treated and would not comment specifically on this case. She now is the medical director of a specialized unit at the hospital, made up of doctors and social workers, that handles suspected cases of abuse. "I don't think anybody who works in this field, law enforcement or anybody, is cavalier about making these calls," she said.

"The absolute last thing I want to do," she said, "is have someone go to prison for something they didn't do."

In the early morning hours of June 2, Phoenix police interviewed Witt and Holt as they sat in a room near their child. The questions seemed accusatory from the start, Witt said, and he ended the interview. A worker with the state's child-protection agency, in a report written later that morning, would say officers described Witt as "short-tempered and volatile."

After Steven died and Witt and Holt were leaving the hospital to go home, they found their car missing; police had seized it from the parking lot to search it for possible evidence. Friends drove them home, where they found two officers, armed with a warrant, who had been searching the trailer since 11:30 a.m. -- 4 hours before Steven died -- to find evidence to build a case.

"One thing after another," Holt said. "It's heartbreaking."

The police left at 9:30 p.m. They had pulled up carpet samples and took some baby items. The next day, officers knocked on the door and asked to take Witt in for questioning.

"Let's go," Witt said. "I ain't got nothing to hide."

Witt is a man of few words and didn't offer many to police. When detectives questioned him about what happened to the baby, Witt replied that he didn't know and that they should ask the doctors.

Witt was booked into jail on charges of first-degree murder and child abuse. He would remain jailed until his trial.

Holt said the arrest was devastating. "I lose my son, and then I lose the man who's done nothing but love me and love my son," she said. She had support from her extended family but felt some friends slip away. When she visited Witt in jail, which was often, she worked to buoy his spirits: "You'll be home soon," she would say. "This is just a misunderstanding. We know the truth."

Witt had a public defender who tried to get a plea deal, but Witt refused to take it. "When they arrested me, I figured somewhere down the line they'd come to their senses and figure out the right stuff," Witt said. "But clearly they didn't."

The trial started in February 2002.

"Steven Witt lived only five months," the prosecutor, Dyanne Greer, told the jury in her opening statement, according to a transcript. "He died as the result of violent, severe shaking. ... He died at the hands of a person who was supposed to be the caretaker ... and that man, ladies and gentlemen, is Drayton Witt."

Holt was called to the stand; she would be the first witness. It would be her job to tell the couple's story: how they "just clicked" when they first met through a friend; how Holt's extremely protective dog immediately warmed up to Witt; how, when she became pregnant by another man, Witt treated the child as if he were his own. She also told the jury about the baby's history of illnesses and hospitalizations, which included a respiratory infection, pneumonia, seizures and vomiting, and how the medicine he was given only seemed to make him worse.

After Holt, four doctors and the medical examiner took the stand. Each testified that Steven's injuries were most likely caused by shaking. To the jury, the evidence would have seemed strong and specific: The boy had certain injuries that, in the absence of major trauma, were possible only if he had been shaken violently. And the narrow, medically accepted time frame of the onset of the baby's symptoms pointed to Witt.

Witt, seated at the defense table, still held out hope. But his defense attorney called only one expert to cast doubt on whether the injuries were caused by shaking. Karen Griest, a forensic pediatric pathologist and former New Mexico coroner, said that "shaken-baby syndrome is sort of a hot topic of debate in the medical community. It's sort of an evolving process to figure out what is going on."

In closing arguments, the prosecutor painted a picture for the jury of Witt shaking the child.

"The defendant knowingly grabbed Steven, shook him so violently that he started to seize," Greer said. "Drayton had to know that Steven was being violently injured while he was shaking him to death, inches in front of his face," she said.

Jurors found Witt guilty of second-degree murder. When it came time for Witt's sentencing in April 2002, he told the judge that although he had been an unruly teenager, he had turned his life around with Holt and Steven. But he was not apologetic.

"I am not sorry, for I didn't do no wrong," Witt said, according to a transcript of the hearing. "I came up here to tell you how much my son meant to me."

The judge sentenced him to 20 years.

* * *

Though Witt asked for protective custody in prison, he said the request was denied, and he was put into the general inmate population. Three years into his sentence, he was attacked in the recreation yard by three men with improvised knives. Witt tucked himself into a ball and tried to cover his head, but said he was stabbed some 70 times before it was over. Ten of those wounds went through one or the other of his hands.

Witt was flown to a Flagstaff hospital, where doctors did surgery to repair his hands. Holt was at work when she got the call from Witt's parents telling her of the attack. When she saw him in his hospital bed, she knew they had to get married.

"Just wanting to make sure that he knew that I was there," she said. "And no matter what, he knew that if it came to 2020, I might be old and gray, but that I would be the one standing by that gate (waiting) for him to come home."

The wedding was in September 2006. The groom wore orange, his "carrot suit," as Witt called it. Prison rules dictate what a bride may wear: A wedding dress must have a neckline above the collarbone and sleeves that cover the arms. And no orange; that color is reserved for inmates. In the end, Holt just bought a dress she liked -- it was maroon -- and pulled a T-shirt over it during the ceremony to cover enough bare skin.

Tradition endures even in the strangest of settings. Witt said he paced in his cell nervously before the ceremony, held just before visiting hours. He would get to wear his wedding band in prison, but the bride had to provide prison officials proof of purchase. Guards did allow the groom to kiss the bride.
"It's emotional, no matter what," Holt said.

At the time of the wedding, all of Witt's appeals had been denied and exhausted. It appeared he would be in prison until 2020.

* * *

In 2009, Deborah Tuerkheimer published her paper, "The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts" in the Washington University Law Review.

"In its classic formulation, SBS comes as close as one could imagine to a medical diagnosis of murder," Tuerkheimer wrote. "Prosecutors use it to prove the mechanism of death, the intent to harm, and the identity of the killer."

Also that year, the American Academy of Pediatrics revised its position paper on shaken-baby syndrome. It urged physicians to stop using that term and instead describe injuries as "abusive head trauma." The group said it urged adoption of the "less mechanistic term" to stop the focus on shaking. Instead, the journal said, doctors should look at a wider range of possible causes.

Witt's prison records show that he was a model inmate after his marriage. He had been moved into protective custody following his assault. While there, he met Armando Castillo, another man who had been convicted of shaking a child to death.

The Arizona Justice Project filed its motion in Castillo's case in April 2010; his conviction was vacated 10 months later. The project took up Drayton Witt's case in 2011, and the news was a blast of hope, Maria Witt said. "You get that light sparked back in your life."

Those working on Witt's case assembled a list of medical experts who reviewed Steven's autopsy photos and medical records. Most concluded that Steven's death was likely caused by a blockage in the vein that drained blood from his brain.

The attorneys also spotted a letter in the New York Times Magazine from Norman Guthkelch, the British pediatric neurosurgeon who first wrote about the symptoms that indicated a shaken baby. In the letter, a response to an article about the changing medical opinions about shaken-baby syndrome, Guthkelch defended his 1971 paper that concluded babies can get severe brain damage from shaking. The city under Guthkelch's name: Tucson.

The Project attorneys asked Guthkelch to look at the records in the case. He filed an affidavit in support of Witt, which marked his first legal involvement on behalf of a person trying to reverse a shaken-baby conviction.

"The death of Steven Witt is the type of case where a diagnosis of Shaken Baby Syndrome should not have been made," Guthkelch wrote. He said there were too many other possibilities that could explain the baby's death, and that while his process offers a possible explanation for some head injuries, any presumption that an injured child was shaken was a "distortion" of his theory.

Also key to the case was the affidavit of A.L. Mosley, the county medical examiner who performed the autopsy on Steven. Mosley was shown new analysis of his autopsy by doctors who spotted errors in his work. Most notably, doctors said, autopsy photos showed a blocked and swollen vein that was not noted in the report.

Mosley, in his affidavit, concluded that "if I were to testify today, I would state that I believe Steven's death was likely the result of a natural disease process, not (shaken-baby syndrome)."

Witt's attorneys filed the motion in February. The state did not file a response. The judge vacated Witt's conviction and ordered his release.

* * *

The newly cast scientific thought on shaken-baby syndrome is affecting other cases. A 2007 case against Lisa Randall, a day-care operator, originally filed as a death-penalty case, was tossed out before it reached trial. An expert hired by the prosecution in 2010 concluded that the child did not die from shaking as originally thought.

In 2009, prosecutors dropped murder charges against Craig Rettig in a shaken-baby case from 2004. The defendant's lawyer located experts who found that the baby died from striking his head on a coffee table, not from being shaken.

Also, in 2009, Keith Roberts asked that expert testimony about shaken-baby syndrome not be allowed in his trial on charges that he killed his infant son. The Maricopa County Attorney's Office argued that both sides should present their experts and leave it for the jury to decide. The judge agreed. Roberts took a plea offer the day before his trial was scheduled to begin. He was sentenced to eight years in prison.

Witt was released from custody wearing a jail-issued paper suit. He borrowed a cellphone from a passer-by to call his wife. It was 8 a.m. She had been told he wouldn't be released until noon. She broke speed-limit laws driving from the opposite end of town to get him.

Maria Witt said having her husband out of prison is validation.

"To finally have people believe in me," she said, "and be able to start the grieving process and what we missed out on, and be able to start on the life that we missed out on, is more precious than anything."
Drayton Witt, who is working on a construction crew, said he often feels like a modern-day Rip Van Winkle, awakening to find a world where so much is accomplished by cellular phone, or that there are self-checkout lanes at the grocery store.

Witt does not want to take a plea deal like his friend, Castillo, did. He hopes prosecutors drop the case before his trial next year.

He does not blame police or prosecutors for the decade he spent behind bars. He said officers and attorneys were just doing their job. And he always figured the truth would win out.

"You keep screaming," he said. "Eventually, someone will hear you."

Reach the reporter at richard.ruelas@arizonarepublic.com.

Hulstedt v Scottsdale: Cops lied; Scottsdale/MCAO still prosecuting innocence

 

On N0vember 7, 2008 Scottsdale cops shot, brutally dragged, and permanently paralyzed a seriously mentally ill man who called them to ask for the Attorney General to come to his home. They had a come SWAT team help him out instead of allowing his family to talk him down from an agitated, distressed state, and he was holding his baby girl in his arms who was consequently injured when he was shot. 

Sound familiar?

Another Scottsdale cop, James Peters, just retired with full disability pension after shooting and killing John Loxas while he held his grandchild in his arms...sure am glad I don't live in Scottsdale these days.

Here's the original post on David's shooting: 

PROSECUTING INNOCENCE: The shooting of David Hulstedt

A year later a grand jury returned an indictment of David, alleging he had kidnapped and abused his child himself the day the cops shot him. Unfortunately, it appears as if David is still being prosecuted for the alleged crimes that "justified" his shooting. That despite his serious mental illness (he was very delusional when the cops attacked him in his yard), and the findings yesterday by federal judge G. Murray Snow that the cops lied repeatedly in order to justify their shooting, which was all screwed up to begin with (thank god for the video of the whole thing). 

Why is David still being prosecuted? From the file I just read, the cops who shot him are the ones who should be facing prosecution.

David's guardian sued on his behalf, and yesterday was a hearing on several motions re: Hulstedt v Scottsdale. News on that front is mostly good; below are some excerpts from the court record. Read the whole thing if you can - it's fascinating and the arguments apply to not only police brutality/ excessive force cases, but also searches.


First, these are the civil claims for damages that were filed on David's behalf:


"Plaintiffs’ complaint contains nine claims for relief under 42 U.S.C. § 1983 and seven supplemental claims under Arizona state law.3 (Doc. 28).

In Claim One, Plaintiffs allege that Officer Dorer and Officer Slavin violated David Hulstedt’s Fourth Amendment rights by using excessive force against him when they shot him.

In Claim Two, they allege that Officer Fellows and Officer Garcia violated David Hulstedt’s Fourth Amendment rights by using excessive force when they handcuffed him and dragged him across the asphalt, that Sgt. Dorer is liable for ordering that David be handcuffed, and that Sgt. Slavin is liable for ordering the officers to drag David to the ambulance.

Counts Three through Six, along with certain allegations in Count Seven, have already been dismissed on the pleadings by the original judge in this matter. (Doc.182).4

In the remaining portions of Claim Seven, Plaintiffs allege that officers searched the Hulstedt home in violation of the Fourth Amendment after the shooting, and that Det. Lockerby procured a search warrant for the home through judicial deception.

In Claim Eight, Plaintiffs allege that Lt. O’Halloran, Sergeant Scott Smith, Sergeant Dorer, and Sergeant Slavin bear supervisory responsibility under 42 U.S.C. § 1983 for directing their subordinates to act in ways that deprived Plaintiffs of their constitutional rights.

Claim Nine(a) argues that the City is liable based on two theories of municipal liability: a failure to train officers and a ratification of the officers’ decisions by the Chief of Police.

The remaining claims arise under Arizona state tort law. 

Claim Nine(b) is for Battery against Sgt. Slavin, Sgt. Dorer, Officer Fellows, Officer Garcia, and the City. 

Claim Ten is for Negligence by Sgt. Dorer, Sgt. Slavin, Det. Lockerby, and the City. 

Claim Eleven is for Negligence against Operator Trott and the City of Scottsdale. 

Claim Twelve is for Defamation against Officer Greene, Det. Lockerby, Officer Scritchfield, and the City. 

Claim Thirteen is for Intentional Infliction of Emotional Distress (“IIED”) against Sgt. Slavin, Officer Scritchfield, Officer Clark, Officer Greene, Det. Lockerby, Officer Fellows, Officer Garcia and others. 

Claim Fourteen is for Negligent Infliction of Emotional Distress against Sgt. Slavin and Sgt. Dorer, and 

Claim Fifteen is for Loss of Consortium against Sgt. Slavin and Sgt. Dorer.

Defendants move for summary judgment on every claim. (Doc. 271). Plaintiffs move for summary judgment on Claim One, Claim Two, the remaining portion of Claim Seven, Claim Nine(a), Claim Nine(b), and Claim Ten. (Doc. 265)."

Now, some remarks and observations made by the judge in reflecting on these claims (DH refers to David's 3 year old daughter): 

"One cannot pay “careful attention to the facts and circumstances of [this] particular case” and still conclude that the officers were free to fire at David and D.H. as soon the negotiators had coaxed him out of his front door. Graham, 490 U.S. at 396; (Doc. 313-2, Ex. L-1 at 6)...."

"Once the family members’ cell phones had been confiscated, Officer Antrim continued to speak to David over the telephone, stating that “we’re working on getting your brother but you do know as well as I do that this is not a real common practice to send someone into a home like that.” (Doc. 313-2, Ex. L-2 at 5). After fifteen minutes of negotiation, David apparently once again expressed concern that the police were there to shoot him. Officer Antrim continued to negotiate, and learned more about David’s anxiety and his medication. (Doc. 313-2, Ex. L-2 at 8).

Five minutes later, David told the negotiation team that he was ready to leave the house. (Doc. 313-2, Ex. L-2 at 14). When Sgt. Slavin, who was still putting on his SWAT team gear, heard over the radio that the subject was going to leave the house, he “started running down towards the command post.” (Doc. 269, Ex. PP at 144). When Sgt. Slavin reached the command post, he told the officers there that he wanted to go to the scene, obtained directions from them, and continued running towards the house. (Id.). Sgt. Slavin
had heard the previous radio transmissions, but was not aware of any operational plan, did not know how many officers were on the scene, and did not know if any officers had firearms at the ready or deployed. (Doc. 266-3, Ex. L-3 at 169–70). He made the decision to go to the scene on his own, passing through residential yards containing vegetation and cacti to reachthe house. (Id.)..."

"Neither Sgt. Slavin nor Sgt. Dorer warned David that they would shoot him if he did not comply with their commands, and both of them shot him in the back as he was walking away from them and towards the house. (Doc. 313-1, Ex. B at 57, Pospisil video). Sgt. Dorer, when asked if he ever perceived at any particular moment that David was going to “piledrive” D.H., responded, “I did not.” (Doc. 267, Ex. S at 44). Instead, he shot David “to prevent him from going back into the house.” (Id. at 43). When David was shot, he released D.H. as he collapsed and she fell forward onto the concrete walkway from a height of approximately six feet. (Pospisil video).

After David fell, officers converged on D.H. and David. (Pospisil video). Sgt. Dorer and Sgt. Slavin approached David on the ground; Sgt. Dorer ordered him handcuffed and Sgt. Slavin “ordered him to be dragged away from the scene.” (Doc. 269, Ex. PP at 145). Officer Deven Fellows and Officer Marcos Garcia handcuffed David and dragged him approximately 400 feet to where the medics were stationed. (Doc. 266-2, Ex. E at 136). The officers held David under his arms with his face pointed downward, so that his bare knees were in contact with the asphalt and gravel. The dragging resulted in “gaping wounds in David’s knees” that required extensive medical attention."

"The Ninth Circuit has written that summary judgment is rare in cases of police misconduct, because “police misconduct cases almost always turn on a jury’s credibility determinations.” Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002) (emphasis added). This case is an exception to that general caution. Almost everything the officers heard was recorded and transcribed, and the shooting itself was recorded on video. The officers fired at an unarmed man who was walking away from them. Although he had issued threats against D.H. earlier, nothing he did after walking outside would suggest to a reasonable officer that he was placing D.H. in imminent danger of suffering any more harm than falling to the ground. By shooting David, the officers caused the very harm that a reasonable officer could believe that David posed to D.H. Considering “the totality of the facts and circumstances in the particular case,” no reasonable officer could have believed that shooting David without warning, while he calmly walked back towards his house with D.H. over his head, was a proper means of protecting D.H.’s safety. Blanford, 406 F.3d at1115...."

And the judge's order: 

IT IS THEREFORE ORDERED:

1. Plaintiffs’ Motion for Partial Summary Judgment (Doc. 265) is granted in part and denied in part.

2. Defendants’ Motion for Partial Summary Judgment (Doc. 271) is granted in part and denied in part.

3. The remaining claims are as follows:

A. On Claim One, summary judgment is entered for Plaintiffs.

B. On Claim Two, summary judgment is entered for Defendants on thehandcuffing claim and denied to both parties on the dragging claim.

C. On Claim Seven, summary judgment is entered for Plaintiffs on the warrantless search allegations. (Doc. 28 ¶¶ 290–296). Summary judgment is entered for Defendants on the judicial deception claim. (Doc. 28 ¶¶ 297–301).

D. On Claim Eight, summary judgment is entered for Defendant on the claims against Sgt. Slavin, and Lt. O’Halloran, and for Sgt. Dorer regarding the handcuffing. Summary judgment is entered for Plaintiffs against Sgt. Dorer regarding the warrantless search. Summary judgment is denied to both parties with regards to the dragging claims. Summary judgement is denied to both parties with regards to Sgt. Slavin.

E. Claim Nine(a) survives only with regards to the ratification claim (Doc. 28 ¶308) and is otherwise dismissed.

F. On Claim Nine(b), summary judgment is entered for Plaintiffs against Dorer and Slavin regarding the shooting. Summary judgment is denied to both parties regarding Officer Fellows’ and Garcia’s dragging David to the ambulance.

G. Claim Ten is dismissed.

H. Claim Eleven survives.

I. Claim Twelve survives

J. Claim Thirteen survives only with regards to Officer Greene and Sgt. Slavin, and is otherwise dismissed.

K. Claim Fourteen is dismissed.

L. Claim Fifteen survives.

4. Plaintiffs’ Motion for Reconsideration (Doc. 333) and Motion for Certification of Issue for Interlocutory Appeal (Doc. 333-34) are both denied.

DATED this 6th day of August, 2012.

-------------

If David's family is out there reading this now, please get in touch with me - I want to connect you with folks who have been advocating for the mentally ill in the criminal justice system for awhile. They want to offer your family support. My name is Peggy Plews; my number is 480-580-6807; my email is arizonaprisonwatch@gmail.com

 

Prosecuting innocence: the liberation of Debra Brown.

Excellent article; sad story. Wrongful conviction is all too common, and justice for the innocent is not common enough...witness what happened to Courtney Bisbee.

-------------------------------------

Logan woman convicted of murder in 1995 deemed innocent

Deseret News

Tuesday, May 3, 2011 12:49 a.m. MDT
By Emiley Morgan,

OGDEN — She has spent 17 years sitting behind bars, and all Debra Brown really wants is a bicycle.

On Monday, an Ogden judge found the Logan woman — who has been in prison for murder since 1995 — "factually innocent."

"The court now determines by clear and convincing evidence that (Debra Brown) did not engage in the conduct for which she was convicted and is, therefore, factually innocent of the aggravated murder of Lael Brown," 2nd District Judge Michael DiReda wrote in a decision released Monday.

And when Debra Brown is released, her brother Dave Scott will be waiting. She wrote to him from prison some time ago about a dream she'd had in which she was riding a nice, expensive bicycle. Her brother spent a couple of years looking for the exact bike she had described.

"Her bike is ready, and as soon as I get the word, I'll head that way," Scott said.

The judge's decision came after a first-of-its-kind evidentiary hearing that spanned six days during which attorneys presented evidence to show that Brown, 53, could not have murdered Lael Brown, her boss and friend, in 1993.

Debra Brown's daughter, Alana Williams, was so emotional upon hearing the news Monday that she had to speak through her tears. "I can't even tell you (how excited I am)," she said.

Debra Brown was the one who found Lael Brown dead with three gunshot wounds to his head. Police said there was no sign of forced entry and Debra Brown was the only person with a key to Lael Brown's home. They also said she had forged more than $3,500 in checks and had a motive to kill him.

Debra Brown was charged months later and convicted by a jury in 1995.

The woman long defended her innocence, and in 2002 the Rocky Mountain Innocence Project began an investigation into her case, which culminated in the hearing to determine whether Debra Brown was, in fact, innocent. The team of attorneys that championed her cause went to tell her the news in person Monday.

"She was overwhelmed," attorney Alan Sullivan said. "She was emotionally overwhelmed and very grateful for this ruling."

The woman who has been described as "extremely strong" and "inherently happy" was so excited, hugging attorneys and trying to lift them in the air, that Sullivan said she had to be told to sit down.

"It was too much for her," he said, noting that the woman saw the opportunity to tell her side of the story to a judge as liberation enough.

But Debra Brown's case carries a precedent far beyond her own case. Hers was the first factual-innocence case to be filed after a 2008 change in state statute that allows for such a hearing when new evidence in a case — even if it is not DNA evidence — is found.

Katie Monroe, executive director of the Rocky Mountain Innocence Project, said Utah is one of only a few states that allows for a determination of innocence without DNA evidence. She said data suggests as many as 3 to 5 percent of those convicted on felony rape and murder charges are innocent, a statistic she called "conservative."

"This is incredibly important to our work because the majority of cases with people who are innocent and in prison don't have DNA evidence," she said.

For DiReda, the deciding issue was Lael Brown's time of death and Debra Brown's alibi. During Debra Brown's trial, prosecutors had argued that Lael Brown had been killed the morning of Nov. 6, 1993 — a Saturday — and a full day before his body was discovered. Debra Brown had no alibi for that morning.

Two new witnesses testified at the evidentiary hearing in March of this year that they saw Lael Brown alive that Saturday night, leading DiReda to determine that there is clear and convincing evidence that Lael Brown was still alive Saturday morning, the one time when Debra Brown would not have had an alibi. The judge said, based on testimony given by the medical examiner, that it was most likely Lael Brown actually died sometime between 9 p.m. Saturday and 3 a.m. Sunday.

DiReda wrote that the facts show that Debra Brown's whereabouts were "firmly established" from 10 a.m. Saturday through Sunday morning.

Under the factual-innocence statute, DiReda had to find that there was new evidence in Debra Brown's case that met the clear and convincing standard — not the legal innocence standard, which only requires that there be reasonable doubt.

Debra Brown's attorneys argued that their client had been convicted on circumstantial evidence and that Logan police failed to follow other leads in the case. That said, they say she continued to maintain a belief in the justice system.

"She believes in the process," Sullivan said.

The woman's family, which was characterized as "unwavering" in their support, said they had to believe that the same system that put Debra Brown behind bars would help her find a way out, Scott said. He said they also never once questioned whether or not his sister was innocent.

"Ours is a great system. We just had to hold faith. We just had to hang in the trenches."

He said he hopes his sister's case gives hope to others in a similar situation. Those in her family and the attorneys who worked with her said she was the source of optimism throughout the process.

"My mom is the one who kept all of us going," her daughter Alana Williams said. "We rooted for her from day one, but she's strongest one out of all of us. We can't even say thank you enough."

Both Williams and Scott had nothing but kind words for DiReda, who Scott said gave the family "a miracle" with his ruling.

"I'm just so grateful for Judge DiReda for his wisdom, his knowledge of the law and how he handled this because I knew he knew what needed to be done," Scott said.

An automatic five-day stay has been issued to allow the state to determine whether they will appeal the judge's decision. While he said he could not comment on the ruling, assistant attorney general Scott Reed said those in his office will be meeting with the "appropriate people" to determine what to do next.

If they choose to file an appeal in the five-day time frame, they will then have 30 days to formally file an appeal. The Logan Police Department will wait for the decision by the state and the Cache County Attorney's Office to determine what action, if any, to take next in the Lael Brown case, Assistant Logan Police Chief Jeff Curtis said.

"It's awful preliminary for us to make any kind of statement as to where we're going now until we can meet with the Cache County Attorneys Office," he said. "It's really in their court right now."

If there is no appeal, Monroe said Debra Brown will have her record expunged and will receive automatic monetary restitution. In 2008, the amount was $32,000 for each year spent in prison for up to 15 years.

Regardless, Monroe expressed her hope that Brown will be released as soon as the five-day stay expires on May 7.

"The state certainly has a right to appeal," Monroe said. "It wouldn't be unheard of, but we hope very much they choose not to."

Sullivan said he expects that even if the state should appeal, Brown will still be released for the time being. And her family will wait until the moment when they'll see Debra Brown as a free woman again.

"It's still kind of surreal," Alana Williams. "I still don't even know what to think until I can walk with her and say: 'She's out.' "

Email: emorgan@desnews.com Twitter: DNewsCrimeTeam

Charges dismissed against the Arpaio 5.

Been battling dental oppression lately which derailed me early into Garyn and Claire's trial today, so I missed the grand finale, personally, and haven't seen much of a write up yet from others. As court was getting underway this AM - the prosecution having rested yesterday on the conflicting testimony of several cops - the defense was busy working on photographs and videos they had to submit into evidence. (If you ever need that for your own trial, bring a back-up machine - they don't have prompt service if their own projector or other equipment fails). The judge heard "Rule 20" motions from both defense attorneys. Rule 20 states the following:

Rule 20. Judgment of Acquittal

a. Before Verdict. On motion of a defendant or on its own initiative, the court shall enter a judgment of acquittal of one or more offenses charged in an indictment, information or complaint after the evidence on either side is closed, if there is no substantial evidence to warrant a conviction. In an aggravation hearing, after the evidence on either side is closed, on a motion of a defendant or on its own initiative, the court shall enter a judgment that an aggravating circumstance was not proven if there is no substantial evidence to warrant the allegation. The court's decision on a defendant's motion shall not be reserved, but shall be made with all possible speed.

b. After Verdict. A motion for judgment of acquittal made before verdict may be renewed by a defendant within 10 days after the verdict was returned.

The defense put up their first witness, a photographer who was present at the rally on January 16, 2010. They adjourned for lunch to research a few things, then reconvened and the judge dismissed charges due to lack of evidence that the state could obtain a conviction on any count if they proceeded. In other words, we ended up with a fair and honest judge, this time, and the cops who could have so easily compared their stories and lied to make for a better case, didn't. Maybe they were all satisfied with the jail time they nailed Grace with in her plea bargain.

I had to leave before lunch, but it's my understanding that the charges are all dismissed with prejudice, meaning that the state can't turn around and charge Claire or Garyn again. YAY!!! Way to hang in there, you two.

I learned a lot from the cops about riot control procedures during this trial, and about their own vulnerabilities when it comes to making arrests that can actually be prosecuted. The cops couldn't even identify each other in the march, much less individual protestors. They were disoriented and confused when the pepper spray hit, even the ones in gas maks. Their testimony was conflicting, except that all indicated pepper spray was deployed, it was a chaotic atmosphere, it was hard to hear and see, and no one identified themselves as police to Garyn or Claire until after they were in custody.

Garyn was arrested on the word and gesture of a cop whose glimpse of a similarly-dressed bottle-thrower was immediately obscured by pepper spray; an officer who couldn't even identify him as the thrower in the aftermath. He was handed off to several other officers for detention, arrest, and booking, such that it sounds as if the booking officer never even heard the integrity of the direct testimony of the witness. That was how the cops were organized out there to function, too - the front line would hand suspects out to the arrest team with a brief synopsis of what happened, then fall back in line, not follow through with the booking themselves - not really even know who was doing it, apparently.

The myth that made Claire an accomplice to Garyn's non-act of resisting arrest - supposedly chaining herself by the neck to his body in an attempt to obstruct police - was repeated by every cop that testified about her yesterday, but no one had any evidence of such a chain or leash, no did any of them see Claire wearing anything resembling a collar. The only possible explanation for this phenomena seems to be that Claire's purse strap got caught on Garyn somehow and when the police tried to take him town, they dragged her down on top of him, kicking and screaming with no idea of what was happening. It's a wonder no one got seriously hurt.

It was also clear from police testimony that they were expecting "trouble" from the anarchists by the time the marchers reached the site where the pepper spray was deployed - it sounds like they were trying to provoke it along the route. I saw photos and heard testimony myself that cops were punching people in the black bloc crowd before any bottles were thrown.

That all said, I think Stephen Lemons and the Phoenix New Times owe the Arpaio 5 a big apology for convicting them before trial last year, and not showing up to see how the real thing turned out.

Trial of the Arpaio 5: This is what an anarchist looks like.

Hey Phoenix PD:
















This is what an anarchist looks like.

So is this...

------------From the Phoenix Anarchist Coalition list-serve--------

The trial will continue Wednesday, Feb. 2nd at 10:30 AM on the sixth floor (Rm. 612) of the East Court Bldg located at 101 W. Jefferson. It will open with the defense motioning for a Rule 20, meaning that the state is left with the burden of providing evidence that could lead to Garyn and Claire's convictions. If they can't, then the cases get dismissed, to my understanding. If they don't, trial will continue with witnesses for the defense. Today, trial kicked off with the state's witnesses, four cops, who pretty much punched holes through the state's case and the police reports with the assistance of the defense attorneys, the judge and even the prosecutor, ironically! Unfortunately, the police did ID the defendants, so their cases weren't dismissed today.

http://arpaiofive.blogspot.com/2011/02/garyn-and-claires-trial-reconvenes.html

------------------------------------------

Also, Brian Wilkins was at the trial from the get-go today (I stumbled in with no pen half an hour late), so follow his Operation Nation blog posts for the details on the trial. Really, go read it; you won't find a better account anywhere else. What a huge waste of our time and money the MCAO is responsible for here.

One for the good guys: Arpaio loses again.

YAY!!!!

The good guys won this one!!!!

(When are the people of this county going to finally just run that man out of office?)

Anti-Arpaio protesters awarded settlement from 2008 arrests

by Craig Harris and Yvonne Wingett - Jul. 9, 2010 12:00 AM
The Arizona Republic

Seven political activists claiming their civil rights were violated after they were arrested and cited for protesting against Sheriff Joe Arpaio's immigration policies recently were awarded nearly $475,000 by Maricopa County.

The settlement, reached this week, was nine times more than what the county's self-insured trust had originally authorized in February, and significantly higher than what the county planned to offer just days before the settlement, according to memos obtained by The Arizona Republic.

The settlements skyrocketed during negotiations because two lawyers working for the Maricopa County Board of Supervisors and a county risk manager persuaded the trust's board to pay up to $100,000 per plaintiff, records show. The money will come from the county's general fund, whose reduction this year caused layoffs and budget cuts.

Cari Gerchick, a county spokeswoman, said the earlier authorization "was an unreasonable amount" for the plaintiffs, and it would not have settled the case. She said the county's goal was to "minimize taxpayer exposure," and settling the case was far less expensive than going to trial.

But Chief Deputy David Hendershott of the Sheriff's Office called the settlement a "fraud on the taxpayers." He said the county should have settled for far less or forced the activists to go to court. Hendershott accused the county of settling to keep supervisors from being questioned in depositions.

The Sheriff's Office, he said, would have been allowed to participate in the depositions and would have questioned Supervisors Don Stapley and Mary Rose Wilcox about criminal investigations the Sheriff's Office had conducted against them. Investigations into questionable financial dealings by Stapley and Wilcox resulted in indictments, but all charges have been dropped.

Gerchick called Hendershott's allegation "ridiculous" and said the settlement had nothing to do with the ongoing battle between the Sheriff's Office and the supervisors. The settlement stems from the arrests and citation of protesters on Dec. 15, 2008, on the 10th floor of Maricopa County's administration building and two days later at a Board of Supervisors meeting. Some protesters wore animal masks and pig snouts.

All were later acquitted. They sued the county for wrongful arrest, malicious prosecution and civil-rights violations. The activists have been vocal critics of Arpaio and his immigration policies.

The settlements, reached Tuesday evening, will pay:

• Monica Sandschafer and Kristy Theilen each $99,999.

• Jason Odhner and Joel Nelson each $75,000.

• Guillermina Bethancourt and Ayensa Millan each $50,000.

• Raquel Teran $24,700.

County Manager David Smith said the settlement was a business decision. He estimated that going to trial on the cases could cost "at least $1 million in the first six months, just to defend them."

"You'd end up going round and round, grinding up all kinds of resources and spending two to three times the amount," Smith said. "Once again, the Sheriff's Office is creating these liabilities against the county. If it's 'fraud,' it's a fraud committed by virtue of bad acts."

The county expects to make the payouts within the next few weeks.

Records obtained by The Republic show the county intended to pay much less.

Maria Brandon is an attorney who works in the county's office of special-litigation services. She was appointed to represent the Sheriff's Office.

In memos sent to the Sheriff's Office days before the July 6 mediation hearing, Brandon stated that the county intended to start discussions with an offer of $2,000 per person and had no intention of giving away a lot of money. She indicated she received approval from the county trust in February to pay only up to $7,500 per plaintiff.

The county increased the payouts because, according to one of Brandon's memos, attorneys Brad Keogh and Wade Swanson, who report to the Board of Supervisors, and Assistant Risk Manager Rocky Armfield later went to the trust without her knowledge and received authority to pay up to $100,000 per plaintiff.

"I don't know why they did what they did, and I'm sure they have their reasons," Brandon said in an interview.

Swanson and Keogh declined to answer questions. Armfield could not be reached regarding Brandon's claim.

In a July 2 memo, Brandon stated that she and Armfield argued about the protesters, and he said it was OK to protest at the county's headquarters.

"He says the animal masks and pig snouts are for 'fun.' I said, 'Will they like it the next time if it is skinheads and neo Nazis?' " Brandon wrote.

Randy Parraz is another activist who filed a claim and is asking for $500,000. He withdrew from mediation and said negotiations are ongoing.

"In the event it doesn't get resolved, we have a lawsuit that's ready to be filed," Parraz said. "We're still engaged; we're still talking."