I have slept very badly since last Wednesday, the day I heard the awful news about Ohio’s continuing persecution of Joseph Allen — a sweet and gentle man I’m privileged to call a friend.

And now it is Independence Day, a day upon which we are supposed to celebrate our freedom. But it is hard for me to celebrate, knowing that the state has the power to snatch away the freedom of any (non-privileged) citizen. While I don’t support the Tea Party movement, I share the anger of many who do.

Sixteen years ago, Joseph and his co-defendant, Nancy Smith, of Lorain, Ohio, were convicted of committing crimes that never happened. The “evidence” against them was unreliable: the coerced testimony of small children who had been pressured to claim that Smith and Allen had done terrible things to them. The techniques used to interview these children have since been thoroughly discredited. No reasonable person could look at this case and conclude that either person was guilty.

Nevertheless, Smith and Allen rotted in prison for fifteen years. But over a year ago, they were back in court because of an error in their sentencing. At that time, Judge James Burge saw an opportunity to right a terrible wrong: he acquitted them because there was insufficient evidence to convict them. There matters should have stood.

But the District Attorney and Ohio Attorney General immediately appealed the judge’s decision.

I once heard a prosecutor say that his worst nightmare was convicting an innocent person. That is true for some prosecutors. For others, their worst nightmare is convicting an innocent person and not getting away with it.

Last Wednesday, the Ohio Appeals Court decided to let Smith’s acquittal stand but to send Allen back to prison. Their reason: in 1994, Smith’s attorney had filed a motion for acquittal but Allen’s (incompetent) attorney had not. So Joseph, who spent 15 years in prison for crimes he didn’t commit, faces the prospect, after over a year of freedom, of spending the remainder of his days behind bars.

I must concur with Dickens’ Mr. Bumble: “If that is the law, then the law is a ass.”

One of the Appellate Justices — Donna Carr — dissented from the decision. She wanted to send both Smith and Allen back to prison. She believed that allowing either to go free would cause the public to “lose confidence in the criminal justice system.”

Such Alice-in-Wonderland reasoning boggles my mind. It was the same “logic” that was used by the Massachusetts Supreme Judicial Court when it reinstated the convictions of Cheryl and Violet Amirault. The reasoning seems to be: we must retain public confidence by refusing, regardless of the facts, to admit that innocent people get sent to prison.

But it is the obstinacy and callousness of people such as Carr and the members of the Massachusetts Supreme Judicial Court that cause reasonable people to lose confidence.

I fear that America has become a nation containing two kinds of people: those who count and those who don’t. I’m happy to number myself among the people who don’t count because I don’t crave the company of the other sort.

Prime examples of people who don’t count are Joseph Allen, Bernard Baran, Victor Rosario and many others I could name. Poor people lack the resources to defend themselves against the powers of the state. And once thrown into prison, it is next to impossible to free them.

When David battles Goliath, in the vast majority of cases Goliath beats the crap out of David.

On occasion, David will get off a lucky shot.

This, fortunately, happened with Bernard Baran. Several extremely improbable events occurred that made his freedom possible. Some of these improbable events: (1) He attracted the support of Katha Pollitt, who wrote two compelling columns in The Nation; (2) his web site attracted the support of a businessman who paid a large portion of the necessary legal expenses and (3) the District Attorney who was withholding vital exculpatory evidence had a fatal heart attack while shoveling snow. Had any one of these improbable events not occurred, Baran would almost certainly have died in prison. His odds of winning megabucks were greater than his odds of winning freedom.

The cost of Baran’s freedom, by the way, was about $600,000. (Justice is a most expensive commodity.) And Baran’s efforts to obtain some compensation from the state are vigorously opposed by Massachusetts Attorney General Martha Coakley.

When a poor but innocent person has a better chance of winning the lottery than of winning freedom, then something is very wrong with the system.

I accept the fact that injustice will always be with us. Evil people will always seek power and use any means necessary to get it. And good people — if and when they achieve power — will too often be corrupted by it. Such is human nature. The bullies will always rule the schoolyard.

But even the most powerless among us still have choices, if only choices about basic values. The individual can still choose whether to go along with injustice or to resolve to resist it. And if we lack the power to resist it, we can at least bear witness to its existence, in hope that others can and will act. Those who believe we already have a just society will not strive to create one.

Happy Fourth of July.

-Bob Chatelle

The next time we were in a courtroom together was on February 12^th, 2008. Berkshire County DA David Capeless had appealed Fecteau’s ruling and was determined to send Baran back to prison. The Massachusetts Appeals Court was holding a hearing on Capeless’s motion. While Baran was not in handcuffs and shackles, he was wearing a GPS bracelet and living under the sort of severe restrictions that now burden those sex offenders considered the most dangerous. He was far from a free man.

On May 15^th 2009, Baran received a favorable ruling from the Appeals Court that was even stronger than the decision handed down by Fecteau. All charges were finally dropped on June 9th.

This afternoon I was again in a courtroom with Baran. But this time, someone else was the defendant.

Baran last January filed suit against his previous lawyers. The defendants are the estate of Leonard Conway (his trial lawyer), his appellate attorney (David Burbank), and Burbank’s firm at the time, Cain, Hibbard, Myers, and Cook.

Cain Hibbard has filed a motion to dismiss the lawsuit, arguing that the Statute of Limitations prevents Baran from acting. Today’s hearing was on that motion. Cain Hibbard was represented by a Boston law firm hired by their insurance company. Baran was represented by John Swomley and Eric Tennen. The Judge was Leila Kern.

Judge Kern began the proceeding by stating that “Plaintiff has been horrifically served by the legal profession and by the prosecutors.” We were encouraged (but a bit surprised) by this remark. Baran even turned to me for confirmation that he was the plaintiff in the case. Kern also went on to make clear that her ruling would have to be in compliance with the Statute of Limitations.

Judge Kern, unfortunately, is very soft spoken and I couldn’t hear much of what she said. But I think I understood the gist of her remarks throughout the proceedings.

The insurance-company lawyer (who in my opinion did his job professionally but without enthusiasm) first argued that Baran would have had to file his claim against the trial lawyers within three years of his conviction and against his appellate lawyers within three years of the denial of his direct appeal.

The judge commented that requiring this of someone convicted by jury and serving a sentence would place a considerable burden on the plaintiff.

The insurance-company lawyer argued that there is no legal requirement for exoneration before someone can file a legal malpractice suit. He cited the example of a lawyer who neglects to bring a plea bargain to a client and the client ends up serving a more sever sentence as a result. In such a case the client has the right to sue without exoneration.

The insurance-company lawyer went on to argue that even if exoneration were held necessary, the Statute of Limitations would have started tolling on June 16, 2006, the date of Fecteau’s ruling.

Judge Kern said that the Commonwealth had appealed Fecteau’s ruling within the allotted ten-day window. She asked whether Baran would have needed to file his suit within that ten-day period. The lawyer countered that Baran could have filed at any time before the Appeals Court ruled.

He also argued the importance of the Statute of Limitations in protecting defendants from countering a lawsuit caused by actions that occurred decades ago.

Eric Tennen argued that the essential question in the case was: When did the damages accrue? One cannot bring a lawsuit if there have been no damages. And there were no legally provable damages until Baran was exonerated. Tennen argued that exoneration was quite different from post-conviction relief. Fecteau’s ruling did not exonerate Baran. Baran was still under indictment and these indictments were not dropped by Capeless until June 9, 2009. Only at that time did Baran have legally provable damages.

Tennen also pointed out that in cases dealing with events that happened decades ago the discovery burden weighs heavier on the plaintiff because it is the plaintiff that has the burden of proof.

I am not sure how long Judge Kern will take to rule. My impression was that she is sincerely outraged about what was done to Bernard Baran. But it is also my impression that her ruling will be carefully crafted to withstand the scrutiny of appellate review.

However she rules, I’m sure the matter will almost certainly be referred to the Appeals Court. And if the Appeals Court permits Baran’s suit to proceed, I predict that the insurance-company lawyers will offer a settlement.

Baran has suffered more than most people can imagine. There’s not enough money in the world to compensate him and his family for the pain the Commonwealth of Massachusetts cruelly inflicted upon them. We can hope at least that the terrible financial burdens that now weigh upon him will be somewhat alleviated.

Baran has also filed for compensation by the Commonwealth under a Massachusetts law that provides payment to those wrongfully convicted. These efforts are being vigorously opposed by Massachusetts Attorney General Martha Coakley.

A great many good friends urged me to hold my nose and vote for Martha Coakley because it was vital to save health-care reform. But I could not bring myself to do this.

Ironically, the defeat of Coakley turned out to help Obama pass HCR.

His prior strategy was to preserve 60 votes in the Senate. This gave conservatives (from insurance-industry states) Joe Lieberman and Ben Nelson veto power over the content of the bill. And they used their power in December to get what they wanted.

Once Coakley was defeated, however, Obama had to go with Plan B. He switched to a reconciliation strategy, which only required preserving a majority in the Senate. Lieberman and Nelson lost their veto power.

Would they have used it? Lieberman did vote for the bill. But Nelson did not.

So if Coakley had won, Obama would probably have gotten a bill less to his liking. And Martha Coakley would be Senator-for-life in Massachusetts.

-Bob Chatelle

Here’s an article about Coakley by my friend, Judith Levine.

-Bob

Our good friend JoAnn Wypijewski has written a wonderful article about the recent disgraceful ruling by the cadre of Martha Coakley fans who make up the Supreme Judicial Court here in repressed-memory land.

This is a must read. Pass it on!

-Bob Chatelle

Many old and dear friends have been very sad and angry these past few days. And many are angry with me for my refusal to vote for Martha Coakley. I have of course been defriended on Facebook and I have lost subscribers to this blog. Others I have directly encountered have just been uncomfortable in my presence. We have usually avoided discussing the election.

I think I can honestly say that I know how these good friends feel. All I have to do is remember how I felt last December 8th, when Coakley won the Democratic primary. She won with less than half of the votes cast. She received only the votes of seven and a half percent of registered Massachusetts voters. But I, like many others, assumed that the final election would be no more than a formality. I thought that Coakley would continue to be a major influence on political thinking, not only in Massachusetts but nationally.

I have been especially pained by the accusation that I don’t care about health care. I believe some who make this accusation have never had to do without health insurance because they couldn’t afford it. Jim D’Entremont and I have. We could not have done the work we have done these past dozen years — for Bernard Baran and others — had we held down full-time jobs. There were times when we tried to insure ourselves. But eventually, we realized that one of us had to drop out. A month or two later, the other would follow. There were times when we needed medical attention and just didn’t get it.

A few years ago, Massachusetts adopted a plan of increasing coverage by fining those who did not buy health insurance. Those who couldn’t afford the premiums supposedly would receive subsidies from the state. An inefficient (and often rude) bureaucracy was created to determine who got the subsidies and the amount. The forms one had to fill out were horrendous. And somehow, they never seemed to be correct. After weeks of dealing with nasty people on the phone, we finally thought we’d filled Jim’s form out correctly. Unfortunately, they lost that form and we had to start over. I finally gave up on the plan and waited for Medicare. Jim was granted a tiny subsidy. When Jim eventually told his doctor that he couldn’t see him any more because he had to drop his insurance, the doctor referred him to someone who knew how to get around the bureaucracy and get him the coverage he needed at a price he could afford.

Bernard Baran and his partner are battling the bureaucracy right now. Neither of them are working. Bee can’t work and David is a seasonal employee. But the bureaucracy doesn’t want to listen to them.

When Obama was elected, my fear was that he was going to model a national plan on Massachusetts. I am not sorry that he has been forced back to the drawing board. Of course, the problem may not be soluble because there are so many powerful interests who benefit from the system as it exists. Not all problems can be solved. Not all disasters can be avoided. But we can at least hope that politicians can put aside partisan differences and try to find a solution.

Obama is not doomed to failure because of the loss of a Senate seat. Previous presidents of both parties have governed effectively without a majority in the House of Representatives and 60 votes in the Senate. I for one am relieved that Joe Lieberman and Ben Nelson have been stripped of their veto power — a power they both relished using. If I had wanted Joe Lieberman as my president I would have voted for him.

I hope that the defeat of Martha Coakley will at least diminish the influence of the Middlesex County District Attorney’s office on Massachusetts politics.

Scott Harshbarger was elected District Attorney of Middlesex County in 1982. He was succeeded by Thomas Reilly, his first assistant. And Reilly was succeeded by their protege, Martha Coakley. All three made a big name for themselves by winning convictions of people who are almost certainly innocent: Violet, Cheryl and Gerald Amitault; Ray and Shirley Souza; Louise Woodward; Paul Shanley; and others. All three have consistently and stubbornly refused to admit that they might have made any mistakes. All three have been backed to the hilt by New England’s paper of record, the Boston Globe. In other states, politicians and judges have realized that the coercive questioning of small children creates unreliable evidence. In other states, politicians and judges have realized that there is no scientific basis for the theory of repressed memory of traumatic events. In other states, measures have been taken to exclude junk science from the courtroom. But not in Massachusetts because of the poisonous influence of the Middlesex County DA’s office and its powerful cheering section.

Harshbarger, Reilly, and Coakley all moved up (with no serious opposition) to the office of Attorney General, where they continued to fight to preserve the power of prosecutors. For all three, the Attorney General’s office was supposed to be but a stepping stone to greater power. But the strategy didn’t work. Harshbarger and Reilly ran for governor — and lost. And now Coakley has lost — in a spectacular and humiliating fashion — her bid to become a U.S. Senator.

I think the Massachusetts Democratic party will be better off with the diminished influence of these three  ruthless and ambitious politicians.

I also hope that one result of this election might be the diminished impact of identity politics, both here in Massachusetts and nationally. I have voted for many women and expect to do so in the future. But a candidate’s gender has never determined my vote. Neither has their race or their sexual orientation. If you vote for someone because of their gender or race you are also voting against someone for the same reason. Yes, we should have more women in public office. But to achieve that we need to run first-rate candidates.

Again, I take no pleasure in seeing good friends in pain, especially in a pain that I understand because I have so often felt it. But I also know from experience that this kind of pain eventually diminishes and, when it does, one can more rationally assess what went wrong and how we can work to make things go right in the future.

I know this election was especially difficult for those who follow this blog because you know much more about Coakley’s history than did the average voter. While I posted much about Coakley I could not bring myself to support Scott Brown or urge you to vote for him. But now that he represents Massachusetts, let us hope that he will in fact represent Massachusetts. For all of my complaints about the state (or at least its politicians) a great many good, decent, and thoughtful people live here. Some of them voted for Martha Coakley. That doesn’t lessen my affection and respect for them. I hope we can continue to work together for justice.

-Bob

The Michael O’Laughlin case is over.

-Bob

Over the past few days I have received many email messages imploring me to see “the big picture,” to hold my nose, and to vote for Martha Coakley.

I can’t do that. The issue is just too personal for me.

I still go into prisons. I still correspond with prisoners. I still speak with prisoners on the telephone.

And I’ve come to know the people who love them: their spouses, their children, their parents, their friends.

The pain and suffering caused by Martha Coakley and her ilk is beyond measure.

I cannot say to these people: “I am sorry but I must vote for someone who built her career on injustice. I must look at ‘the big picture.’ And in ‘the big picture,’ little people like you just don’t matter.”

Has my personal involvement in these cases affected my judgment?

I certainly hope so.

Those of you who don’t personally know any prisoners or their families have the luxury of looking at “the big picture.”

I do not. I hope some of you can understand.

-Bob

I have received many emails from good friends telling me why they will be voting for Martha Coakley tomorrow. I respect you and I respect your reasons.

I also respect those of you who will be voting for Scott Brown, Joseph Kennedy, or a write-in candidate. And I respect those of you who have decided to just stay home.

This is a difficult election. All we can do is cast — or not cast — our ballots thoughtfully.

The following excerpt from the document Frank Kane sent me concerns Coakley’s actions as Attorney General. It demonstrates that Coakley is firmly on the side of prosecutorial power and has little concern for the rights of defendants. But our courts are not level playing fields. While prosecutors are supposed to bear the burden of proof, it has now de facto become necessary for defendants to prove themselves innocent beyond doubt. Prosecutors are paid by the government as are any expert witnesses they use. Defendants must either raise enormous amounts of money — sometimes hundreds of thousdands of dollars — or rely on underpaid and overworked public defenders. And once a conviction occurs, it is next to impossible to have it reversed.

I find most troubling Coakley’s advocacy (in the name of the people of Massachusetts) for total prosecutorial immunity, even in cases where they deliberately frame innocent people. One reason we see so much injustice in our court system is that prosecutors have carte blanche and know they will not be held accountable for their misdeeds.

I will be so happy when this election is behind us. Here is the excerpt from Frank’s report:

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Coakley Signs On To Amicus Curiae Brief re Death Penalty and States’ Rights

On November 6, 2009, the Boston Globe published an article, titled, Death penalty foes rip Coakley for signing brief, citing facts in the case which involves an Alabama man, a convicted murderer.  The man, Holly Wood, has appealed to the Supreme Court on the grounds his state-appointed lawyer failed to introduce crucial evidence that he, Mr. Wood, is mentally retarded.

Attorney General Coaikley, who says she is firmly against capital punishment, has drawn the ire of some death penalty opponents by urging the U.S. Supreme Court to limit federal review of state court decisions, which opponents say could make it harder for defendants on death row to challenge their sentences.

Coakley, along with 18 other states’ attorneys general, signed a friend-of-the court brief in September, 2009, asking that the nation’s highest court maintain restrictions on intervention by federal courts.  Death penalty opponents say if Coakley’s arguments prevail it could be more difficult for federal courts to overturn death sentences, as well as other criminal punishmnents, handed down in state courts.

“There’s no way this kid should be killed,” said Stephen B. Bright, president and senior counsel at the Southern Center for Human Rights, who also teaches at Yale and Georgetown Law schools.  “At the end of the day, if Alabama wins, this kid with an IQ in the 60s will be executed.”

Coakley and her aides argue that her signing the brief had nothing to do with the death penalty and that they were purely concerned with the legal implications of allowing federal courts more discretion in reviewing decisions that state courts have already made, which Coakley asserts would take additional time, money, and resources..

Coakley said that the brief she signed, though it is attached to a death penalty case, is limited in scope and is designed to address only the question of what role the federal courts should have in reviewing state court decisions.  She says the brief makes no mention of capital punishment.

“It’s definitely a death penalty case,” said Kerry Scanlon, Wood’s lawyer, “I was surprised to see that Massachusetts had signed onto this brief.”

At issue is the interpretation of the Antiterrorism and Effective Death Penalty Act of 1996, which in most instances bars federal reconsideration of legal and factual issues on which state courts have already ruled.  A Supreme Court ruling in Alabama’s favor could result in federal courts having to defer to state judgments in many instances.  Death penalty cases from the states are among those frequently challenged in federal court.

“If you’re concerned about the death penalty, than you have to be concerned about people being able to have their case reviewed in federal court,” said Bryan Stevenson, executive director of the Equal Justice Initiative of Alabama.  “The error rate, in my judgment, is shockingly high, so high that you want federal courts to be able to review these cases without a lot of restrictions.”

“In this case,” Stevenson added, “Mr. Wood will be executed in a matter of weeks….It is not theoretical in Alabama.”

In their brief, Coakley and other states that signed onto it argued that the decisions already made by state courts should not be over-ridden.  The brief states, in part, “States have the obligation to protect the finality of the judgments entered by their courts—–an obligation that is even more compelling when it involves criminal judgments.  Undoing finality in habeas corpus litigation in the federal courts can undermine the states’ interests in ensuring safety, deterring crime, and rehabilitating criminal offenders.”

[Note:  There's that word again;---Finality.  Now, if only the states were infallibly correct in their investigations and trials, their convictions and rulings, and only guilty folks were ever found guilty, we wouldn't  need any oversight, would we?  But that doesn't appear to be so, not by a long shot.]

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Amicus against Two Iowa Men

Martha Coakley also joined in an amicus brief that advocates for total immunity for prosecutors in a case of two African American men from Iowa, having spent 25 years of their lives in prison, who’d been appealing their unjust conviction on the grounds they’d been framed by prosecutors for a murder they did not commit.  In November, 2009, the case was before the U.S. Supreme Court.

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Appeal to U.S. Supreme Court against Accused’s Rights to Question Forensics

On November 10, 2008, Martha Coakley, as Atorney General, argued before the Court that requiring forensics scientists to testify at criminal trials where their reports are presented as evidence would place an undue burden on the state’s already-backlogged drug testing system.

The case centers on whether a defendant’s Sixth Amendment Right to confront witnesses against him applies to the admission of drug analysis certificates as evidence at criminal trials.  If it does, the analysts who prepare the reports could be required to provide live testimony in court.

The Justices pointed to California’s system, in which drug analysis certificates can be admitted as evidence only if the analyst who prepares the report testifies, or if the defense stipulates that the reports can be admitted without testimony.  When asked why Massachusetts couldn’t function under a similar system, Coakley said she was not familiar enough with the California system.

On June 6, 2009, the Supreme Court ruled that criminal defendants have a constitutional right to cross-examine forensic experts who prepare laboratory reports on illegal drugs and other scientific evidence used at trial.

The Innocence Project, a national advocacy group that has used DNA evidence to exonerate 240 convicted criminals, hailed the decision, which applies to state and federal courts across the country.  The group said that faulty forensic science contributed to about half of the wrongful convictions the organization has helped to reverse.

Coakley was criticized for her poor showing before the Court, from her trouble dealing with the question regarding California’s system and two other justices’ questions over distinctions between crime lab reports and eyewitness testimony.

She asserted that her performance has no bearing on her ability to advocate for Massachusetts in the Senate.

You might find interesting this article by Jean Mercer on the Psychology Today website.

-Bob Chatelle