Monthly Archives: January 2011

Evidence not fabricated but still tainted, appeals court rules

Although a Sedgwick County prosecutor didn’t make up evidence, the Kansas Court of Appeals ruled he still shouldn’t have used it.

The most recent opinion (.pdf) is the second time the court ordered a new trial on whether Robert C. Ontiberos should be put in a mental hospital indefinitely as a sexually violent predator.

The Court of Appeals originally made that ruling, partly based on its belief the prosecutor fabricated evidence. But days after the ruling, the missing report was found in the court file.

The Court of Appeals then rescinded its order and agreed to hear the case again.

This time, the appeals judges said that although the evidence existed, it wasn’t properly admitted during cross-examination, so the judges concluded Prosecutor Marc Bennett still committed a foul:

We certainly understand that one of the acceptable techniques of impeachment is cross-examination of a witness about a prior inconsistent statement. But there are rules that must be obeyed…

The court also said Bennett exaggerated the information in the report that was lost, then found. Bennett had originally stated the prison disciplinary report against Ontiberos described him fashioning a weapon by wrapping duct tape around a pen. The court said the infraction was listed by prison officials as “less dangerous contriband.” Bennett had referred to it as a “knife.”

Judge Stephen Hill wrote in the opinion:

This name for the object makes a much more violent impact than the “less than dangerous” contraband conclusion of the authorities who actually dealt with the object.

But the ruling by Hill, with judges Melissa Taylor Standridge and Henry Green, also harshly criticized Ontiberos’ lawyer, Greg Barker. The judges counted 12 times Barker could have objected to Bennett improperly using the documents. But Barker never objected.

Wrote Hill:

… the lack of so many objections demonstrates an unacceptable level of incompetence on the part of Ontiberos’ court-appointed attorney.

Once again, Ontiberos’ latest attorney, Michael Whalen, has won a new trial for his client.

But the Court of Appeals is not the last word. The state can now appeal to the Kansas Supreme Court.

Sotomayor fulfills dreams of immigrants

Sonia Sotomayor said she knew just how significantly her life had changed when she attended her family’s holiday celebration this past New Year’s Day, her first since taking her seat on the U.S. Supreme Court.

Sotomayor’s Puerto Rican family from the South Bronx, N.Y., are known for being loud and boisterous and talking over each other, she said. But this year, when she spoke, the room went quiet.

“Nobody ever listens to each other. But they were listening to me,” Sotomayor said, drawing laughter from 600 lawyers, judges and others Friday night in Johnson County. “And now they’re rewriting history. My mother is now saying I was the perfect child.”

Sotomayor is the Supreme Court justice in charge of overseeing the 10th Circuit, which includes Kansas. She was in Overland Park to speak at a dinner honoring 150 years of the federal court in this state.

But despite her role as the first Hispanic woman to sit on the nation’s highest court, she still sees herself as a little girl “with Shirley Temple curls” who was inspired to study law by watching Perry Mason’s television courtroom dramas of the 1960s.

She told the audience Friday that she had no idea what kind of impact her appointment to the Supreme Court would have on others, like her, a first-generation American from a family of immigrants.

“One of the greatest surprises I have experienced in my nomination, my appointment, has been how it has cut across all Hispanic groups.” Sotomayor said. “Not just Puerto Ricans are excited about the fact that I had been nominated. There is not a Hispanic child, adult, older person who doesn’t tell me that they stand a little prouder.”

It’s not just Hispanics that celebrate her success. Sotomayor recalled strolling around the Roosevelt Memorial, looking at the cherry blossoms, during her first spring in Washington D.C.

Suddenly, an Albanian woman ran up to Sotomayor, grabbed her and hugged her.

“My marshals were beside themselves,” Sotomayor said of the security patrol accompanying her.

Sotomayor was surprised, too.

“She cried and she said to me, ‘You are the embodiment of the freedom of this country,’ “ Sotomayor remembered the woman saying. “ ‘Thank you for letting me feel that my children have a chance.’ ”

Sotomayor’s background became a focus during contentious Senate confirmation hearings, where her opponents tried to use culture to question her fairness.

She also told Friday’s audience that she’s learned the court with the last say on the law of the land needs nine divergent voices.

To make that point, Sotomayor remembered receiving a phone call from Justice David Souter, whom she replaced in 2009. She said he told her how he learned the value of differing opinions.

“He told me, ‘It was the day that I realized that all of my colleagues were people of good faith and good sense, ‘ ” Sotomayor told the audience. “ ‘That every one of my colleagues – even the people I disagreed with– were passionate about this country, passionate about the constitution and passionate about trying cases. And I realized even when we disagreed, it was out of love for the things we all valued.’

“His words have resonated with me,” she said.

DNA not essential in proving innocence

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It doesn’t always take DNA to show a flawed conviction.

Thomas Cress is proof of that. Last month, Michigan Gov. Jennifer Granholm commuted Cress’ conviction for the 1983 murder of a Battle Creek teen.

Doubts about Cress’ case surfaced through reports by the Detroit Free Press. They included a 1992 confession to the murder of the 17-year-old girl by a serial killer arrested in Arkansas.

There apparently had once been DNA linked to the crime. But as Free Press reported, the prosecutor at the time ordered it destroyed — after learning of the other man’s confession.

Across the country, judges and governors are striking down convictions, upon learning of new evidence, false witness testimony and corrupt policing.

Cress’ case also spurred the development of the Michigan Innocence Clinic, which takes cases where there is no DNA or biological evidence. The clinic succeeded in getting the convictions of two others reversed last year.

Of the 29 inmates exonerated in the U.S. and Canada last year, 17 had their convictions reversed without DNA.

Read the report from the Innocence Network:

2010 Innocence Network Exonerations

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Exonerated death row inmate to visit WSU

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Updated: Inclement weather cancelled the appearance by Juan Melendez

Wichita will be able to hear another story of a man who has been wrongly convicted.

Juan Melendez, who spent more than 17 years awaiting a death sentence for a crime he didn’t commit, will speak next week at Wichita State University. He’s scheduled to speak twice: 7 p.m. Feb. 1 in the Campus Activity Center (CAC) Theater at Rhatigan Student Center. and at 2 p.m. Feb. 2 at the Rhatigan Fireside Lounge.

Now 59, Melendez was sentenced to death in Florida in 1984, after being convicted of killing a beauty salon owner. The case against Melendez largely hinged on the word of a police informant. Among the evidence left out of Melendez’s trial: another man confessed to the crime. Melendez was released from death row in 2002 and has traveled the country speaking about his experiences.

The Wichita State Criminal Justice Student Association is sponsoring the event.

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Tracking the ghost of an “eye witness”

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Bruce Elliott remains one of most perplexing parts in the murder conviction of Ronnie Rhodes.

Elliott, then 40, was the eye-witness who police claimed could identify Rhodes as the killer of Cleother Burrell, but who never really did. Not to the police. Not in court (video link). Yet he was the prosecution’s star witness and one of the key elements in convicting Rhodes of murder in 1981.

Since receiving copies of court and police records, I’ve spent a lot of time in the Eagle’s old library, which reporters used to refer to as “the morgue.”

It’s the place where old research material and clips were kept away in the days before Google and digital files.

Eagle morgue

Eagle morgue

Bruce Elliott is nowhere to be found. Not in the 1980 or 1981 City Directory, which lists residents and businesses in the city. He’s also not in the cross-directory of telephone listings. Web searches of the social security number he gave police have not turned up anyone named Bruce Elliott.

Also, court files show that Elliott had a misdemeanor theft conviction in Wichita Municipal Court. But a search of old Municipal Court records did not turn up his name.

Elliott literally had blood on his hands the night police interviewed him. He had blood on his shirt, his shoes and his coat the night Burrell was stabbed 20 times. Burrell had been staying with Elliott in Apt. 14 at 630 N. Topeka.

We’ve obtained copies of transcripts of police interviews with Elliott. In the first interview, Elliott said he got blood on himself in his work at Trinity Marketing Service, then located at 2340 N. Broadway. Elliott said he got blood on him, because he helped grind up cattle bones for dog food.

Police never tested his clothes, or took samples from the blood on his hands to see if it was cattle blood or human blood.

In court, on cross examination from Rhodes’ lawyer, Elliott also admitted he lied to police about the blood. He then changed his story to say he’d gotten blood on himself after he took sheets off his bed, which were drenched in Burrell’s blood.

Elliott, 40, at the time, also testified that after police told him they considered him the killer, he suddenly said he’d seen the stabbing and identified a picture of Rhodes as the killer.

On the stand, Elliott admitted being drunk in court. He was also drunk the night police interviewed him.

That identification took place between taped interviews. The lineup process was never recorded and the line-up pictures were never shown to the jury.

In court, Elliott repeatedly denied that Rhodes was the man he saw stab Burrell. But Detective Mike Jones later told the jury Elliott had identified the picture of Rhodes as the killer. Jones testified he wasn’t present when other detectives showed Elliott the lineup.

After a day’s deliberations, jurors came back with a verdict of “guilty.”

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Belot: Schneiders owe victims $115 million

A former Haysville doctor and his wife owe more than $115 million to victims of their “pill mill,” according to a federal judge’s order filed late this afternoon.

U.S. District Judge Monti Belot acknowledged in his ruling that Stephen and Linda Schneider will never be able to repay the debt. But the judge said the law requires him to order restitution.

A jury convicted the couple last summer of illegally prescribing pain killers and other crimes linked to the overdose deaths of 68 patients. In October, Belot sentenced Stephen Schneider to 30 years, and Linda Schneider to 33 years, and the government has seized all their remaining assets.

Belot ordered restitution for claims made by 117 insurance companies and former patients. The claims ranged from $300 by one insurance company to $50 million by a former patient.

After 30 years, Texas conviction overturned

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Cornelius Dupree Jr., saw his conviction for rape and robbery overturned Tuesday by a judge in Dallas, Texas.

Dupree spent 30 years in prison and had two chances to walk free. But he was denied parole because he wouldn’t own up to his crimes and undergo treatment as a sex offender. Then earlier this year, results of DNA testing showed Dupree had been right all along — he wasn’t guilty of the crime that sent him to prison at the age of 20.

Dupree with lawyer Barry Sheck

Those wrongfully convicted in Dallas are fortunate that authorities keep evidence in their cases, The Associated Press reported:

“Dallas County’s record of DNA exonerations — Dupree is No. 21 — is unmatched nationally because the county crime lab maintains biological evidence even decades after a conviction, leaving samples available to test.”

Since 2009, Texas has compensated the wrongly convicted for the time they spent in prison.

“Dupree is eligible for $80,000 for each year he was behind bars, plus a lifetime annuity. He could receive $2.4 million in a lump sum that is not subject to federal income tax.” (AP)

Kansas does not have a similar law.

Eddie Lowery had to file a civil suit, which resulted in a $7.2 million settlement, after spending 10 years in a Kansas prison for a crime he didn’t commit.

The story of being denied parole for not admitting to a crime is a familiar one, however.

Ronnie Rhodes has been turned down for parole seven times. According to records provided by the Kansas Parole Board, the main reason his refusal to take responsibility for a 1981 Wichita murder. Rhodes says he’s not guilty.

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Photo: The Associated Press