Issue 231

January 24, 2003

CASE LAW:

R. v. J.S.M., Ontario Court of Appeal, January 20, 2003

 

 

ARTICLES:

Diversity Gives Depth to the Law, Los Angeles Times, dated January 3, 2003.

Cruz, 2 others pardoned, The Chicago Tribune, dated December 20, 2002.

DNA test ruling may help inmate on Death Row, The Chicago Tribune, dated December 20, 2002.

Teenager's Role Tangles Case Against Older Sniper Suspect, The New York Times, dated December 22, 2002.

Jailed by lies, freed by truth, The Chicago Tribune, dated December 22, 2002.

Drug courts can be effective alternative, The Atlantic-Journal Constitution,

dated December 22, 2002

The Practice of Criminal Law as a Career The Gazette, dated 2002.

 

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R. v. J.S.M.

 

Case review by: Christine Wiseman (Student: Osgoode Hall Criminal Law Intensive Program)

 

This decision, an appeal from the Ontario Court of Justice, Youth Court was released January 20, 2003 and written by Moldaver, J.A.

 

The appellant was convicted of one count of dangerous driving contrary to s. 249(1)(a) of the Criminal Code and was sentenced to open custody and a driving prohibition.  The appellant raised several grounds in support of his conviction appeal, but most notable was the issue of inadequate representation at trial.

 

The appellant was not represented by counsel at trial.  The appellant’s application to legal aid was denied.  The appellant then applied under s. 11(4) of the Young Offenders Act for a direction to be represented by counsel.  The appellant subsequently withdrew that application, citing that the proceedings were having an adverse impact on his parents’ health. 

 

At trial, the appellant was assisted by his mother.  It was submitted that they did not fully appreciate the applicable procedural rules and legal principles at trial, were unable or failed to adequately introduce or otherwise elicit evidence favourable to the appellant, and generally were unable to persuade the youth court judge to accept their theories and submissions.  The respondent Crown argued that the appellant and his mother participated extensively in the trial process and were assisted in many ways by the trial judge.  The appellant court found that the overwhelming evidence against the appellant would have supported a conviction even if the questionable testimony had been challenged and rejected. 

 

Furthermore, the Court found that it was open to the appellant to privately retain counsel, as testimony was led at trial that the family had been prepared to do so but had never followed through with arrangements.  The appellant had requested the Court to appoint counsel to represent him on appeal.  Rosenberg, J.A. dismissed that application, citing the test set out in Bernardo (1997), 121 C.C.C. (3d) 123 (Ont. C.A.).  In applying this test, Rosenberg J.A. concluded that the appellant was in a position to advance with the appeal without the assistance of counsel because the issues at hand were not complex and because the material from trial demonstrated that the appellant understood the applicable legal principles as they pertained to the case.

 

The Court found that they were not satisfied that the advocacy presented by, or on behalf of, the appellant was inadequate to fairly and fully present his defense, or that trial fairness was undermined.  The Court dismissed the conviction appeal, stating that the appellant, in essence, was now seeking to retry his case to achieve a more favourable outcome. 

 

 

The following commentary appeared in the Los Angeles Times, dated January 3, 2003.

Diversity Gives Depth to the Law

 

By Paul Brest

 

For well over a quarter of a century, law schools have been taking race into account in their admission of students in order to promote diversity. This winter, the U.S. Supreme Court will reconsider the 1978 decision that held that this practice was constitutional. As a former law school dean who saw the benefits of diversity firsthand, I fervently hope that the court will reaffirm this precedent. To do otherwise would compromise the core educational mission of American law schools.

American legal education is highly interactive, aimed at getting students to examine the law from all possible perspectives. This is accomplished by the professor's orchestration of students' discussions of legal precedents. Students are pressed to examine even well-settled cases with a skeptical eye. The process is designed to teach problem-solving skills and also to impart the critical stance characteristic of all good lawyers.

This method of education depends on students bringing a diversity of perspectives to the classroom.

Of course, a law student's race does not determine his or her point of view on issues of legal policy. As a professor, I encountered a range of viewpoints within every racial and ethnic group. But it is a fact that people of different races and ethnicities often have different experiences. For example, African Americans regularly encounter discrimination not experienced by whites. A recent New Yorker profile on National Security Advisor Condoleezza Rice describes a salesperson's assumption that, because she is black, Rice was interested only in costume jewelry rather than real gems.

By itself the incident was trivial. What's not trivial is African Americans' recurring experiences of being treated in a demeaning or discriminatory manner. Black students bring an important "reality check" to discussions of employment and housing discrimination and racial profiling by the police.

Because of their different experiences, policies that seem benign or neutral to whites may have a different meaning for the members of minority groups. And the salience of discriminatory acts may be different -- a factor that is relevant in the inevitable balancing of competing interests that courts perform.

While most white members of the Supreme Court understand the message conveyed by cross burning, reports of the recent oral argument in the cross-burning case suggest that the justices were given a new perspective after listening to Justice Clarence Thomas' passionate description from the bench.

To be sure, students can learn something of value simply by reading about Rice's or Thomas' experiences. But this is a poor substitute for face-to-face discussions in which students can directly engage their classmates, confront the meanings of such experiences and debate the legal policies that should respond to them.

Such discussions, inside and outside the classroom, gave rise to some of the most memorable times in my years as dean. At their best, they provided powerful educational moments for all involved. While minority students complained of the burden of constantly having to educate their white classmates, the minority students learned as well.

One vivid experience involved a yearlong debate about whether the university should punish so-called "hate speech." I don't know how many students changed their minds as they better appreciated both the psychic injuries of being the target of racial slurs and the importance of free expression in an academic community. But I do know that many students who started out with adamant convictions came to understand the other side and learned to deal constructively with disagreement about such a highly charged question.

Learning does not occur only through controversy. A class drawn from various backgrounds allows students to appreciate commonalities among their classmates as well as differences and to learn to communicate across racial boundaries. Such understandings are essential for lawyers, who will yield enormous power and play leadership roles in diverse political, civic and private organizations.

In an ideal world, the racial diversity necessary to educate tomorrow's lawyers would occur without having to take race into account in admitting a law school class. But an ideal world would not be heir to the legacies of prejudice and discrimination that continue today. Apart from its educational benefits, affirmative action in law school admissions has produced many highly successful minority lawyers and has noticeably desegregated the profession. It would be tragic if the court were to halt this "work in process" at a time when Americans of many persuasions appreciate both the progress that has been made to date and the unmet needs still before us.

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The following article appeared in The Chicago Tribune, dated December 20, 2002.

Cruz, 2 others pardoned

By Steve Mills and Ray Long


CHAMPAIGN -- Gov. George Ryan on Thursday pardoned three men who had been wrongly convicted of murder, including Rolando Cruz, the one-time Death Row prisoner whose case has been emblematic of Illinois' troubled death penalty system.

The pardons came one day after federal prosecutors drew their tightest connection between the governor and the licenses-for-bribes scandal, but Ryan said the pardons were not an attempt to push attention away from the allegations.

Speaking at the University of Illinois School of Law, Ryan also issued pardons based on innocence to Gary Gauger, who was sentenced to death for killing his parents in McHenry County; and Steven Linscott, who was convicted of the murder of an Oak Park nursing student.

Together, the three cases represented prosecutions built on false confessions that defense lawyers claimed had been manufactured by authorities: the so-called vision statement by Cruz; a blackout statement from Gauger; and Linscott's dream statement.

"Three men, three statements described as visions or dreams that were used against them . . . The only vision they saw was of a justice system run amok--of their dreams being dashed and ruined by the criminal justice system," Ryan said. "I wish them well. They have been through hell."

Ryan called reporters "cynics" for suggesting he had any motive for Thursday's announcement other than to correct the wrongs done the three men, who now can seek compensation for their wrongful imprisonment.

"I've been working on this for a long time," Ryan said after his speech. "I didn't just do this today. We planned this for several weeks."

Federal prosecutors allege Ryan knew aides in the secretary of state's office were going to destroy documents showing state resources had been used for campaigning. Ryan wouldn't discuss the allegations.

Lawrence Marshall, one of Cruz's attorneys, called the pardon "official vindication" for Cruz, who for years had refused to seek a pardon and was opposed in his effort by DuPage County prosecutors.

He said the pardon was not blemished by questions surrounding the governor because Ryan, who nearly three years ago declared the nation's first moratorium on executions, has shown a consistent commitment to reforming the death penalty system.

"I think it's always been clear that the governor has always been very serious and concerned about this, and has been committed to it while other things buzz around him," said Marshall. "I think anyone who has seen the governor or listened to him has seen that he is struggling to make good public policy."

Ryan, in the speech and in questions afterward, also offered a window to his thinking on the death penalty, saying he would abolish it if he could. He also said he was perplexed that the families of some murder victims feel entitled to an inmate's execution.

"There's one thing that I'm somewhat disturbed about, and that's that I think most people that are [victims' family] members feel it is their right to have death as the penalty," Ryan said. "And I'm not sure why that is . . . But they claim that the only way that they can get closure on the issue is to kill the person that killed their loved one . . . I'm not critical of it. I just think it's kind of a wrong situation."

Cruz was twice convicted of the 1983 murder of 10-year-old Jeanine Nicarico of Naperville, and twice the Illinois Supreme Court reversed the convictions. In 1995, Cruz was tried a third time and acquitted after DuPage County Sheriff's Lt. James Montesano recanted critical testimony.

Last month, DuPage County prosecutors said new DNA tests had positively linked convicted murderer Brian Dugan to the Nicarico case. Dugan once had offered to confess to the crime. Prosecutors have never charged him, however, but they say they still are investigating the case.

The Prisoner Review Board, which hears requests for clemency and makes confidential recommendations to the governor, voted not to recommend a pardon for Cruz, according to sources. Ryan was not bound by the recommendation, however.

Jeanine Nicarico's mother, Pat, who with her husband Tom had testified to the review board that they still believe Cruz was involved in the murder, said she was "very disappointed" and did not "know where the governor is coming from."

In an interview with WGN-Ch. 9, Cruz said Ryan was his hero and that "I always wanted to . . . have this expunged from the record because I didn't do anything,"

Dan Curry, spokesman for Atty. Gen. Jim Ryan, said the attorney general--who as DuPage County state's attorney twice prosecuted the case--had no position on the pardon.

"It's a matter for the governor to decide and the governor decided it," said Curry. "The attorney general doesn't have any say in the matter and he doesn't have any reaction to it."

Joe Birkett, the current DuPage County state's attorney, said in a statement that though Cruz is "entitled to live without the stigma of an indictment" a pardon is "another matter."

And Thomas Knight, a former DuPage assistant state's attorney who led the prosecution of Cruz at the first trial and who introduced the Nicaricos at Cruz's Prisoner Review Board hearing last month, said there are still questions as to Cruz's innocence--a view Ryan denounced in granting him a pardon.

Gauger had been wrongly convicted of the 1993 murders of his parents, 74-year-old Morris Gauger and 70-year-old Ruth Gauger, in a prosecution based largely on Gauger's willingness to say he might have blacked out when the murders occurred.

Two members of the Outlaws motorcycle gang were implicated in the crime and have since been convicted. Nonetheless, McHenry County prosecutors opposed Gauger's pardon because they didn't want to preclude the right to bring charges against him in the future if new evidence is uncovered. Prosecutors are working on the case.Gauger, reached at home Thursday night, said he was pleased with the pardon and planned to seek compensation in the Illinois Court of Claims for his years in prison.

"My personal vindication was when I was free from jail," he said. "To me, this is a public vindication."

Linscott was a Bible student when he was convicted of murdering a young Oak Park nursing student.

In October 1980, two days after the body of Karen Anne Phillips was found raped, beaten and strangled, Linscott told Oak Park police that he had had a dream about a woman being beaten to death.

Police and prosecutors later claimed Linscott's recounting of the dream was his way of confessing his guilt and the discrepancies between the crime and the dream were his way of distancing himself from it.

In 1982, a jury convicted him and he was sentenced to 40 years in prison. Twice the Illinois Appellate Court set aside the conviction, once because of what it described as insufficient evidence and a second time for prosecutorial misconduct.

In 1992, DNA tests failed to link Linscott to the crime and the charges were dropped. Now 48 and a counselor for abused children in Springfield, Linscott said the pardon brought him "deep satisfaction."

He said he had broken the news to Lois, his wife of nearly 26 years.

"It is a real Christmas gift."

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The following article appeared in The Chicago Tribune, dated December 20, 2002.

DNA test ruling may help inmate on Death Row



An Illinois Supreme Court decision Thursday clears the way for DNA testing in the case of Death Row inmate Ronald Kliner.

The decision centers on hair samples found on the body and hands of Dana Rinaldi, 28, who was shot five times in the head outside her Palatine apartment in 1988.

Kliner, 41, formerly of Des Plaines, was one of three men convicted of the murder, but defense attorneys say advanced DNA testing, unavailable at the time of his trial in 1996, could prove his innocence.

Cook County Circuit Judge Karen Thompson Tobin ordered prosecutors to turn over the hair samples last year, but the state's attorney's office appealed to the Illinois Supreme Court.

The court ruled that prosecutors did not have a right to appeal directly to the Supreme Court.

Illinois law allows direct appeals only in unusual circumstances, such as when a trial judge declares a state law unconstitutional. The court did not voice any opinion about whether the DNA test, when completed, would aid Kliner's defense.

 

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The following article appeared in The New York Times, dated December 22, 2002.

Teenager's Role Tangles Case Against Older Sniper Suspect

By Jayson Blair




CENTREVILLE, Va., Dec. 19 — In the nearly two months since the sniper attacks in the Washington area ended with the arrests of John Muhammad and his teenage protégé Lee Malvo, investigators say they have made one striking conclusion: All the evidence they have points to Mr. Malvo as the triggerman. Little if any indicates Mr. Muhammad fired a shot.

Some officials who have reviewed the evidence at the sniper task force's new headquarters here in suburban Virginia say that the lack of evidence against Mr. Muhammad will complicate prosecutors' efforts to get a death sentence for him in the shooting of Dean Harold Meyers, who was killed at a gas station in Manassas on Oct. 9.

After the two men were arrested on Oct. 24, it was widely assumed, even by some investigators, that Mr. Muhammad fired most of the shots, which hit their targets with remarkable accuracy. He was a former Army infantryman, 24 years Mr. Malvo's senior.

The reversal in assumptions is only the latest that has occurred since the long, terrifying weeks of the attacks. Investigators said they were looking for a white van; the men were found in a 1990 blue Chevrolet Caprice. Experts said the assailant would probably turn out to be a white gunman; Mr. Muhammad and Mr. Malvo are black. Since the attacker outfoxed so many investigators and attacked with such cool precision, it was assumed that Mr. Muhammad, an experienced marksman, was the primary killer. Now, investigators say, it appears that a teenager is to blame.

"Nothing is what it seems in this case," said the state's attorney, Douglas F. Gansler, the chief prosecutor in Montgomery County, Md., where six of the shootings occurred.

The Justice Department arranged to have the two men tried first in Virginia — rather than in Maryland or the District of Columbia, where the other shootings occurred — largely because death sentences could be obtained more easily against both there. A Virginia law passed after the Sept. 11 attacks makes a death sentence possible for those convicted of ordering terrorist killings, even if they did not actually commit them. That law is untested, however, and if Mr. Muhammad is convicted solely under it, any death sentence is likely to face a wide range of appeals.

But to obtain a conviction under Virginia's traditional capital murder law, which requires proof that the defendant pulled the trigger, prosecutors in Prince William County would have to show that Mr. Muhammad fired the sole shot that killed Mr. Meyers, even though the only evidence points to Mr. Malvo.

Investigators say the evidence against Mr. Malvo includes:

¶His own admissions to both Virginia shootings in which the men are being tried and to one in Maryland, made in conversations with Fairfax police detectives.

¶Hair linked by DNA to Mr. Malvo found in the trunk of the Caprice. A hole was carved in the trunk to create a sniper's nest.

¶A videotape recovered from a security camera near the Home Depot parking garage in Falls Church, Va., where Linda Franklin , an F.B.I. analyst, was killed on Oct 14. The videotape shows someone who appears to be Mr. Muhammad inside the driver's seat of the car.

¶Mr. Malvo's fingerprints found on a piece of paper near where investigators believe the shot was fired that wounded Iran Brown, 13, outside Benjamin Tasker Middle School in Bowie, Md., on Oct. 7.

¶Saliva found on a grape stem on the hill where investigators contend someone fired the shot that killed Conrad E. Johnson, a bus driver, in Aspen Hill, Md., on Oct 22.

"There is not much pointing to Muhammad, and that is going to make it really hard to show that he was the triggerman," said one senior law enforcement official who is involved in the case. "There are other ways to attempt to obtain a death sentence, but this lack of evidence has been one of the most perplexing things about the case."

The law enforcement official added, "Not being able to seek the death penalty under both statutes would increase the likelihood that his lawyers could get a conviction overturned on appeal."

The evidence in each case adds up to different ways to approach the prosecution. To prove that Mr. Malvo is a candidate for the death penalty in the shooting of Ms. Franklin, Fairfax County prosecutors could argue that, despite his youth, there is evidence that he was the major participant in the shootings. Unlike Maryland and the District of Columbia, Virginia allows for the death penalty in murders committed by juveniles.

With little evidence directly tying Mr. Muhammad to the shooting with which he is charged, Prince William County prosecutors could, under the antiterror law, paint him as the mastermind, a criminal Svengali.

Prosecutors say that while as a matter of law it is permissible to argue competing theories about the same crimes in different courtrooms, it might not be wholly ethical.

"The defense can argue competing theories," said James A. Willet, a prosecutor in the case against Mr. Muhammad. "Our job is to make sure that justice is done, so we can't and don't want to go to one jurisdiction and say Muhammad was the shooter and another jurisdiction and say that Mr. Malvo was the shooter."

Mr. Willet also called the antiterrorism law "some unexplored water" but said he was confident it would stand up on appeal.

Those close to both men's defense teams said their lawyers would most likely use any contradicting theories to try to weaken the government's cases.

"We are going to work hard to force them to be consistent," said one person close to Mr. Muhammad's legal team.

Investigators discussed the evidence to counter public perceptions that Mr. Malvo was under the spell of Mr. Muhammad Still, some investigators say that several acquaintances of Mr. Muhammad's say he had been training Mr. Malvo to fire a rifle for more than a year before the sniper attacks started, and saw himself as a master who was preparing his protégé. Mr. Muhammad trained Mr. Malvo in karate when they lived in Washington State and traveled together to the Arizona desert last spring, investigators say. In Tacoma, Mr. Muhammad gave Mr. Malvo the nickname Sniper, acquaintances say, and practiced rifle shooting with him in the backyard of a friend's house.

Defense lawyers for both men declined to comment for this article.

That so much evidence would point to Mr. Malvo does not surprise some investigators who in the early hours after the arrests in Maryland had already begun to conclude that Mr. Malvo was the primary shooter. Investigators and prosecutors in Maryland arrived at that theory, one not widely circulated, after seeing that the Caprice's trunk had been turned into a sniper's nest that Mr. Malvo, but not Mr. Muhammad, could fit into. Mr. Malvo is 5 feet 5 inches tall, and Mr. Muhammad is 6-foot-1.

"This suggested Malvo had fired the shots that came from the car," said an investigator who was involved in early evidence collection.

One law enforcement official said that investigators strongly believe that Linda Franklin and Iran Brown were hit from the Caprice.

By the end of the day of the arrests, investigators concluded that only Mr. Malvo's fingerprints were found on the Bushmaster rifle and bipod that the police say was found in the car's trunk. The rifle has since been linked to most of the Washington-area shootings.

One thing that has complicated prosecutors' efforts in the Muhammad case has been admissions Mr. Malvo made to detectives in Fairfax County on the day he was transferred to Virginia from Maryland on orders of Attorney General John Ashcroft. In a seven-hour interrogation, Mr. Malvo told detectives that the shootings were well planned and involved scouting missions, two law enforcement officials said.

Mr. Malvo told the detectives that the men used two-way radios to look out for the police. The investigators said that Mr. Malvo would not discuss Mr. Muhammad's role in any detail but took responsibility for the shooting of the teenager and the killings of Ms. Franklin and Mr. Meyers.

As both cases roll toward trial, investigators here at the sniper task force's new command center in this suburban office complex are scrambling, particularly for more physical evidence that links Mr. Muhammad to the shootings.

In the hunt for the snipers, the task force had more than 1,200 investigators at its disposal, and now a team of about 50 detectives will be following leads for the next six months to a year here in Centreville.

"They are continuing to chart and investigate the activities of John Allen Muhammad and Lee Boyd Malvo," said Lucille Bower, a task force spokeswoman. "That will take a lot of work, and there will continue to be new revelations."

Douglas M. Duncan, the chief executive of Montgomery County, said that people are prepared for more surprises in the case.

"The pseudo-profilers were totally wrong on this, and people after it was all over were sort of laughing at how they were not even close," Mr. Duncan said.

"When you add it on top of the Sept. 11 attacks and the anthrax attacks," he said, "we live in a different world and people are ready for anything. If you talk about surprise or shock, it is this 17-year-old kid running around shooting people. That's sick."

 

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The following article appeared in The Chicago Tribune, dated December 22, 2002.

Jailed by lies, freed by truth

 

By David Heinzmann, Jeff Coen and Matthew Walberg


When Edar Duarte Santos moved his family from Puerto Rico in 1995, he found more than a landlord in Miguel LaSalle.

Santos and his wife, Lillian, had come to Chicago to seek better medical care for their son, who was born with brain damage. The family moved into one of LaSalle's apartments on North California Avenue and Santos found extra work as a handyman for his landlord. The two men became friends.

A photograph of those days, curled slightly with age, shows LaSalle and Santos relaxing at the kitchen table, emptied plates and a few Miller High Life cans in front of them.

And then came Nov. 7, 1997. Santos was out watching a televised prizefight when his wife called his cell phone and said police were looking for him.

Soon he was in a police interview room, and his fear and confusion were turning to anger and the sharp pain of betrayal. The detectives said LaSalle had accused him of taking part in a murder that July.

With the story LaSalle told police in 1997, he shattered the lives of four men from the Logan Square neighborhood who would be convicted in the torture-killing of furniture store owner Sindulfo Miranda.

One was a factory worker with a wife and two children. One was an undocumented Mexican immigrant working two jobs to send money home. One had a history of drug peddling but often appeared to be homeless, and one was a bicycle repairman who had turned to small-time burglaries. Their ages ranged from 19 to 34.

Last week, out of the blue, the four got a chance to put their lives back together. The U.S. attorney's office charged LaSalle with lying about the Miranda murder, an act that prosecutors said had helped cover the tracks of the real killers--a band of gang members who are now accused of killing the 56-year-old Northwest Side man in an attempt to steal drugs and money from him.

Hours after U.S. Atty. Patrick Fitzgerald announced the dramatic development Wednesday, Santos was back home with his family.

Sitting at his kitchen table Thursday, Santos said he had nearly lost hope in prison. "I prayed that one day the truth would come out," he said.

Released with Santos was Omar Aguirre, who is now 33. Two others--Robert Gayol, 39, and Luis Ortiz, 24, remain behind bars for other convictions.

Glimmer of hope

Although he still faces several years on a burglary sentence, Gayol suddenly has hope of a life beyond jail. After a bench trial in 2001, Gayol had been sentenced to life in prison. But he has remained in Cook County Jail while his lawyer tried to arrange a new trial.

He was sitting in his cell in Division 11 Wednesday afternoon when a female guard walked by with a question.

"She asked, `Do you believe in God?' And I said I did," Gayol said Friday. "She asked why, so I told her, `It's because the Lord has helped me in many bad situations.'"

Within minutes, the guard led Gayol to a small meeting room where his attorney had some amazing news. He was being cleared of the Miranda murder; his life sentence would be wiped out.

"I was overwhelmed," he said, sitting again in the room where he had gotten word of his exoneration. Tears welled up in his eyes as he talked about leaving Cook County Jail, where he has been held since 1997.

"I'm going to church to thank God first," he said. "Then I want to go to school. I want a family, I've gotten too old being in this place."

Gayol was in his early 30s when he first heard of Miguel LaSalle. In the months before Miranda was killed, Gayol moved in with his girlfriend in a building owned by LaSalle.

After being arrested and jailed for a string of burglaries that summer, Gayol said his first inkling he was facing a murder rap was the following fall, when police took him from jail and drove him to a site less than two miles away.

The officers parked their car on an isolated side street on the Southwest Side, where Miranda's body had been found months earlier in his burning Mercedes.

"They said, `Do you remember this place from July, when you lit that match?'" Gayol said. "I told them I had no idea what they were talking about."

By that time, LaSalle had included Gayol in his story about the murder, placing him in a bar he had never been to, hatching a murder plot with four men--two who were strangers and two he barely knew.

In LaSalle's version of events, he witnessed five men plotting Miranda's murder, saw them with the victim on the night of the killing and even talked to Santos by cell phone during the crime.

LaSalle told police that bar owner Ronny Gamboa hatched a plot to rob and kill Miranda and enlisted the help of Santos, Gayol, Aguirre and Ortiz. Gamboa was acquitted.

The original police investigation first led to LaSalle because someone using Miranda's cell phone before the murder called LaSalle's pager repeatedly, according to court documents. When they hauled LaSalle in for questioning, he began to point the finger at the five men he knew.

Santos said LaSalle tried to sell him a cell phone in August 1997, a month after Miranda's murder. After his arrest Santos learned the phone belonged to Miranda.

"I never used it. I took it to a shop to transfer my [cellular plan] to it" but the store owner needed the signature of the original owner to sign the phone over to Santos, he said. LaSalle never signed the phone over and Santos said he never retrieved it from the store.

That fall, Santos got a call from LaSalle, whom he said was being questioned by police.

"He asked me if I still had that phone," said Santos, who said he believed LaSalle was trying to use the phone to tie him to Miranda.

Questionable ties

The only codefendant Santos knew was Omar Aguirre, a hardworking immigrant he had befriended when Aguirre fixed his car.

Aguirre, who is estranged from his wife in Mexico but had been sending money home to support his children and his parents, said in an interview he did not know any of the other codefendants. In the two years he lived in Chicago before being arrested he had usually worked two jobs, sorting paper six days a week at a recycling center and moonlighting at an auto body shop.

Aguirre's plan to save a nest egg before returning to Mexico was derailed when he was arrested for the Miranda murder. For a man who spoke almost no English, the next three days of interrogation were baffling and frightening.

"They were always coming back and asking me" for details of the murder, he said through an interpreter Thursday. "I just kept telling them I didn't know what they were talking about."

Aguirre said he was struck by police and once tossed into a corner before signing a confession. Aguirre later claimed his confession, which was written in English, was invented by police and he thought he was signing a release to go home.

The confession implicated his friend Santos as well. After five days of being interrogated, Santos was also charged.

A jury convicted Aguirre in 1999 and sentenced him to 55 years in prison. Just one day after his release last week, Aguirre had found a construction job and resumed pursuing his dream of making enough money here to live comfortably in Mexico one day.

"This country is like any country," he said of America. "But the police don't properly do their jobs."

Chicago police and prosecutors are reviewing the handling of the cases.

"I can tell you that our detectives followed the evidence as it existed in 1997," Supt. Terry Hillard said. "That evidence included an eyewitness account of the crime by a person who knew the offenders ... No one here is currently in a position to accurately assess the prior investigation."

Other than Santos and Aguirre, the others were only vaguely acquainted, if at all.

Gayol said he once sold Santos an air conditioner, but that was his only contact with him. Gamboa said Ortiz occasionally panhandled outside his tavern, Ronny's Bar, at 2103 N. California Ave. None of the men were patrons of his bar, Gamboa said, but Miranda was an occasional customer.

Despite his family's fight to show he was working at a Franklin Park factory on the day Miranda was killed, Santos sat in jail for four years with his case unresolved.

Painful decision

Eventually, he said, he made a practical decision to plead guilty to a crime he had not committed. The deal on the table, with time served in jail, would have meant his release in August.

"I was real tired of being locked up and I'd lost faith that my lawyer would represent me 100 percent. And the other guys had gotten life and 55 years," he said. "I had the choice to either do this short time and be with my family again or take my chances at being in prison for at least 25 years, and then not have my wife and kids when I got out."

Gayol had drifted apart from his family, who initially had no idea he was even jailed. Christmas 1997 came and went, he said, with his mother wondering what had happened to him.

Ortiz declined a request for an interview at the Pontiac Correctional Center, where he remains, serving an 8-year sentence for a 2001 stabbing at Cook County Jail.

Facing the prospect of a lengthy prison term, Ortiz turned state's evidence and testified against Gayol at his 2001 bench trial before Judge Ronald Himel.

Gayol remembered Ortiz from the neighborhood as a man often in need of spare change or a cigarette. Gayol said he would occasionally lead Ortiz into a neighborhood store and put a pack of cigarettes on his tab for Ortiz.

Ortiz testified Gayol was among the men solicited to kill Miranda in a robbery.

"For him to get up on the stand and say those lies," Gayol said. "How could you do that to anybody? Of course it was to save himself."

The testimony earned Ortiz a 25-year prison term, instead of a potential life sentence. Even in the face of the testimony, Gayol said he remained hopeful Himel would see through the fog of accusations surrounding the case. He did not.

"He told me he hoped I would never see the light of day," Gayol said. "He humiliated me."

Himel has since said he believed Ortiz.

Crushing blow

For Gayol, the life sentence was devastating. As he began to cry, he said: "How could you find someone guilty of something he has absolutely no knowledge of?"

Ortiz also testified against Gamboa, who was acquitted in 2000. His attorney, George Becker, said this week that "the case just smelled rotten."

To believe Ortiz, Becker said, Gamboa solicited the murder in front of multiple witnesses, and then the victim just happened to appear at the bar.

"And then nobody got a dime," Becker said of a case where the supposed motive was robbery. Gamboa said he went deep in debt fighting the charges.

Assistant Public Defender John Conniff plans to argue Gayol should soon be released from the jail. He was sentenced to 14 years in prison for his burglaries, and is eligible to serve half of that time.

He has served more than five years, and Conniff said he plans to argue that Gayol received a stiff sentence for the burglaries because his murder case was pending.

Whenever he is released, Gayol said he would stay in Chicago.

"This is my home," he said.

 

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The following article appeared in The Atlantic-Journal Constitution,

dated December 22, 2002

Drug courts can be effective alternative

Cobb's new drug court accepted its first case last week, a 19-year-old college student from Tifton arrested with a large amount of marijuana.

Referred as a first offender with strong family support and a low risk of abusing drugs again, the student will undergo 18 months of counseling, weekly court reviews and random drug tests. He will pay fees toward the $2,400 treatment program, and if he concludes the program successfully, charges may be dismissed.

Drug courts are gaining currency as an alternative to incarceration. They are both cheaper than jail and -- when they are well-run -- more effective because they emphasize treatment that may prevent future drug abuse.

Cobb's drug court was too late for the bank executive convicted recently of forging prescriptions for a painkiller addiction after painful back surgery.

"Even though he was a first offender, after his felony conviction he lost his job, his family lost their home, everything," says County Superior Court Administrator Skip Chesshire.

At least 60 percent of Cobb County's estimated 2,300 inmates are held on drug-related offenses, says Sheriff Bill Hutson. With jail space at a premium, and one in 32 adults in the country behind bars, on parole or probation, Hutson is one of numerous law enforcement officials who believe drug treatment is a necessary alternative to incarceration.

There are now nearly a thousand drug courts across the country; more than half were established in the past two years. Cobb's new drug court offers intense judicial oversight of drug treatment for nonviolent adult first offenders. It will accept riskier cases as it gains experience, Chesshire says.

As more jurisdictions open drug courts, it's crucial that they learn to run them well. Overall, drug treatment courts have a 70 percent retention rate of participants, and 73 percent retain or obtain employment, according to the National Drug Court Institute.

But success rates vary among different programs. The federal General Accounting Office reported this year that more information is needed: The Justice Department "continues to lack vital information that the Congress, public and other program stakeholders may need to determine the overall impact of federally funded drug court programs and to assess whether drug court programs are an effective use of federal funds," the GAO said.

Fulton County's drug court, with a million-dollar budget, is an example of a program that may need an overhaul. It has enrolled 1,063 participants since 1997, but only 227 have graduated, and 43 of those graduates have gotten into trouble with the law again.

By contrast, the Camden/Glynn County Drug Court, presided over by Brunswick Judicial Circuit Judge Amanda Williams, has been named a national model by the Justice Department. It operates on a $674,000 budget with 216 current participants.

Since the two-year treatment programs began, the Camden/Glynn court has graduated 88 participants while terminating another 99 for failure to follow the rules of the program; it reports only three felony rearrests of graduates. At a cost of $260 per month per participant (they're required to pay $1,000 toward their treatment), vs. incarceration costs of $45 per day, the results are an enormous improvement on the 50 percent recidivism rate for incarcerated inmates.

The state Department of Corrections is also expanding treatment options in its prisons. It mandates a course for inmates on substance abuse risk reduction; the department also has nearly 900 outpatient treatment slots for probationers and parolees.

The best option, of course, is to offer treatment to minor drug offenders before they graduate to crime's big leagues and the embrace of the Georgia Department of Corrections. Drug courts should get used to the idea that addiction is hard to beat; as long as offenders are making a sincere effort to stick to the rules, drug courts should accept them more than once.

For those drug courts struggling to serve all the offenders who need treatment, there are private services that could be used as backup. Why not sentence an offender to Alcoholics Anonymous meetings or Narcotics Anonymous meetings?

While advocates of drug courts need to make sure their programs are well-run and taxpayers' money spent wisely, the spread of drug courts with an emphasis on treatment is good news. The possibility of redemption gives hope not just to offenders but also to society at large.

 

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The following article appeared in The Gazette, dated 2002.

The Practice of Criminal Law as a Career

By G. Arthur Martin

There is no branch of the Practice of Law which can claim greater importance than that which has to do with the defence of those charged with crime.

In a Criminal Prosecution the entire power of the State is being asserted against an individual.  The heading of an Indictment in the British Commonwealth reads: Her Majesty The Queen against John Doe.  In a Prosecution in a Federal Court in the United States the Indictment reads: The United States of America against John Doe.  Regardless of the title of the proceedings the position of the Defendant is the same and the relative strength and resources of the parties are the same.  It is the duty and responsibility of Defence Counsel to see that the Defendant receives the protection of the Legal safeguards to which he is entitled and that he is not convicted unless and until his guilt is proved beyond a reasonable doubt.

The Defence Counsel in fulfilling this vital role is governed by ethical standards which are well understood and rigidly adhered to by the vast majority of Defence Counsel.  The existence of a strong, vigorous and responsible Defence Bar is essential in a free Society.

The rewards in terms of professional satisfaction are unique for those Lawyers who devote all or a substantial part of their time to the defence of Criminal Cases.  As Harris Steinberg, past President of The National Association of Defense Lawyers in Criminal Cases has written: -

“No other branch of the Law is so intimately or continuously brought into contact with human greed, passions, folly and troubles.  No other Lawyers are so consistently and so often in a position to help poverty-stricken, frightened and ignorant people to avoid looming disaster and disgrace.  Surely to know these conditions and to be in a position to help ameliorate them imposes a responsibility to help.  No other practitioners can experience so pure and heady a distillate of justice as the man who fights for it in contest where the stakes are a man’s life or long years of liberty.”

There is also no other branch of Law in which a Lawyer is so frequently called upon to bear crushing burdens of responsibility.

The Defence Lawyer must frequently make decisions entailing the most momentous consequences for his client and generally he must make them alone.  Not for him is the luxury of a consultation with his Partners in the Office board room where responsibility may be shared.

A magnificent tradition exists among the senior Members of the Defence Bar of willingness to make their judgment and experience available to their Colleagues, and especially to the younger Members of the Bar, without regard to compensation, when they are confronted with some particularly difficult or disturbing problem arising out of a case in which they are engaged.  Time does not, however, always permit this kind of consultation.

The above suggests that certain personal qualities are required by a person who seeks to make a career as a defence Counsel.  He must possess deep insight or sympathy for people in their struggles against the pressures of life.  He must possess integrity and moral courage of a high order.  Sound judgment and broad learning are also essential.  Because the ability to work long hours under severe stress is an essential requisite for success in this field of Law, good health is of inestimable advantage.

I have spoken of the need for broad learning.  Sometimes other Lawyers have said to me:

“How nice it must be to practise in the branch of the Law I which you practise, you only have to know what is in the Criminal Code.”

I am always rather amazed that any of my Professional Colleagues should believe that this is so, if they really do believe it.  A broad knowledge of many branches of the Law and the way I which the business of the modern world is conducted is a necessary part of the working equipment of the Defence Counsel.

As the State has enlarged its power it has more and more employed Criminal sanctions as a means of regulating many areas of economic activity.  The Defence Counsel is likely to find that he spends as much or more of his time defending charges preferred under the Securities Act, the Bankruptcy Act, the Income Tax Act, the Combines Investigation Act and other like Statues, as he does in defending people charged with murder or robbery.

In order to fully understand the elements of some of the offences created by the Criminal Code in relation to property a knowledge of the Law relating to Personal Property, the Law of Contracts, Company Law and the Law relating to Trusts is necessary.

A number of years ago one of the issues arising out of an Indictment for theft was as to the nature of the interest of a Cestui que Trust.  Does the Cestui que Trust have a property interest in the Trust Res or does he merely have a right of action in personam against the Trustee to compel him to carry out the terms of the Turst.

In addition to the personal qualities and the learning to which reference has already been made the Defence Counsel should possess a creative mind.  He must have the ability to see the possibility of applying general principles to unusual circumstances.  He must have the ability to realize the possibilities of certain lines of investigation in relation to the issues in a given case and to construct tenable theories on the basis of the facts at his disposal.

It is an elementary principle that voluntary conduct is an essential ingredient of Criminal Liability, yet the possibility of applying this principle to exclude liability for harms caused in mental states where the mind is not controlling bodily movements did not emerge until comparatively recent times as the defence of Automatism.

The nature of Advocacy has greatly changed in recent times.  Eloquence of the florid type is no longer, if it ever was, essential to successful Advocacy.  Juries are more sophisticated and better informed than they were a generation ago.  The function of contemporary Advocacy is to persuade, not to entertain.

To be effective before a Jury, however, a Lawyer must develop a lucid and attractive style of speaking.  He must develop a skill in marshalling the facts at his disposal in order to achieve the greatest possible effect.  The learning and the skills which the Advocate much possess can only be acquired by industry, experience and dedication of purpose.

I have spoken of the rewards in personal satisfaction for the Lawyer who is prepared to devote at least a substantial part of his life to the Defence of  Criminal Cases.  I have indicated that it also imposes burdens that only the stout hearted will care to shoulder, at least if they are conscious of their responsibility.

One of the advantages of specializing in this field is that it confers a certain kind of independence.  The Defence Lawyer does not depend on any one client or even a relatively few clients who can adversely affect his practice by taking their Legal business elsewhere because of a personal disagreement.  He draws his clients from every social and economic level of the Public, although most of them, especially in the early years, will be poor.  He serves no human master.  Once he has undertaken to defend a case he is in complete charge.  The client may discharge him if he is dissatisfied but while he is acting he must defend the case according to his own judgment of what is the best course to pursue, subject always to the ethical standards of his Profession.

The advantage of independence, however, is not obtained without paying a price.  A lawyer specializing in the field of Criminal Law is not likely to achieve the economic security that may be achieved in other fields of Law.  His Practice is entirely personal; it depends on his health, and his continuing performance, in a branch of the Law requiring physical stamina.  There is very little opportunity to delegate.  This type of Practice does not lend itself to the creation of a large organization where skills, knowledge and attention to detail can be shared or distributed among a number of people.

One of the disadvantages of specializing in the field of Criminal Law is that there are probably only about three or four cities in Canada which are large enough to enable a Lawyer to devote himself entirely to the Practice of Criminal Law.  There are many cities, however, which are large enough to enable a Lawyer to devote a substantial amount of his time to defence work. 

One of the problems connected with devoting a substantial amount of time to Defence work in former times was that Defence Counsel, especially in the early years, must expect to devote a substantial part of his time to the defence of the indigent.  This posed problems for the Lawyer acting as Defence Counsel in Criminal Cases as to where the money was to come from to pay his office overhead and to meet his other responsibilities.  Contemporary Society, however, rightly considers that no person should be denied the assistance of Counsel because he lacks the financial resources to procure a Lawyer for himself.

The Ontario Legal Aid Plan, which is one of the most comprehensive in the world, will undoubtedly profoundly effect the Practice of Criminal Law in this Province.  At the present time there is undoubtedly a shortage of Lawyers who are experienced in the defence of Criminal Cases because of the fact that a relatively few Members of the Legal Profession have chosen to practice in this field.  The establishment of Legal Aid is likely to result in increased attention being given to Criminal Law, not only by Law Schools but by the Legal Profession.  As the number of Lawyers engaged in the Practice of Criminal Law becomes more numerous this branch of the Profession will almost inevitably become more influential.  The task of re-evaluating existing procedure as well as the Substantive Criminal Law constitutes not only an exciting challenge but an opportunity to make a contribution to the administration of Justice in Canada.