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The following article appeared in The
New York Times (online edition) on June 12, 2003:
DNA Evidence Frees 3 Men in 1984 Murder of L.I. Girl
By ELISSA GOOTMAN
 ARDEN CITY, N.Y., June 11
— When 16-year-old Theresa Fusco was found raped and strangled near the
roller-skating rink where she worked, ripples of anxiety spread across Long
Island. Not only was the crime horrific, but it took place around the same
time that two other teenage girls vanished from places nearby.
A few months later, in 1985, prosecutors charged three young men, who were
later convicted of raping and murdering Theresa and sentenced to more than 30
years in prison.
From the beginning, the men insisted they were innocent, saying the case
had been based on a coerced confession and unreliable testimony by fellow
inmates. When the men's lawyers contended in the 1990's that early DNA tests
had eliminated all three as suspects, a judge sided with prosecutors, saying
the tests were not reliable enough to overturn the convictions.
But today, prosecutors joined defense lawyers in asking a judge to do just
that, based on new DNA evidence showing that semen found on the girl's body
was that of another man. In a Nassau County courtroom here packed with the
men's relatives, Judge Victor M. Ort agreed.
The three men, dressed in business clothes, were then handcuffed and returned
to the Nassau County jail in East Meadow. Shortly before 8 tonight, they were
each released on a $300,000 bond, into a knot of television cameras and the
arms of relatives who had stood by them.
"I've been put in hell for 18 years," said one of the men,
Dennis Halstead, 48. "This is my heaven."
But the men's ultimate fate is still uncertain. The Nassau district
attorney, Denis Dillon, stopped short of proclaiming their innocence and said
he was still considering ordering retrials for Mr. Halstead and his two
co-defendants, John Kogut, 39, and John Restivo, 44.
"We're finding at this stage that they didn't get a fair trial,"
Mr. Dillon said at a news conference. "We can't say at this stage that
they didn't do the crime." He said a new investigation was under way to
determine if a killer was still at large.
The men's lawyers, and their relatives, said the new DNA evidence was a
clear sign that the three had no hand in the rape and murder.
"We don't believe that there is any credible evidence at this point linking
them to the crime, and we think this DNA evidence is really very powerful
proof of innocence," said Barry C. Scheck, a founder of the Innocence
Project at the Cardozo School of Law, which uses DNA technology to help free
the wrongly convicted. The group has been involved in this case for a decade,
he said, and it represented Mr. Restivo today.
A telephone call to the home of Theresa Fusco's mother was not returned
yesterday.
On Dec. 5, 1984, Theresa's body was found in a wooded area near the parking
lot of Hot Skates, the roller rink where she had last been seen nearly a
month earlier, in her hometown, Lynbrook. The case drew widespread attention,
in part because it was not unique.
Kelly Morrissey, 15, a friend of Theresa's from Lynbrook, had disappeared
in June 1984, when she was last seen headed for a video game parlor. In March
1985, Jacqueline Martarella, 19, whose body was later found, disappeared in
Oceanside. Neither case has been solved.
That same month, the police arrested Mr. Kogut, 21, a landscaper, in the
killing of Theresa Fusco. Mr. Kogut had a record of petty crime but was
getting his life back on track, and had recently become engaged, said his
lawyer, Terry A. Maroney.
After more than 18 hours of interrogation and sleep deprivation, Ms.
Maroney said, Mr. Kogut gave a videotaped confession saying that near the
roller rink, Theresa had voluntarily gotten into a van with him, Mr. Restivo
and Mr. Halstead, a 29-year-old father of five who owned an aluminum siding
business. The three men had worked occasionally for a moving company that Mr.
Restivo's family owned, lawyers said.
Mr. Kogut, in the confession, said the four had driven to a nearby
cemetery. Mr. Restivo and Mr. Halstead raped Theresa, he said, and persuaded
him to strangle her. They dumped the body near Hot Skates, he said.
Mr. Kogut recanted the confession, but prosecutors used it and the
testimony of several inmates to build a case that two juries found
convincing. All three men proclaimed their innocence at trial, and filed appeals.
About a decade ago, the Centurion Ministries, an organization in Princeton,
N.J., that represents people wrongly convicted of crimes, took on the case.
The Innocence Project also got involved.
In the early 1990's, Mr. Scheck said, three sets of DNA tests were
conducted, comparing semen taken from Theresa's body and preserved on a slide
with the DNA of the three men. Two of the tests eliminated all three men as
sources of the semen, Mr. Scheck said, but one test did not exclude all
three, so a judge ruled that the results could not be trusted.
Then, about two years ago, the slide was analyzed using a more advanced
DNA technique, called Short Tandem Repeat. That test indicated the DNA
belonged to a man other than the three in prison.
"The significance of that finding was huge," Ms. Maroney said.
Lawyers for the men and investigators in the district attorney's office
redoubled their efforts. This year, they made a crucial discovery: a
previously untested vaginal swab, which had not been known to exist. The swab
yielded a DNA profile identical to the one lifted from the slide. "That
was really what turned the corner in terms of our negotiations with the
district attorney's office," Ms. Maroney said.
In prison, Mr. Halstead became a grandfather to four. Two of his children
moved to Florida, saying the memories in Nassau were just too painful. One
daughter married, but one waited until the day her father could walk her down
the aisle. Mr. Restivo's mother, Frida, recently widowed when he was
arrested, spent nearly 20 years preparing packages of candy and tuna. Mr.
Kogut married his fiancée, Lisa, in prison. The relationship faltered when
the situation became too difficult, but now, Ms. Kogut said, they plan to try
to make it work.
"You're not going to get those years back," she said today.
"It's like starting all over again."
The following article appeared in The
Los Angeles Times (online edition) on July 11, 2003:
Nailing a Cop Takes More Than a Tape
By
Earl Ofari Hutchinson
The
moment the Los Angeles County Grand Jury indicted Inglewood Police Officer
Jeremy Morse last year for allegedly beating 16-year-old Donovan Jackson,
Morse's attorney, John D. Barnett, exuberantly declared that Morse would be
acquitted.
At
first glance, that makes no sense. On the face of it, the legal and public
opinion deck seems so stacked against Morse that Barnett should be weeping in
despair. The videotape pumped into millions of homes showed Morse
body-slamming and punching Jackson. The howls of protest were so great that Inglewood's
police chief immediately slapped Morse with a suspension, and the mayor
pronounced him guilty of everything from assault to child abuse.
Even
U.S. Atty. Gen. John Ashcroft, frequently lambasted by civil leaders as soft
on police abuse, called Morse's action "disturbing" and dispatched
his top civil rights honcho to head a federal inquiry. L.A. County Dist.
Atty. Steve Cooley quickly convened the grand jury, which returned the
indictment at breakneck speed.
But
Barnett, who successfully defended one of the four officers charged with
beating black motorist Rodney King in 1991, remembers what others have
forgotten. Videotapes, public outrage and official condemnation don't
automatically mean convictions when it comes to prosecuting police officers.
In
the King case, nearly everyone assumed that the tape and outraged public
opinion sealed the fate of the cops who did the beating. They didn't. The
defense got a favorable change of trial venue and a skeptical jury, presented
favorable witness and officer support testimony, played up King's unsavory
past and benefited from what seemed like a less-than-fierce prosecution
effort. This was more than enough to obliterate the horrific visual impact of
the tape. The officers were acquitted of the major charges in their first
trial.
The
King debacle is dramatic proof of the grave danger of banking on a tape to
convict bad cops. Yet it's not the only obstacle in police abuse cases.
Another is that the jurors who tend to be impaneled are likely to be
conservative, middle-class and nonblack. Many of these jurors bring their own
racial biases to the jury box. They are likely to believe the media-driven
stereotype of young blacks as crime- and violence-prone. Attorneys who defend
cops seek jurors like these because they think they are more likely to
believe the testimony of police and prosecution witnesses than that of black
witnesses, defendants or victims. They got their wish for the Jackson beating
trial. There is only one black on the jury.
Another
problem is that there are no ironclad standards of what is an acceptable use
of force. It often comes down to a judgment call by the officer. In the King
case, defense attorneys turned the tables and painted King as the aggressor
and claimed that the level of force used against him was justified.
In
a trial stemming from a 2001 Cincinnati shooting that ignited three days of
riots, a judge summarily acquitted white Police Officer Stephen Roach,
charged in the death of Timothy Thomas, 19. The judge bought Roach's tale that
he feared for his life and fired in self-defense. Barnett can be expected to
use the same tactic - tarring Jackson as the aggressor.
The
code of silence is another powerful obstacle to convicting bad cops. Officers
refuse to testify against other officers, or they tailor their testimony to
put a police action in the best possible light. For instance, Bijan Darvish,
another police officer on trial with Morse, is charged with falsifying the
report of the Jackson beating. But what if he hadn't been suspected of
doctoring his report? It would have stood as the official version. In
addition, prosecutors are barred on grounds of self-incrimination from using
statements made during internal investigations of officer misconduct. This
knocks out another potentially crucial prosecution weapon.
Federal
prosecutors who retried the officers in the King case learned a vital lesson
from the abysmal failure of local prosecutors to convict them. They did not
rely exclusively on the tape but on expert testimony on the use of force to
prove that the officers went over the top against King. But despite the great
amounts of time, resources and care they devoted to the case, they still
managed to convict only two of the four officers.
Barnett
well knows that nailing cops is a rough task for even the most diligent
prosecutor. He's betting that it will take much more than a tape to nail his
client. It's not a bad bet.
The
following article appeared in The New York Times (online edition) on
September 10, 2003:
Potential Witness in Moxley Case Denies
Knowing Who Killed Girl
By ALISON LEIGH COWAN
TAMFORD, Conn., Sept. 9 — A potential
witness whom defense lawyers want to use to try to reverse the conviction of
Michael C. Skakel in the 1975 murder of Martha Moxley said today that his
statements on the matter had been "blown out of proportion" and
that he did not know who had committed the murder.
The
latest statement by the possible witness, Gitano Bryant, made in a rambling
phone interview that was monitored by his lawyer and coming on the heels of
new information about his own criminal history and legal troubles, is likely
to further cloud the uphill efforts by Mr. Skakel's lawyers to free him.
Their latest efforts suggest that they plan to contend that two young men from
the Bronx may have committed the murder on the night of Oct. 30, 1975.
Last year, 27 years after the crime, Mr.
Skakel was convicted of murdering Miss Moxley, his GreGreenwich neighbor,
when they were both 15. He is now serving a sentence of 20 years to life.
Mr. Skakel's lawyers
said last week that they planned to seek a new trial based on “newly
discovered eeevidence,” much of which they acknowledge comes from interviews
Mr. Bryant granted their private ininvestigator and Mr.Skakel’s cousin,
Robert F. Kennedy Jr.
Mr. Bryant, known as
Tony, conceded today that he has had his own legal problems in recent years,
including a 1993 conviction in Beverly Hills for being an accomplice to a
burglary or robbery, which he sasaid was later reduced to a misdemeanor. He also acknowledged a run-in with state
regulators that
forced him to shut
down his tobacco business this year.
Under any
circumstances, legal experts say, defense lawyers face a high hurdle in
introducing new
evidence to overturn a
conviction.
“There
are innocent people in prison all over the country, and certainly it’s
necessary to have a procedure to give people a chance at a new trial,” said
William Dunlap, a law school professor at Quinnipiac University. “But there will be a fairly heavy burden
on the defense to show that he’s entitled to a new trial, and it doesn’t
happen often.”
The
defense, he said, would probably have to argue that Mr. Skakel was deprived
of “effective assistance of counsel: if it turns out that his first lawyer,
Michael Sherman, had much of the same information at the time of the trial.
“That’s
a reasonably common tactic to try to get a new trial, but it doesn’t usually
work,” said Professor Dunlap, who attended portions of the trial. “The level of importance would have to be
very high to get a new trial, and personally I didn’t see any evidence of
that sort of thing.”
Steven
Duke, a law school professor at Yale, said he would not rule out the
possibility of a new trial, not because of the strength of the new evidence
but because of the weakness of the case against Mr. Skakel, a conviction
obtained largely on circumstantial evidence.
“The case is very weak,” he said.
“There’s real doubt in any reasonable person’s mind as to whether they
got the right guy, and when there’s doubt, courts can find 100 different ways
to tip a case over.”
Today,
Mr. Bryant, a former classmate of Mr. Skakel’s in Greenwich, seemed to want
to distance himself from the whole affair.
“ I was there in Greenwich the night of the murder,” he said on the
phone. “I didn’t see anything.” He added:
“ I didn’t see the murder take place.
I don’t know who killed her.”
Mr.
Bryant would not go into details about his own 1993 conviction other than to
say, “I was in the wrong place in the wrong time.”
He
said that sometime around 1996, he started afresh as a tobacco distributor in
Miami, selling cigarettes made in the Canary Islands and Uruguay.
But
a little over a year ago, he crossed swords with a coalition of state
attorneys general over his failure to make $6 million in required payments
under the 1998 master settlement between the states and much of the tobacco
industry.
Effectively
acting on behalf of the group, the Iowa attorney general accused Mr. Bryant’s
company, Tobacco and Candy International, of failing to pay what it owed,
refusing to open its books and underreporting its sales of cigarettes,
depriving the states of at least $5 million more in payments.
An
enforcement order, signed on May 8 by Mr.Bryant, as the company’s president,
shows that he agreed to “immediately wind down and dissolve” the company
because it lacked “sufficient financial resources to make full payment on its
obligations.”
By
that time, the State of Iowa concluded, and Mr. Bryant agreed, that his
company had neglected to report the sale of 2.5 billion cigarettes between
1999 and 2003 and that the underreporting would have added $25 million to the
$6 million that his company already owed.
Mr.Skakel’s
current lawyers did not return a phone call seeking comment today about Mr.
Bryant’s statement or other recent developments. Jonathan Benedict, the lead prosecutor on the Skakel case, said
prosecutors were “monitoring the situation closely.”
The following article appeared in the
The New York Times (online edition) on June 21, 2003:
If Sanity Is Forced on a Defendant, Who Is on Trial?
By
DAPHNE EVIATAR
Charles
Thomas Sell has a long history of mental illness. He has told doctors that
his gold fillings were contaminated by Communists, and he once called the
police to report that a leopard was boarding a bus outside his office.
When
he appeared at a bail hearing after his indictment for Medicaid fraud five
years ago, he screamed, cursed and spat in the judge's face when she tried to
tell him his rights. After a
diagnosis of "delusional disorder, persecutory type," Dr. Sell was
deemed incompetent to stand trial in April 1999 and was imprisoned in a
psychiatric institution. But could
the government make him take antipsychotic medication so he could be tried?
On Monday the Supreme Court said it was possible, but only in special
circumstances. After setting out a list of relevant factors, including the
probable effects of the drugs and the importance of trying the case, the
court sent it back to the trial court to apply the standards.
While
the court's ruling settled some legal issues, it did little to resolve the
larger philosophical questions in the case: how does one define free thought
and individual identity in an age when technology has provided the tools to
radically alter them? What is the dividing line etween the mind and body?
What is the nature of personal autonomy?
To
many, the idea of forcing someone like Dr. Sell — who has been deemed neither
dangerous nor incompetent to determine his own medical treatment — to take
mind-altering drugs solely for a government proceeding raises the specter of
Orwellian "thought police" or a Brave New World of drug-induced
complacency. "Over himself, over his own body and mind, the individual
is sovereign," John Stuart
Mill wrote in his celebrated 1859 essay, "On Liberty."
In
their brief to the Supreme Court, Dr. Sell's lawyers argued, "The right
to be free from unwanted physical and mental intrusions has long been
recognized as an integral part of an individual's constitutional
freedom." Ethan Nadelmann, the
executive director of the Drug Policy Alliance, which
submitted
a brief in the Sell case, agreed. "If you think about the most
fundamental freedoms in this country," it said, "those freedoms are
ultimately meaningless unless we assume some underlying freedom of
consciousness."
But
defining freedom of consciousness for someone who is mentally ill is tricky.
Do psychotropic drugs distort the individual's personality, the existential
self? Or do they do the opposite, as the government argued, and restore a
delusional mind to its pristine state?
Not even mental health experts agree on this. The American Psychiatric
Association, which supported the government, argued that mental illness is a
physical disease that should be treated like any other. "The brain is an
organ just like the liver is an organ and the heart is an organ," said
Dr. Renee Leslie Binder, a psychiatrist who advised the association on its
court brief. "If someone has an infection, you don't tell them to
breathe
deeply.
You give them antibiotics to fight the infection. When someone has a brain
disease, the main form of treatment is medication."
The
American Psychological Association, though, emphasized the importance of
seeking alternatives. Its brief supporting Dr. Sell said these drugs
"operate on the individual's thought processes and thus implicate
fundamental issues of personhood and individuality."
The
conflict has essentially come up against the age-old mind-body problem. If
the mind is fundamentally different from the rest of the body, the
government's and psychiatric association's purely medical view of the issue
misses the point. "The American
Psychiatric Association has embraced a somewhat reductionist approach to
understanding human life," said Christian Perring, chairman of the
philosophy department at Dowling College, whose research focuses on the
philosophy of psychiatry. "If you understand a person simply in terms of
brain functions, you miss a lot. A large number of philosophers and even
psychiatrists feel that loses sight of understanding a person as a
whole
person and in the context of a larger community."
The
notion of autonomy is also critical to philosophical discussions of the right
to refuse treatment. Although the idea originally referred to political
governance of states, it is now often applied to individuals and understood
as "acting on one's own considered or reflective desires,"
explained William Ruddick, professor of philosophy and adjunct professor of
psychiatry at New York University. Philosophers generally agree that
"autonomy can be overridden when its exercise harms others," Mr.
Ruddick said. Although Dr. Sell's crime arguably harmed others, his refusal
of
medication,
Mr. Ruddick notes, does not. Therefore "it would be a clear violation of
his autonomy to override his refusal in order to adjudicate the admittedly
serious charges against him."
That's
also the view of the Center for Cognitive Liberty and Ethics, a
California-based organization whose mission is to defend mental autonomy in
the face of modern technology. To the center, the forcible injection of
mind-altering drugs is nothing less than government mind-control. Richard
Glen Boire, counsel for the center, said the government is claiming "the
right to make you think a certain way or not be able to think certain
thoughts." He added: "Dr. Sell's case is exactly that. He's posing
no
harm.
They want to use one of these drugs to make him think differently."
Dr.
Sell's lawyers made the same point. "The content of Dr. Sell's thoughts
is precisely the reason the government seeks to medicate him," Dr.
Sell's lawyers wrote to the court. "The very purpose of the
government's
efforts is to change Dr. Sell's thought and speech so that he does not evidence
persecutory delusions."
Dr.
Sell has said that the F.B.I. is plotting to kill him, that the Branch
Davidian Compound at Waco, Tex., was intentionally burned by government
agents, and that the F.B.I. fabricated the criminal charges against him and sent
him to Alaska to silence him. "While Dr. Sell's view of the world
and
political beliefs may seem unusual in these respects," his lawyers
wrote, "until Dr. Sell is adjudged incompetent to make medical
decisions, he must be permitted to think his thoughts and speak his mind even
if the government does not like what he thinks or says."
Indeed,
not only should someone be free to be mentally ill, but there may even be
social benefits to such "diverse thinking," Dr. Sell's lawyers
argue. As they wrote to the court, Ludwig van Beethoven, Isaac Newton and
Ernest Hemingway all suffered from mental illness. They quoted Emily Dickinson:
Much madness is divinest sense
To a discerning eye;
Much sense the starkest madness.
'Tis the majority
In this, as all, prevails.
Assent, and you are sane;
Demur, — you're straightway dangerous,
And handled with a chain."
Yet even if the government succeeds in
convincing a lower court that Dr. Sell should be brought to trial, that
creates a conundrum: what if Dr. Sell was deluded when he supposedly bilked
the government of Medicaid money? In other words, if Dr. Sell's mind is
chemically altered for his
trial,
is the government trying the same person? "You are trying a different
defendant in the sense that the medications can often have a transforming
effect on personality," said M. Gregg Bloche, a psychiatrist and law
professor at Georgetown University.
Indeed,
whether psychotropic drugs change a person's identity is vexing scholars, who
debated the issue at the annual conference of the Association for the Advancement of Philosophy and Psychiatry
last month in San Francisco.
Dr.
Lester Grinspoon, emeritus associate professor of psychiatry at Harvard
Medical School and editor of the Harvard Mental Health Letter, is disturbed
by the implications in this case. "It says in effect that whatever his
disorder is, we can get rid of that for the moment and it's clear that this
man is responsible for the crime. But even if you are treating this man's
paranoid delusions, he is still a paranoid person. His behavior, to the
extent it came out of that paranoia, can't be treated in retrospect. It just doesn't make
sense to make somebody competent to stand trial for a crime he committed
while he suffered from the disorder."
Paradoxically,
Dr. Sell is probably more likely to go free if he does consent to the drugs.
He has already been locked up for more than five years while his objection to
the government's forced medication plan has wound its way to the Supreme
Court. That's longer than he would have
served
if he had been convicted of all fraud charges.
The following article appeared in the
Los Angeles Times (online edition) on July 3, 2003:
Editorial: Fairness on Trial in India
It
was bad enough that India's Gujarat state government did nothing to stop last
year's riots in which Hindus killed more than 1,000 Muslims. It was worse
that state rulers refused to let federal police
investigate
or to move the trials of those accused in the killings to a state where
justice might be done. The result of the first trial stemming from the riots
was as predictable as it was despicable: Twenty-one people accused of arson
in a bakery fire that burned alive Muslims and three Hindus were acquitted
after prosecution witnesses changed their testimony.
Religious
confrontations have plagued India for centuries, although the nation prides
itself on being a secular state. More than 80% of India's billion people are
Hindu; about 12% are Muslim. In
February
2002, Muslims in Gujarat set fire to a train carrying Hindus back from
Ayodhya, a disputed religious site. Hindus retaliated by massacring Muslims.
Police were late to show up and when they finally arrived did little to
protect Muslims.
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