Issue 317
December 17, 2004
The Defence Brief will be on holidays for the next 2 weeks and will appear on January 7, 2005 with Issue 318.
We
would like to wish all of our readers a very happy and peaceful holiday season.
v R. v. Moonias, Ontario Court of Appeal, Judgment rendered December 13, 2004
v Jurors say Peterson’s alibi didn’t add up – Associated Press
v Jurors Say Scott Peterson Should Die for 2 Murders by Louis Sahagun and Ann M. Simmons
v Computer theft hobbles Blake defense – Associated Press
v Iraq War Crimes Trials to Begin Next Week by Nick Wadhams
v Justice Triumphs – Finally by Henry Weinstein
v Lawyer Says He Gave Convicted Reporter Videotape in Corruption Inquiry by Katie Zezima
v Pelosi Guilty in Murder of Lover’s Husband in Hamptons by Patrick O’Gilfoil Healy
*******
The Appellant was convicted at trial of sexual assault and sentenced to two years less a day in custody. At trial, the complainant broke down during her testimony and could not complete giving her evidence in court, despite various attempts to accommodate the complainant. The Crown brought a “Khan” application to admit the complainant’s videotaped statement to police. The trial judge found the statement to be both reliable and necessary and admitted it into evidence. The Appellant was convicted as a result of this statement. The Crown conceded on appeal that without the statement a conviction would not be obtained in this case.
The Court of Appeal granted the appeal, quashed the conviction and entered an acquittal, stating that the trial judge’s reasons revealed three errors regarding the reliability of the videotaped statement. First, although the trial judge addressed the absence of an oath, she failed to address the fact that the police did not attempt to instil the seriousness of the occasion on the complainant and didn’t inform the complainant of the possible consequences if she was untruthful.
Secondly, although the trial judge referred to the passage of three months between the sexual assault and the making of the videotaped statement, she did not address the issue of how the complainant came to provide the statement three months following the event. The Court held that “the absence of any evidence as to the events leading up to the giving of the statement had to have a negative impact on the Crown’s attempt to demonstrate that the statement was sufficiently reliable to warrant its admission.”
Thirdly, the Court held that the trial judge made no reference to the potential motive of the complainant, revealed during the course of the statement, to falsely accuse the appellant of the crime. The complainant made it clear on the videotape that she strongly disliked the appellant, and that she blamed him for the suicide of a friend. The Court found the complainant’s statements to be admissible as state of mind at the time the statement was given. The state of mind should have had a significant impact on the trial judge’s assessment of whether the videotaped statement met threshold reliability, according to the Court.
The Court ruled that the statement should have been excluded since the Crown did not show that the circumstances surrounding the taking of the statement were sufficiently indicative of the reliability of the statement.
******
The following article appeared on CNN.com on December 14,
2004:
Jurors
say Peterson's alibi didn't add up
Death
sentence recommended in killing of wife, unborn son
REDWOOD CITY, California (AP) -- Upon learning of his death
sentence, Scott Peterson sat defiantly still and tight-jawed, the same vacant
expression he wore throughout a murder trial in which he never spoke.
And to hear the jurors tell it,
Peterson's apparent lack of emotion -- from the day his wife disappeared
through the last day of testimony two years later -- was the final piece that
doomed him.
The jury had been told that
Peterson did not wear his emotions on his sleeve. But juror Richelle Nice told
ABC's "Good Morning America" on Tuesday that she noticed Peterson
becoming emotional during the penalty phase of his trial.
"Is it just that he doesn't
show emotion for Laci and Conner?" she asked.
She said her thoughts were with
Laci Peterson and the fetus she carried.
"They can rest in
peace," she said. "Justice was done."
A cheer went up outside the
courthouse Monday as the jury announced its decision after 11 1/2 hours of deliberations
over three days.
The same six men and six women who
convicted Peterson of murdering his pregnant wife recommended that he be sent
to death row at San Quentin State Prison outside San Francisco, the infamous
lockup overlooking the bay where Laci Peterson's body was discarded.
Inside, Laci Peterson's mother,
Sharon Rocha, cried quietly -- her lips quivering after the verdict was read.
Scott Peterson's mother, Jackie, showed no apparent emotion.
Three jurors said at a news
conference afterward that they couldn't let go of the fact that the bodies of
Laci Peterson and her fetus had washed ashore a few miles from where Scott
Peterson claimed he went fishing the day she disappeared.
Juror Greg Beratlis said the jury
was convinced of Peterson's guilt by "many, many things," but added:
"Those bodies were found in the same place. That played in my mind, over
and over."
Most unsettling, the jurors seemed
to agree, was Peterson's dispassionate demeanor.
"He has no remorse,"
juror Michael Belmessieri said Tuesday on CBS' "The Early Show."
"He lost his wife and his
child -- it didn't seem to faze him," said juror Steve Cardosi. "And
while that was going on ... he is romancing a girlfriend. That doesn't make
sense to me. At all."
Nice even took issue with
Peterson's manner Monday in the moments before the sentence was read, chatting
casually with his attorneys. "Today -- the giggles at the table," she
said. "Loud and clear."
Peterson was convicted November 12
of one count of first-degree murder in the death of Laci, and one count of
second-degree murder for the killing of her eight-month old fetus.
The jury had two options in deciding
the 32-year-old former fertilizer salesman's fate: life in prison without
parole or death by injection.
Judge Alfred A. Delucchi will
formally sentence Peterson on February 25. The judge will have the option of
reducing the sentence to life, but such a move is highly unlikely.
But Peterson still might not be
executed for decades -- if ever -- and it can take years for even the first
phase of the appeals process to begin. Since California brought back capital
punishment in 1978, only 10 executions have been carried out. The state's
clogged death row houses 641 prisoners.
In a brief news conference after
the verdict, defense attorney Mark Geragos said he was "very
disappointed." "Obviously, we plan on pursuing every and all appeals,
motions for a new trial and everything else," he said.
The tale of adultery and murder
set off a tabloid frenzy as suspicion began to swirl around Scott Peterson in
the days and weeks after Laci's disappearance. The heat was turned up when
Amber Frey, the massage therapist who Scott Peterson was romancing on the side,
came forward.
The jury's decision followed seven
days of tearful testimony in the penalty phase. In arguing for death last week,
prosecutors called Peterson "the worst kind of monster" and said he
was undeserving of sympathy. Geragos begged of jurors: "Just don't kill
him. That's all I am asking of you. End this cycle."
Prosecutors spent months
portraying Peterson as a cheating husband and cold-blooded killer who wanted to
murder Laci to escape marriage and fatherhood for the pleasures of the
freewheeling bachelor life.
“They had no reason to doubt it
was Scott who did what he did,” said Laci Peterson’s stepfather, Ron Grantski,
the only member of her family to speak to reporters. “He got what he deserved.”
Defense attorneys argued during
the trial’s guilt phase that Peterson was framed and that the real killers
dumped Laci’s body in the water after learning of Peterson’s widely publicized
alibi. The defense fought hard to save Peterson’s life, calling 39 witnesses
over seven days in the penalty phase.
When the time came for a verdict
and sentence recommendation, jurors were convinced Peterson desperately wanted
out of the married life.
“I don’t think divorce was an
option,” Beratlis said. “I think it was freedom.”
Heather Richardson, the maid of
honor at Scott and Laci Peterson’s wedding, said she thought jurors were right
to think Scott Peterson killed his pregnant wife because he wanted freedom.
“The child was the turning point
for him,” she told NBC’s “Today” show Tuesday. “He would have never divorced
her.”
* * * * *
The
following article appeared on latimes.com on December 14, 2004:
Jurors
Say Scott Peterson Should Die for 2 Murders
The defense
has several options for appeals, but experts say the chance of success is
remote.
By Louis
Sahagun and Ann M. Simmons
Times Staff
Writers
REDWOOD
CITY, Calif. — A divided jury came together here Monday to decide that Scott
Peterson should die for murdering his wife and unborn son, voting for death
shortly after reviewing photos of the decomposing bodies of his victims — Laci
Peterson, missing her arms and head, and Conner Peterson, barely recognizable
as a fetus.
When the
jury had stopped deliberating Friday, foreman Steve Cardosi recalled Monday,
six were in favor of death, two were for life in prison without possibility of
parole, and four were uncertain.
Soon after
they reconvened Monday morning, the panel asked to review evidence, including
the photographs of the corpses and one of a pregnant Laci clad in a maternity
outfit, smiling broadly, her hands folded on her belly.
"I
thought before we made a final vote … people really needed to look at
that," Cardosi said. "Seeing those on the big screen when it's 40
feet away from you … is a little different than putting them down in front of
you and seeing them, and seeing that it is, or was, a baby…. We all passed them
along, and everybody looked at them."
The jurors
took a vote and then sent a message to Judge Alfred A. Delucchi, saying they
had reached a decision.
Laci
Peterson's mother smiled as a court clerk read the verdict. Defense attorney
Mark Geragos wrapped an arm around his client. But the courtroom was mostly
silent, the mood subdued, even as a crowd gathered outside the San Mateo County
courthouse cheered.
Peterson sat
expressionless, as he did throughout most of the trial, though he did tear up
last week when a friend testified that he was a good man.
The jurors,
who a month ago convicted Peterson of first-degree murder in the slaying of his
wife and second-degree murder in the slaying of their unborn son, came to their
decision following 12 hours of deliberation over three days. The body of Laci
Peterson and that of the fetus she was carrying washed ashore along San
Francisco Bay four months after she went missing on Christmas Eve 2002.
Three jurors
who agreed to speak with reporters after the verdict was read said they were
never influenced by the hoopla surrounding the much-publicized case and that
they all presumed Peterson innocent when the case began. When it ended, they
agreed, he deserved to die.
"Scott
Peterson was Laci's husband, Conner's daddy — the one person that should have
protected them. And for him to have done it ," said juror Richelle Nice,
her voice trailing off.
The entire
process, the jurors said, had been physically and emotionally draining, but
"it doesn't get any harder than today," said Cardosi, a firefighter
and paramedic from Half Moon Bay.
When the
jury, which had been sequestered in a hotel, failed to announce a decision
Friday, some court watchers speculated that was good news for Peterson, that a
jury returning a death verdict would do so quickly.
The jurors
said Monday that the panel was simply being careful. As with every jury, the
jurors devised rules on how to proceed. Eventually, they imposed time limits on
their remarks after some jurors, liberated from days of listening, went on for
30 minutes when they had the floor.
"Any
time you put 12 people in a room together and expect them to agree — to think
that would happen easily — is naive," Cardosi said.
Until
Monday, the jurors never knew one another's real names. They went by numbers or
nicknames.
Juror Greg
Beratlis, a youth sports coach from Belmont, said the last six months had
included "many sleepless nights, because you want to make the right
choice…. It's a man's life." And after he voted to take that life, Beratlis
said, he looked Peterson in the eye so Peterson would understand his decision
was sincere.
Peterson
never took the stand, and Nice, a mother of four who came to call the dead baby
Conner "Little Man," said that was fine with her.
"We
heard him," she said. "For me, a big part of it was at the end — the
verdict — no emotion. No anything. That spoke a thousand words — loud and
clear…. I heard enough from him."
Cardosi said
he had hoped Peterson might take the stand, offer some reason, some insight.
"I
still would have liked to see, I don't know if remorse is the right word,"
Cardosi said. "He lost his wife and his child — it didn't seem to faze
him. While that was going on … he is romancing a girlfriend."
Prosecutors
had argued that a future as a suburban father with a boring job — he was a
fertilizer salesman in Modesto — had haunted Peterson. In the summer of 2002,
with his wife seven months pregnant, Peterson met Fresno massage therapist
Amber Frey, a slim, blond single mother. The two slept together the day they
met and, prosecutors said, Peterson began plotting to kill his wife.
Delucchi
could reduce the sentence to life in prison without parole. He is scheduled to
pronounce sentence Feb. 25.
If Delucchi
does sentence the 32-year-old Peterson to die, he would be housed on death row
at San Quentin State Prison, which overlooks the bay where Laci Peterson's body
was discarded.
It would
likely be years, even decades, before Peterson would be put to death. In the 26
years since California reinstated capital punishment, the state has carried out
just 10 executions. "Obviously, we're very disappointed," Geragos
said after the verdict. "Obviously, we plan on pursing every appeal and
motions for a new trial and everything else."
Defense
attorneys may have several avenues to pursue — including alleging juror
misconduct — following months of testimony and undisclosed jury-room dramas
that led to three panelists being dismissed and replaced with alternates. But
the challenges, experts agree, will not be easy.
"The
chances of a successful appeal are truly remote," said veteran San Mateo
County prosecutor Chuck Smith. "Only about 3% of such cases ever get
reversed in California."
Many
observers believe Peterson's best hope on appeal may lie in the removal of
jurors. One of the jurors removed was Cardosi's predecessor as foreman.
Cardosi said
the panel "went through quite a bit of time that was very
ineffective," shortly before the first foreman was removed. "I think
the group decided to change forepersons." When that happened, the foreman
"mentioned that he was no longer comfortable in the process," Cardosi
said, adding that he did not know why the judge released him.
The jury's
decision Monday for the death penalty demonstrated how much had changed in six
months.
Geragos, the
lead defense attorney, went from boldly claiming that he would reveal Laci
Peterson's real killers — which he never did, other than to hint at a satanic
cult or people at a park — to begging for his client's life.
"Raising
those kinds of expectations when he didn't need to was a big mistake,"
said Peter Keane, a professor at Golden Gate University's law school in San
Francisco. "He lost credibility with the jury."
Geragos
initially had the Peterson jury "eating out of his hands," but the
jury seemed to tire of his jokes, and the early rapport faded, said Loyola Law
School professor Stan Goldman.
"Mark
didn't get a jury that was exactly his cup of tea, and I don't think he knew
how quite to handle them," Goldman said.
The prosecution,
meanwhile, took a case that lacked any direct evidence tying Peterson to the
crime and began laying it out in a fashion some court observers deemed
monotonous and unpersuasive. But by the end, the jury had found the
prosecution's case to be a damning litany of circumstantial evidence, and
convicted Peterson after six hours of deliberation.
Testifying
for the prosecution in the penalty phase, Laci Peterson's mother, Sharon Rocha,
brought at least eight jurors and some court personnel to tears.
She said she
was haunted by the mental image of her daughter's body in its casket, headless
and armless.
Prosecutor
Dave Harris called Peterson "the worst kind of monster."
One of
Peterson's attorneys, Pat Harris, grasped for words to dispute that
characterization.
"I wish
there was a phrase that I could give you that could turn this around and make
you believe there is good, there is real, real good in this person,"
Harris said. "But I don't have that phrase … that's up to you to decide.
So I'm going to ask you … I'm going to beg you, begging you to go back there
and please spare his life."
Some
observers questioned the defense team's tactic of calling witness after witness
who said that the Scott Peterson they knew could not have committed such a
crime — in effect challenging the jury's wisdom — and testifying about such
esoterica as how much he loved golf.
Beginning
shortly after Laci Peterson's disappearance, millions of Americans came to
follow the case, mostly through cable-television court programs.
The
investigation and later the trial played out like a serialized mystery. Scott
Peterson emerged as the lead character, shown to be a liar, a philanderer and
ultimately a murderer.
"I
think this case took off because he had an entire town looking for Laci
Peterson instead of sitting down for Christmas dinner," said Loyola Law
School professor Laurie Levenson.
During the
trial, some of the most damaging evidence came from Frey, who began cooperating
with police soon after Laci Peterson went missing.
As police
searched for his wife, Peterson called Frey repeatedly, telling wild lies of
his activities. On New Year's Eve, as his supporters held a candlelight vigil
for his missing wife, Peterson phoned Frey. He told her he was in Paris,
watching fireworks near the Eiffel Tower. In reality, he was in Modesto.
Four months
after Laci Peterson vanished, the bodies washed up just a mile from where
Peterson said he had gone fishing the day she disappeared — right where a tidal
expert said they would be likely to come ashore.
"Those
bodies were found in the one place he went prior to her being missing,"
juror Beratlis said. "I played in my mind over and over conspiracies: Was
somebody trying to set up Scott? Was somebody after Laci? It didn't add
up."
* * * * *
The
following article appeared on CNN.com on December 2, 2004:
Computer
theft hobbles Blake defense
Judge to
decide Monday whether to postpone trial
LOS ANGELES
(AP) -- Robert Blake's lawyer said Thursday he hopes to go forward with his
client's murder trial despite the theft of a computer that contained what a
court representative described as "the heart and soul of the defense
case."
The computer was taken Wednesday
-- the same day the jury was seated -- from the apartment of M. Gerald Schwartzbach,
who is defending the actor against charges that he murdered his wife, Bonny Lee
Bakley, in 2001.
Superior Court Judge Darlene
Schempp held a quick hearing on the issue. Noting that all parties had not
gotten much sleep, she postponed a motions hearing until Monday, when opening
statements had been scheduled. She did not say whether those statements would
proceed.
James E. Blatt, appointed by the
judge to oversee the police investigation of the burglary, said after the hearing,
"Certain items were taken that could have a very negative effect if they
get in the wrong people's hands."
Schwartzbach declined to comment
on whether he had copies of the material on the computer missing from his
Sherman Oaks apartment, which was serving as his office.
Appearing shaken as he spoke
outside the courthouse, the defense attorney said that no matter what results
from the investigation, "We intend to try this case as soon as we possibly
can."
"We are satisfied that we
have a fair jury and we want this trial," Schwartzbach said.
He declined to speculate on who
might have committed the burglary, as did district attorney spokeswoman Sandi
Gibbons.
The judge appointed Blatt, an attorney,
to oversee any searches by officers investigating the burglary, to make sure
attorney-client privilege was not threatened.
"I believe there will be a
very intense and thorough investigation," Blatt said. "In that
computer was the heart and soul of the defense case." The judge will
decide Monday whether to postpone the case or go forward, he said.
Blatt said the main thing taken
was a computer, but golf clubs were also stolen, and an apartment adjacent to
Schwartzbach's was entered. He said it appeared that the doors were forced with
a crowbar or screwdriver.
Blake, the 71-year-old star of the
old "Baretta" TV series, married Bakley after DNA tests showed he was
the father of her baby. Bakley was shot May 4, 2001, in a car parked near a
restaurant where she and Blake had just dined. He is charged with murder and
solicitation of murder.
The jurors were sworn in Wednesday
after a prosecutor and defense attorney used numerous challenges to remove
panelists from the jury box. They did not have to state a reason for the
peremptory challenges.
The seven men and five women range
in age from 24 to 78. Six alternates also were selected Wednesday.
* * * * *
The
following article appeared on chicagotribune.com on December 14, 2004:
Iraq
War Crimes Trials to Begin Next Week
By NICK
WADHAMS
Associated
Press Writer
BAGHDAD,
Iraq -- Iraq will bring top figures of Saddam Hussein's ousted regime to court
next week for the first time since they appeared before a judge five months
ago, and formal indictments could be issued next month. Many have been in
custody for more than a year and have not met with lawyers, prompting Saddam's
attorneys to cry foul.
The regime
figures face charges for crimes allegedly committed during the 35-year Baath
Party dictatorship, including war crimes, mass killings and the suppression of
the 1991 Shiite rebellion. Saddam, who was arrested a year ago Monday, will not
be among those to appear in court next week, The Associated Press has learned.
Tuesday's
surprise announcement by Iraq's interim Prime Minister Ayad Allawi came only
days after government leaders said the Special Tribunal was not yet prepared to
begin the trials. Iraqi leaders, working with U.S. officials, need to train
judges and prosecutors and sort through stacks of evidence, all under the
pressure of a deadly insurgency that has attacked at will.
In the
latest violence, insurgents killed seven people Tuesday in the second suicide
bombing in two days outside Baghdad's fortified Green Zone. The military also
announced that two U.S. Marines from the 1st Marine Expeditionary Force based
in western Iraq died in combat in Baghdad province Monday, bringing the number
of Marines killed to 10 in three days.
On
Wednesday, a U.S. soldier died from gunshot wounds sustained during a convoy
mission
south of Baghdad a day earlier, the military said. The soldier belonged to the
1st Corps Support Command and was shot near Forward Operation Base Kalsu.
Also, a U.S.
Marine was killed in action Tuesday in Anbar province, according to a statement
released Wednesday by the 1st Marine Expeditionary Force. Anbar is a vast
province west of Baghdad containing the battleground cities of Ramadi and
Fallujah.
To help
secure the country, Gen. Richard Myers, chairman of the Joint Chiefs of Staff,
announced in Baghdad that the U.S. military will have a record-high 150,000
troops in Iraq through the Jan. 30 elections and "a little bit
after."
The
government had said in early December that troop levels would be raised from
138,000 to 150,000 to help secure next month's vote, which many Iraqis fear
could be targeted by militants opposed to the occupation and bent on derailing
the political process. Asked when exactly the troops would pull out, Myers
responded: "That will be determined by events on the ground."
Allawi's
government has been under pressure recently to show progress on the trials. His
announcement came a day after the U.S. military acknowledged that eight of Saddam's
11 top lieutenants went on hunger strike over the weekend to demand jail visits
from the International Committee of the Red Cross. The officials were eating
again by Monday, the military said.
The prime
minister also may have an eye toward Iraq's Jan. 30 elections. Allawi
officially confirmed he would join the race when his office released a terse
statement saying he would unveil his list of candidates for the vote on
Wednesday.
It was not
immediately known if next week's court hearings would be open to reporters. But
officials have said the trials will be as transparent as possible.
"I can
now tell you clearly and precisely that, God willing, next week the trials of
the symbols of the former regime will start, one by one, so that justice can take
its path in Iraq," Allawi told the interim National Council, without
saying who would be tried.
He appeared
to be referring to investigative hearings, which come ahead of the trials.
In
Washington, State Department spokesman Richard Boucher said the tribunal was
still preparing the cases and compiling evidence.
"There
is a court process that involves investigative judges and a hearing for some of
the former regime officials that is under preparation that we would expect to
be held next week," Boucher said. "At that point, the accused and
their attorneys do go to court, although that's not the actual trial."
A Western
official in Baghdad, speaking on condition of anonymity, agreed that the
hearings next week would be preliminary. The official said among the first of
those to appear next week would likely be Saddam's notorious right-hand man,
Ali Hassan al-Majid, known as "Chemical Ali." The official suggested
indictments could follow soon after.
The hearings
will still be important since they would be the first since Saddam and his top
lieutenants appeared before the special tribunal in July, when a judge read
preliminary charges including war crimes, mass killings and the mass
displacement of Kurds in the 1980s.
Lawyers for
the defendants complained they had not had time to consult with their clients,
and said that any proceedings under such conditions would be seen as political
show trials.
Saddam's
Jordan-based lawyers say they have not even seen the former dictator.
"The
Iraqi court will be in violation of the basic rights of the defendants, which
is to have access to legal counsel while being interrogated and indicted,"
Ziad al-Khasawneh said.
Allawi also
announced the arrest of a cousin of Saddam's, Izzi-Din Mohammed Hassan
al-Majid, who fled Iraq in 1995 and was granted indefinite leave to remain in
Britain in 2000. He was arrested in Fallujah and will be put on trial as soon
as possible, Allawi said.
The car bomb
that hit Tuesday sent a huge plume of smoke into the air, and occurred in
nearly the same place as one on Monday that killed 13 people and wounded 15.
The location is near the Harthiyah gate on the western edge of the Green Zone,
which has been repeatedly targeted by bombings and mortar and missile attacks
since it became the headquarters of the occupation authorities in May 2003.
Little was
known about the deaths of the two Marines. The announcement came after the
military said seven other Marines died in action Sunday in Anbar, a vast
province west of Baghdad including the battleground cities of Fallujah and
Ramadi, and a 10th was killed Saturday.
The deaths
brought to nearly 1,300 the number of American troops killed in Iraq since the
invasion in March 2003.
As of
Wednesday, at least 1,304 U.S. military personnel have died since the beginning
of the war in March 2003, according to an Associated Press count.
* * * * *
The
following article appeared on latimes.com on December 12, 2004:
Justice
Triumphs -- Finally
His faith
sustained Tom Goldstein as he served 24 years for a murder he didn't
commit. His
own legal study helped free him.
By Henry
Weinstein
Times Staff
Writer
On his first
morning of freedom after serving 24 years in prison for a murder he didn't
commit, Tom Goldstein headed for the one place he felt comfortable — a law
library.
As an
inmate, Goldstein spent thousands of hours in prison law libraries throughout
California researching cases and statutes that eventually led to his release
earlier this year.
"The
library was my one comfort in prison, no matter how bad things got," said
Goldstein, 55. "I felt I was very different than most of the people in
prison. It was difficult."
Now working
as a paralegal, he finds comfort in the same law books and in the new life he
is forging. His remarkable path to freedom has made him a celebrity of sorts, a
source of inspiration for prisoners across California and an example of how
religion sustains people when there seems to be little reason for hope.
Two weeks
ago, Goldstein also sued the officials he believes are responsible for his
wrongful 1980 murder conviction, which was based largely on the testimony of a
notoriously unreliable jailhouse informant and an eyewitness who later
recanted.
Since his
release last April, he has given a speech at the Simon Wiesenthal Center in Los
Angeles, met with the president of the Southern California branch of the
American Civil Liberties Union and even visited a federal appeals judge in his
Pasadena chambers.
Goldstein,
who said his Jewish faith played a major role in sustaining him throughout his
lengthy incarceration, also participated in his first Seder in a quarter of a
century and carried the Torah at a Yom Kippur service at Beit T'Shuvah, a
synagogue in West Los Angeles.
Goldstein
has become particularly close to the lawyers who now represent him. The first
clothes he wore upon his release were borrowed from attorney David McLane.
Attorney Ron Kaye took him for his first meal hours after he walked free. They
went for beer and tacos at La Parrilla in Boyle Heights.
Since then,
Goldstein went home to a family reunion in Kansas and saw siblings for the
first time in 25 years. He also cast a ballot for president for the first time
since 1976: "I have yet to vote for a candidate who won," he said.
Goldstein
drives a used Ford bearing the bumper sticker "Practice Random Acts of
Kindness" and regularly uses a laptop computer and a cellphone.
But his life
still has a tentative quality, he said. Goldstein is living with a family who
agreed to take him in because they were friends of Kaye. And Goldstein readily
acknowledges that he is still learning to cope on the outside.
"It's a
little hard adjusting socially. It's hard to trust people," he said. He
also said he still fears the Long Beach police.
"In
some respects, I still feel like I'm in prison," said Goldstein,
emphasizing that he is wary of going out at night.
To help stay
on track, Goldstein continues to meditate — a practice he began more than 20
years ago in prison — and has made friends at the Transcendental Meditation
Center in Beverly Hills.
"I
really have to give credit to the TM program. It changed my life," he
said. Goldstein said that since he started meditating, "when something
stressful happens, it doesn't overwhelm you." He said TM has "helped
take the focus" off his bitter feelings.
He is angry
about what happened to him, but he carries it softly, according to people who
have met him. Among them is Rabbi Yitzchak Etshalom, director of Project Next
Step at the Simon Wiesenthal Center.
Goldstein
spoke at one of Next Step's meetings in September. The rabbi said Goldstein
told the audience how "his faith gave him the strength to continue. People
were very impressed by his lack of bitterness and the acceptance he has
developed within himself."
Asked if he
could forgive the people who were responsible for his wrongful mprisonment,
Goldstein replied, "At the very least, I'd like an apology. When I receive
their apology, I'd probably be willing to forgive them."
Goldstein
sued four former Long Beach police officers in federal court in Los Angeles
late last month. His lawyers assert that the officers violated his civil rights
by helping a jailhouse informant concoct a story that Goldstein confessed to a
1979 murder. The suit also contends that the officers improperly influenced an
eyewitness to testify against Goldstein.
Years later,
the witness recanted. Goldstein is seeking damages from the police officers,
two Los Angeles County prosecutors, the county and Long Beach.
Goldstein is
armed with rulings from five federal judges that his constitutional rights were
violated during his trial. The judges concluded that police and prosecutors
failed to tell the defense that the key eyewitness had doubts about the
identification of Goldstein and that they had given significant benefits to the
jailhouse informant in return for his testimony.
Thomas Lee
Goldstein moved to Long Beach in his mid-20s after graduating from high school
near Kansas City and serving three years in the Marine Corps, including time in
Vietnam.
By his own
admission, Goldstein had been a lackluster student. As he grew older, he
decided he might want to be a mechanical engineer and enrolled at Long Beach
City College to study chemistry and physics.
Goldstein
lived in an $85-a-month efficiency apartment for three years. Then, after being
evicted on Nov. 1, 1979, he moved into a garage where he installed a bed and a
hot plate. Along the way, he had acquired a minor criminal record — two
convictions for drunkenness and one for disturbing the peace. Two nights after
Goldstein moved into the garage, and just yards away, John McGinest was killed
by four shotgun blasts.
"I
never knew McGinest," Goldstein said. "I didn't know anything about
this killing until the police came to my garage." Police searched his place
and found nothing relevant.
Goldstein
agreed to take a polygraph test. The results were inconclusive. He was
arrested.
Police never
found the shotgun. No blood, fingerprints or other physical evidence was found
to link the victim to Goldstein.
What
happened next stunned him. The prosecution case against Goldstein rested on two
witnesses — jailhouse informant Edward F. Fink, who had a heroin habit and
testified against 10 cellmates in return for deals on some of his 35 arrests —
and eyewitness Loran Campbell.
Fink said
Goldstein confessed to him while they briefly shared a cell. Goldstein said it
was a lie. Campbell said he thought Goldstein was the man he saw running by his
apartment house carrying a rifle at the time of the murder. Several other eyewitnesses
said the killer was black or Mexican American and larger than Goldstein.
Goldstein
was flabbergasted when a jury found him guilty of murder and sentenced him to
27 years to life.
"I was
shocked…. Even when I was sentenced, I said to my attorney, 'Are they really
sending me to prison?' " he recalled in a lengthy interview.
Goldstein
soon became an itinerant in the California prison system, spending time in
Chino, San Quentin, Folsom, Soledad, Solano, Tehachapi and Pleasant Valley,
among other institutions.
He was small
and he was Jewish, which made him vulnerable in an environment where, he said,
"there were just a handful of Jewish prisoners" and a lot of
"hate Jews" sentiment.
He was
periodically accosted about his ethnicity, particularly after he tattooed a
Star of David on his left arm.
"I had
a siddur," a Hebrew prayer book, he said. "I am what I am. I saw
Jewish guys who had swastikas because they wanted to fit into the environment.
I didn't want to fit in."
Goldstein
said he did not back down, other than occasionally covering his tattoo with a
shirt to avoid confrontations with neo-Nazis. He said some potential
adversaries stayed away from him because they "respected the crime:
murder."
His initial
appeals received cursory denials.
"That's
when I realized I would have to do" a lot of work on the case, he said,
"if I was ever going to get out."
After he
spent nearly a decade in prison, a dramatic development in the outside world
created new legal possibilities for Goldstein. In 1990, the Los Angeles County
Grand Jury issued a report documenting widespread use by prosecutors of false
testimony by jailhouse informants between 1979 and 1990.
Armed with
that issue, Goldstein filed a new challenge to his conviction. One federal
judge turned him down, but the U.S. 9th Circuit Court of Appeals agreed to give
him a hearing.
"I did
the oral argument by phone from Tehachapi," he said. "I did a really
terrible job."
A year
later, his plea was rejected. At that point, it appeared that Goldstein had run
out of legal challenges. Then one day in the mid-1990s, he recalled,
"someone on the prison yard said, 'Maybe you could get some pro bono
assistance.' " So Goldstein wrote to his original attorney, who said he
couldn't help him but referred him to another lawyer.
Eventually,
he got to a lawyer who knew a lot about Edward Fink and had reports from
various law enforcement officials. One corrections officer said Fink was a
"con man who tends to handle the facts as if they were elastic." A
deputy district attorney said simply, "Fink is a fink."
Armed with
that information, Goldstein submitted another legal challenge. He vaulted the
tough hurdle of winning the right to have a second habeas corpus petition
considered, and the federal public defender's office was appointed to represent
him.
Terry
Rearick, the office's chief investigator, tracked down the eyewitness Loran
Campbell, who recanted his testimony. All this material was presented by public
defender Sean Kennedy to U.S. Magistrate Judge Robert N. Block in Los Angeles.
In November
2002, Block recommended that Goldstein's conviction be overturned, saying
evidence presented to him "unquestionably undermines confidence in the
verdict."
U.S.
District Judge Dickran Tevrizian later affirmed that conclusion, as did a
three-judge panel of the U.S. 9th Circuit Court of Appeals last December.
Still, it was four more months before Goldstein was freed.
One of the
first jobs Goldstein got after being released was working for Pasadena attorney
Dan Stormer on a federal case challenging conditions in Orange County jails.
"He
clearly is very bright, and he clearly was very injured by prison,"
Stormer said. "There is a psychic harm that envelops him. You can almost
feel the pain of losing 24 years of your life. It is palpable."
Nonetheless,
Goldstein is optimistic. He hopes to win his lawsuit with a big enough damage
award so that he can return to the Midwest and start a new life.
"I want
to own a large piece of land and raise fish," he said. "I think I
have developed a way to raise fish with no mercury. If I can do that, it would
be interesting to me."
After
spending years in cramped prison cells, Goldstein said, he longed for open
spaces to enjoy some of life's pleasures at his own pace.
"I want
to have a place of my own," he said, "to sit out and listen to Janis
Joplin, the Doobie Brothers and the Grateful Dead."
* * * * *
The
following article appeared on nytimes.com on December 2, 2004:
Lawyer
Says He Gave Convicted Reporter Videotape in Corruption Inquiry
By Katie
Zezima
BOSTON, Dec. 1 - A lawyer in Providence, R.I., has come forward to
say he was the source of an F.B.I. videotape that led to the criminal
conviction of a television reporter who had refused to identify the person who
gave it to him, according to court documents filed on Wednesday.
The lawyer, Joseph Bevilacqua Jr.,
admitted under oath that he provided the reporter, Jim Taricani, with a
videotape that was part of an investigation into widespread corruption in
Providence government. Mr. Taricani was convicted of criminal contempt on Nov.
18 for refusing a judge's order to name the source of the tape.
Mr. Taricani, who broadcast the
tape in 2001, on WJAR-TV, an NBC affiliate, said he refused to break a promise of
confidentiality to the source.
Mr. Bevilacqua, who represented
the city tax assessor in the corruption investigation, told the special
prosecutor who is investigating the leak, Marc DeSisto, on Nov. 24 that there
was never a promise of confidentiality between him and Mr. Taricani.
Mr. Bevilacqua said he signed a confidentiality waiver in 2002 that let Mr. Taricani disclose his identity and urged Mr. Taricani to do so several times from then until the morning of his