Issue 322
February 4, 2005

INDEX

Articles

v The Prosecutor Never Rests by Peter Slevin

v Cross-Examination for a Drama That Puts the Death Penalty on Trial by Adam Liptak

v Courts feel fallout from sentencing decision by Associated Press

v Wrongful convictions plague justice system by Stephen Thorne

v For the Wrongly Convicted, New Trials Once the Cell Opens by Sharon Waxman

v Support War Crimes Trials for Darfur by Jack Goldsmith

v Why Should We Shield the Killers by Nicholas D. Kristof

v Innocent man can sue his lawyer by Nicole MacIntyre

v Jury awards $6.6 million to man ‘framed’ by FBI by Matt O’Connor

v At Celebrity Trials, the Spotlight Is Sharp but Shifting by Charlie LeDuff

v Jackson Juror Prospects Asked About Race by Tim Molloy

v Lawyers in Kobe Bryant Trial Get Stern Warning to End Delay by Kirk Johnson

The following article appeared on washingtonpost.com on February 2, 2005:

The Prosecutor Never Rests

Whether Probing a Leak or Trying Terrorists, Patrick Fitzgerald Is Relentless

By Peter Slevin

Washington Post Staff Writer

CHICAGO

If Osama bin Laden ever stands trial, there's a prosecutor in Chicago waiting to face him down. As a driven young lawyer in the 1990s, Patrick J. Fitzgerald built the first criminal indictment against the man who would become the world's most hunted terrorist. Both men have moved on, you might say, but Fitzgerald still imagines that fantasy date before a judge.

"If you're a prosecutor, you'd be insane if you didn't want to go do that," Fitzgerald says in the well-appointed conference room of the U.S. attorney's office here. "If there was a courtroom and they said someone has to stand up and try him, would I hesitate to volunteer? No. I'm not saying I'd be the best person to try him at that point, but I'd be lying if I told you I wouldn't be interested."

A solidly built former rugby player who enjoyed getting muddy and bloody well into his twenties, Fitzgerald is nothing but confident in his own skin. Just as he does not fear bin Laden, he seems to fret little that he is now tangling simultaneously with the Bush White House and the New York Times, two of the nation's most powerful and privileged institutions.

Fitzgerald, 44, is the special prosecutor investigating the leak of covert CIA operative Valerie Plame's name to columnist Robert Novak. The gifted son of an Irish doorman makes no bones about challenging the establishment. His office is also prosecuting former Illinois governor George Ryan and loyal associates of Chicago Mayor Richard Daley on influence-peddling and corruption charges.

He sees his task as getting to the bottom of things in ways as creative as the law allows. The law doesn't say you can't question a sitting president about his contacts or an investigative reporter about confidential sources. So Fitzgerald has done both, including quizzing Bush for more than an hour in the White House last June. His assiduous demands for answers from journalists alarms critics who believe he has created the greatest confrontation between the government and the press in a generation.

The Times editorial page has hammered Fitzgerald, saying that "in his zeal to compel reporters to disclose their sources, Mr. Fitzgerald lost sight of the bigger picture." His demand that Times reporter Judith Miller and Time magazine correspondent Matthew Cooper be forced to testify prompted the paper to call the case "a major assault" on relationships between reporters and their secret sources, the very essence of reporting on the abuse of power.

Fitzgerald is too politic to talk back, at least before he has wrapped up the case. A federal appeals panel in Washington is due to rule any day on whether the reporters must testify, and his work on the leak investigation is not done. But he appears to wonder what the fuss is all about. He says freely that he is zealous, a term he translates as passion within limits.

James B. Comey, deputy attorney general and unofficial president-for-life of the Pat Fitzgerald Booster Club, says no high-profile prosecutor ever provided less evidence that he was "doing something wacky."

"What's been interesting is seeing the media accounts and the columnists portray him as some sort of runaway prosecutor. That makes me smile," says Comey, who is largely responsible for Fitzgerald getting the Plame assignment. "Because there is no prosecutor who is less of a runaway than this guy."

The Untouchable

Fitzgerald frequently makes crime-fighting headlines in Chicago, where he took over the U.S. attorney's office just 10 days before 9/11. What's surprising is that he got the job at all. A New Yorker born and bred, Fitzgerald knew hardly a soul in Chicago, which was precisely the idea. Sen. Peter Fitzgerald (no relation) was looking for an outsider to battle the state's notoriously corrupt political apparatus.

The recently retired Illinois Republican tells a story about back in Al Capone's day, when Col. Robert McCormick, the imperious publisher of the Chicago Tribune, called FBI Director J. Edgar Hoover and demanded that he send someone to Chicago who could not be bought.

Hoover sent the untouchable Eliot Ness.

Now, as then, the U.S. attorney's job has the gloss of patronage. The late Chicago mayor Richard J. Daley used to say the U.S. attorney in Chicago is one of the three most important people in the state, and Peter Fitzgerald said he wanted "someone who couldn't be influenced either to prosecute someone unfairly or protect someone from being prosecuted unjustly."

So the senator, who as the state's senior Republican had the right to recommend a candidate to the White House, went to one of Hoover's successors for advice.

"I called Louis Freeh and said, 'Who's the best assistant U.S. attorney you know of in the country?' He said, 'Patrick Fitzgerald in the Southern District of New York.' " The senator then called Mary Jo White, who ran the New York office. Same question. Same answer.

At the time, Patrick Fitzgerald was trying suspects in the 1998 bombings of the U.S. embassies in Kenya and Tanzania. He thought the call from a senatorial aide was a practical joke by one of his buddies. But as soon as their interview was over, the senator knew he had his man.

"I thought, 'He is the original Untouchable,' " Peter Fitzgerald says. "You could just see it in his eyes that he was a straight shooter. There were no levers that anyone had over him. He had no desire to become a partner in a private law firm. He has no interest in electoral politics. He wanted to be a prosecutor."

World Class

For years, Fitzgerald has avoided receiving mail at his apartment because of the threat of a letter bomb from one murder-minded defendant or another.

The staff of the 9/11 commission called him one of the world's best terrorism prosecutors. He convicted Sheik Omar Abdel Rahman in the 1993 World Trade Center bombing and all four defendants in the embassy bombings, which had left 224 people dead. He extracted a guilty plea from Mafia capo John Gambino and became an authority on bin Laden, whom he indicted in 1998 for a global terrorist conspiracy that included the African bombings.

"His thoroughness, his relentlessness, his work ethic are legendary," says terrorism expert Daniel Benjamin, a former member of the National Security Council.

Seeing Fitzgerald in action, says Los Angeles lawyer Anthony Bouza, a college classmate, is "like watching a sophisticated machine." Colleagues speak in head-shaking tones of Fitzgerald's skills in taking a case to trial. A Phi Beta Kappa math and economics student at Amherst before earning a Harvard law degree in 1985, he has a gift for solving puzzles and simplifying complexity for a jury.

He's no slouch at stagecraft, either. At the trial of a Mafia hit man, the defense argued that a ski mask -- part of what Fitzgerald called a "hit kit" that included surgical gloves, a gun and hollow-point bullets -- was really just a hat. (The defense also said the surgical gloves were for putting ointment on the defendant's ailing dog.) During closing arguments, Fitzgerald startled the jury by rolling up one leg on his lawyerly dark suit.

"These are just shorts, ladies and gentlemen," he said, according to one account. "These are just shorts."

Into the Scrum

People who know Fitzgerald describe him as anything but a stuffed shirt. During a key moment in one New York trial, he slipped a note to his co-counsel, who interrupted questioning to read it to himself. It said, "Is there beer in the fridge?"

Fitzgerald's parents, born on opposite sides of Ireland's County Clare, met in the United States. They raised their son in Flatbush and guided him to a scholarship at a Jesuit high school. He worked as a school janitor in Brooklyn to make money for college and spent summers opening doors at an upscale co-op building on East 72nd Street in Manhattan. (His father worked at a building on East 75th, just off Madison Avenue.) It is part of Fitzgerald lore that he bit his tongue when rich apartment dwellers talked down to him as "just the doorman."

After law school, he spent three years in private practice before fleeing to the prosecution side. In the New York days, his married friends chided him about his workaholic, overachieving, hopelessly bachelor life. One time, visiting the small Brooklyn studio where Fitzgerald lived, a lawman noticed papers piled on the gas stove. Don't worry about the fire hazard, Fitzgerald told him -- "I've never turned it on."

"The advantage he had over me," Comey says, "was he was much smarter and he had no life. He could sit there and never go home. Fitz would go in there and just sit and read through files. It would almost be as if he was photographing them.

"Fitzgerald did get out to exercise, and he even learned to scuba dive, an image his friends still cackle about.

"I'm certified as a scuba diver, but I can't really swim," Fitzgerald explains. "I'm very good at sinking."

Above all, Fitzgerald, who is 6 feet 2 and weighs 215 pounds, played rugby, a sport defined by toughness and camaraderie. He played at Amherst, at Harvard, and for several years in Manhattan. "You get every stress out of your system. You kick the ball, catch the ball, tackle, be tackled. At the end of the game, there's no unspent energy left. I did get bloodied a fair amount."

He adds, "That was not the goal."

'Nice Place'

Fitzgerald is careful to be apolitical in his targets and his public life alike. He registered to vote as an Independent in New York, only to discover, when he began receiving fundraising calls, that Independent was a political party. He re-registered with no affiliation, as he did later in Chicago.

He spit fire last year when reporters asked whether the racketeering indictment of Muhammad Hamid Khalil Salah, a fundraiser for the Islamic militant group Hamas, was timed to boost President Bush's reelection campaign. The case was trumpeted first by Attorney General John Ashcroft.

"I am not running for an election. I'm not part of a political party," Fitzgerald said at the time. "The election is irrelevant to this case. The reason we brought this case now is we're ready to proceed."

Nor has Fitzgerald signaled where his own ambitions lie. He insists that he has already advanced further than his imaginings, but he is clearly aware of his emerging star status. Asked about the notion of becoming FBI director after Robert Mueller, another prosecutor who quit private practice to put bad guys behind bars, he laughs. "That's probably Director Mueller when he's having a bad day, trying to unload it on somebody else."

He did not say he was uninterested, just that he is not thinking beyond his current job.

In the high-profile Chicago job, he still works killer hours and he chairs the attorney general's advisory panel on terrorism. And while he will not publicly discuss details of love, politics or religion, others say his social life has improved, along with his apartment. "It's a really nice place. My wife walked in and said, 'I know Pat's got a girlfriend,' " says Comey. "Fitz wouldn't know eggshell from burnt orange, but he's got a life."

Fitzgerald says he remembers where he came from and pinches himself when he realizes where he is.

"I'm very indebted to my parents. They were very hardworking, straight, decent people. The values we grew up with were straight-ahead. We didn't grow up in a household where people were anything but direct," Fitzgerald says. "I'm hoping that if you're a straight shooter in the world, that's not that remarkable."

'Off Course'?

Try telling that to the publisher of the New York Times.

Arthur Sulzberger Jr., defending his reporters, blasted Fitzgerald and said, "The government's investigation into the Valerie Plame case has moved dangerously off course." Not only has the liberal editorial page sliced into Fitzgerald, but conservative columnist William Safire called Fitzgerald a "runaway Chicago prosecutor" and warned that a pair of his investigations are "this generation's gravest threat to our ability to ferret out the news."

President Richard Nixon kept an enemies list and waged an epic fight over the publication of the Pentagon Papers, settling only when the Supreme Court backed the right of The Washington Post and New York Times to publish. Not a few presidents have tried, usually fruitlessly, to identify leakers and punish the reporters all too glad to publish those leaks.

But Fitzgerald has ignored the old saw about arguing with someone who buys ink by the barrel. In both the Plame case and an unrelated terrorism investigation, he is trying to force Times reporters to reveal their confidential sources, a quinella not attempted in modern memory.

"In all his cases, Pat keeps the blinders on and goes forward to where the facts lead him," says David Kelley, the acting U.S. attorney in New York and former head of the Justice Department's 9/11 Task Force. "He is not influenced by anything except by those things that ought to influence him. I wouldn't call it zeal. I would call it courage."

Many legal experts say Fitzgerald has the law on his side in the Plame investigation. The Supreme Court ruled narrowly in 1972 that reporters could be required to testify to a grand jury if the prosecutor proved a legitimate need.

Chief U.S. District Judge Thomas Hogan backed Fitzgerald and ordered Miller and Cooper to testify. Fitzgerald's tactics are not "a fishing expedition or an improper exercise of prosecutorial authority," he said.

Zeal or courage? Where one side sees dangerous meddling, another sees creativity. The divergent takes are evident in the Plame investigation, a quest to find out who leaked her name and why. Faced with confidentiality pledges that reporters consider sacrosanct, Fitzgerald got one source, vice presidential Chief of Staff I. Lewis Libby, to grant journalists a limited release from their confidentiality pledge.

Reporters, including two from The Washington Post, ultimately answered a narrow list of questions regarding their conversations with Libby. One Fitzgerald backer called it "elegant thinking that I would expect from him." But some journalists worried that a secret source brave enough to expose wrongdoing could now be pressured by prosecutors to reveal his cooperation with reporters.

Even more troubling to many press analysts is Fitzgerald's effort to review the telephone records of Miller and fellow Times reporter Philip Shenon in another case. The prosecutor wants to know how the Times learned of the impending search of two Islamic charities then under investigation by Fitzgerald's office. The Times called the charities for comment, allegedly alerting them to the raid, Fitzgerald says.

In a recent court hearing, Fitzgerald told U.S. District Judge Robert W. Sweet that he is sensitive to First Amendment concerns. He said the reporters are not his targets: "We want to find out who leaked national security information."

Times attorney Floyd Abrams countered, "If we start down the road of permitting a federal prosecutor to obtain secret information without which journalists cannot function, the world will change for the worse because confidential sources will no longer be available."

The Chicago Tribune, which has cheered Fitzgerald's crime-fighting energy, published a Jan. 23 editorial titled "Mr. Fitzgerald, Back Off." It called his pursuit of the reporters "a direct affront" to the First Amendment rights of the free press.

Of the prosecutor's assertions of sensitivity, the paper scoffed, "That's rubbish."

Playing Hardball

"Do I have zeal? Yes. I don't pretend I don't," Fitzgerald says. "As a prosecutor, you have two roles: Show judgment as to what to go after and how to go after it. But also, once you do that, to be zealous. And if you're not zealous, you shouldn't have the job. Now sometimes 'zealous' becomes a code word for overzealous and I don't want to be overzealous. I hope I'm not."

Media advocacy circles are not the only places where Fitzgerald's enthusiasm has been noted with alarm. In an unusually bitter fight that surfaced in late January, Fitzgerald drew angry criticism from a Chicago federal judge who said one of Fitzgerald's attorneys improperly delivered secret grand jury material to a private attorney in a civil case.

U.S. District Judge James F. Holderman demanded an investigation of Fitzgerald and several prosecutors. Fitzgerald blazed back, charging in an unusually pointed brief that the judge had "displayed a disturbing lack of objectivity." He accused him of "petty harassment" of prosecutors and asked an appeals court to remove the judge from the case because of a conflict of interest involving his wife.

The question of zeal surfaced yet more prominently in two Chicago terrorism cases -- investigations into the Global Relief and Benevolence International foundations, which inspired a less than flattering analysis by the 9/11 commission staff.

The staff report last year said the federal government's treatment of the two charities raised "substantial civil liberty concerns" and revealed a critical difference between asserting "links" to terrorists and proving concrete support. In the case, Fitzgerald again had the backing of Ashcroft, who jetted to Chicago in October 2002 with a media contingent in tow and vowed to halt "the source of terrorist blood money."

But the trial judge and the 9/11 commission staff concluded that Fitzgerald failed to prove that Enaam Arnaout, the Benevolence executive director, had provided financial support to al Qaeda, as the indictment had alleged. A federal judge, referring to the prosecution's evidence, said the defendant appeared primarily a victim of guilt by association.

On the day the trial was to begin, Arnaout pleaded guilty to a fraud charge. Judge Suzanne Conlon made clear in ordering Arnaout to prison for 11 years that he had not been convicted of a terrorism crime.

Fitzgerald said in the interview that he is not disappointed by the plea bargain that ended the case, only by what he considers Arnaout's later failure to tell what he knows. Of Conlon, he said, "She thought we hadn't connected the dots. I thought we had."

"When you're a pitcher, you throw the ball over the plate and if you think you threw a strike and the umpire says it's a ball, it doesn't matter how much you think it's a strike. You put your case on. You don't walk into court out of fear that when you do it, either a judge will disagree with some of what you say or a defense attorney will call you overzealous."

* * * * *

The following article appeared on nytimes.com on January 27, 2005:

Cross-Examination for a Drama That Puts the Death Penalty on Trial

By Adam Liptak

The six stories you are about to hear are true," an announcer says at the beginning of "The Exonerated," a little Off Broadway play whose outsize impact will only grow when Court TV presents a filmed version of it tonight at 9. "Every word was taken directly from a court document, deposition, testimony or letter."

The gripping, understated excerpts tell the stories of six people released from death row. The play, which has been presented around the country by a rotating cast of celebrities, has helped reshape the debate about the death penalty. People who once argued about the morality of executing the guilty now discuss whether the capital justice system can be trusted to separate those deserving death from the wholly innocent.

The play infuriates many supporters of the death penalty. They say it takes liberties with the truth in matters small and large, that several people portrayed in it may be free but are nonetheless guilty, and that the play is part of a movement that means to redefine the very concept of innocence.

"Court TV wants people to believe that people are regularly sent to death row for crimes of which they are factually innocent," said Joshua Marquis, the district attorney in Astoria, Ore., whose critique of "The Exonerated" is to be published in The Journal of Criminal Law and Criminology this spring.

The play, by Jessica Blank and Erik Jensen, suggests, for instance, that all its subjects have been unequivocally exonerated. But two former prisoners portrayed in it - Sonia Jacobs (played by Susan Sarandon) and Kerry Max Cook (Aidan Quinn) - pleaded guilty to murder in exchange for sentences of time served, after questions were raised about the evidence originally used to convict them and after appeals courts ordered them retried.

They are thus legally guilty even though they say they were factually innocent. Other people - recall O. J. Simpson - are legally innocent because prosecutors failed to prove them guilty beyond a reasonable doubt. But like Mr. Simpson, who was later held responsible for two killings in a civil trial, they may nonetheless be, in fact, guilty.

Bob Balaban, who directed the play and the Court TV production, says that critics are missing the point.

"I didn't want us to say that everyone was innocent," he said. "Prosecutors have a perfect right to say that maybe some of these people are guilty. They should also say, 'Maybe some of the people we prosecuted weren't really guilty.' "

The play's very title reflects a semantic war about the meaning of exoneration. Many opponents of the death penalty use the word exonerated to describe everyone released from death row for prosecutorial misconduct or because the evidence against them was shaky. But prosecutors who support capital punishment say the term should be reserved for a much smaller group.

"If a governor grants a pardon, I think you can call that an exoneration," Mr. Marquis said. "If the State of Texas pays $1 million for a wrongful conviction, that's an exoneration. If the prosecutor agrees the person didn't do it, that's an exoneration. It means the person didn't do it."

At the very least, "The Exonerated" has helped focus the debate.

"The play has been incredibly powerful," said Stephen B. Bright, the director of the outhern Center for Human Rights and a death penalty opponent. "It's a subject that's not on people's minds a lot. I've seen the reactions of people in the audience. People gasp."

Some of them come away, Mr. Bright added, with an appreciation for paradox.

"They send you to death if you say you're innocent," he said. "They let you go if you say you're guilty."

In an effort to discredit "The Exonerated," prosecutors have been conducting research. In his article, Mr. Marquis examines, for instance, a transcript and audiotape of police questioning Ms. Jacobs in 1976.

A review of those materials revealed minor but insignificant inconsistencies between the actual conversations and the play's script.

"There probably was an 'of' and 'and' we dropped or where we connected things," Mr. Balaban said, "but it's verbatim transcript."

Police questioning that is presented as belligerent in the play is substantially milder on the tape.

"We did take some license," Mr. Balaban said, but he called the inconsistencies trivial.

Ms. Jacobs's story is, in any event, a good illustration of the difficulty of determining guilt in the legal or factual senses.

In the early morning on Feb. 20, 1976, Phillip Black, a state trooper, came upon a green Camaro parked at a rest stop on Interstate 95 in South Florida. Five people, including Ms. Jacobs and her two children - a 9-year-old boy and an infant girl - were asleep inside. Mr. Black spotted a gun, grabbed it and ordered the driver, Walter Rhodes, to get out.

The trooper ran a radio check on Mr. Rhodes, who turned out to be a felon on parole. That upped the tension. The trooper ordered the man in the front passenger seat, Jesse Tafero, to get out as well. Before he did, he passed a second gun to Ms. Jacobs, according to an account to which Ms. Jacobs agreed at her plea hearing. Mr. Tafero, who had a substantial criminal history, was Ms. Jacobs's boyfriend and the father of her younger

child. Both guns belonged to Ms. Jacobs, according to the agreed account.

According to Mr. Rhodes's testimony at trial, Mr. Tafero and Ms. Jacobs each shot at the trooper and a second man, a friend of the trooper, killing both. Mr. Rhodes received a life sentence in exchange for his testimony; he was released on parole in 1994.

Prosecutors said some of the shots could have come only from Ms. Jacobs, who was by then the only adult inside the car. Holly R. Skolnick, one of Ms. Jacobs's lawyers, disagreed.

"Neither Jesse nor Sunny did any of the shooting," she said in a recent interview.

Mr. Rhodes's story has shifted back and forth over the years. In 1992, two years after Mr. Tafero was executed for his role in the shootings, a federal appeals court reversed Ms. Jacobs's conviction, saying that prosecutors had withheld important evidence, and ordering a new trial.

That gave rise to the plea deal.

"We don't believe she was exonerated by any stretch of the imagination," said Ron Ishoy, a spokesman for the state attorney in Fort Lauderdale, Fla., "as that plea she signed shows."

Ms. Skolnick said Ms. Jacobs's decision to plead guilty was a difficult one.

"She still has second thoughts about it because she wanted to be exonerated," Ms. Skolnick said. "How can you argue with freedom?"

The largest question prompted by "The Exonerated" is about the death penalty itself.

"Opponents of the death penalty are trying to change the debate," said Ward A. Campbell, a supervising deputy state attorney general in Sacramento. "They don't think they can prevail on the straight moral question. They glamorize what is a very minute number of cases in which defendants who have been sentenced to death were exonerated."

Almost no one denies that about 30 factually innocent people have been freed from death row. Even critics of "The Exonerated" tend to concede that some of the people in it are wholly innocent. Mr. Marquis said "two or three" of the people depicted were authentically exonerated.

"It's cause for concern," Mr. Marquis said. "But it's the difference between a problem being epidemic or episodic."

* * * * *

The following article appeared on boston.com on January 28, 2005:

Courts feel fallout from sentencing decision

Appeals by prisoners swell following ruling

By Associated Press

WASHINGTON -- Thousands of criminals are filing for reduced sentences. Backlogged courts are asking lawyers to slow down their appeals. Judges say they're confused about what to do.

Two weeks after the Supreme Court threw out mandatory sentencing guidelines, federal courts are just beginning to grapple with the consequences. And judges say it may take months, if not years, to sort through thousands of appeals and piece together a new sentencing system.

"It's a much more stressful exercise now," said US District Judge Harold Baer of New York, who sentences dozens of white-collar criminals and drug offenders each month. "We're all desperately trying to follow the Supreme Court decision. But what does that mean?"

Congress enacted the federal guidelines two decades ago to ensure justice would be meted out more equally around the country. In place since 1987, the guidelines give judges a range of possible punishments for a given crime and make it difficult for judges to go outside those boundaries. Many states have adopted similar systems for their local courts.

In the Jan. 12 ruling, the Supreme Court said making the guidelines mandatory violated a defendant's Sixth Amendment right to a jury trial because they call for judges to make factual decisions that affect prison time, such as the amount of drugs involved in a crime.

Under the ruling, the guidelines now are only advisory; as a result, federal judges are free to sentence convicted criminals as they see fit, but they may be subject to reversal if appeals courts find them "unreasonable."

The burden of defining that legal standard will fall on the nation's 13 federal appeals courts, which received 400 new cases Monday after the Supreme Court ordered them to reconsider defendants' sentences for crimes ranging from securities fraud to theft and drug possession.

Those 400 cases are petitions from defendants who wanted their sentences reviewed after justices struck down a similar sentencing guidelines plan in Washington state last June, putting the federal guidelines in doubt. Hundreds of other appeals are pending at the appeals court level.

The appeals courts already are feeling the heat. At least two, the Ninth Circuit in San Francisco and the Second Circuit in New York, are asking defense attorneys to hold off on filing some sentencing appeals for now, with exceptions for emergency cases.

Court officials cited an already congested docket in asking defendants to wait until the appeals court judges can offer some guidance on the definition of "reasonable" sentences in a few test cases in coming weeks.

Carmen Hernandez, a vice president of the National Association of Criminal Defense Lawyers said, "Defendants sitting in prison are calling us wanting to know how the ruling affects their case. We're having to tell them to wait."

Edward Becker, a senior judge for the Philadelphia-based US Court of Appeals for the Third Circuit, said his court still is determining whether to delay some appeals. The main challenge, he said, will be determining whether the ruling should apply retroactively to tens of thousands of prisoners nationwide whose appeals already have run their course.

The US Court of Appeals for the First Circuit, which includes, Massachusetts, Maine, New Hampshire, Rhode Island, and Puerto Rico, has not taken any action to delay appeals, according to Susan Krueger, a spokewoman for the circuit. She said there has been an increase in sentencing appeals since last June, when the Supreme Court issued an earlier ruling raising questions about the constitutionality of federal sentencing guidelines.

Many judges are sticking close to the guidelines, but some are showing some leniency for first-time offenders.

* * * * *

The following article appeared on OttawaCitizen.com on January 25, 2005:

Wrongful convictions plague justice system

by Stephen Thorne

OTTAWA (CP) -- Wrongful convictions continue to plague justice systems in Canada and elsewhere despite studies and reports on the issue, says a report by federal, provincial and territorial prosecutors and police.

"Various commissions and studies in Canada and around the world have provided valuable insight into the systemic causes of wrongful convictions and into what has gone wrong in individual cases,'' says the report.

"What is startling, however, is that some problems, themes and mistakes arise time and time again, regardless of where the miscarriage of justice took place.''

Fault lies with the conduct of police, prosecutors, defence lawyers, judges and forensic scientists, and they are not confined to proceedings in the courtroom, says the report.

Like disasters, miscarriages of justice are rarely the result of a single mistake or event but almost always the result of a series of events, says the report presented Tuesday at a conference of justice ministers.

There are no simple solutions, it says, and responsibility to prevent wrongful convictions lies with all participants in all jurisdictions of the criminal justice system.

"Police officers, Crown counsel, forensic scientists, judges and defence counsel all have a role to play in ensuring that innocent people are not convicted of crimes they didn't commit,'' says the report.

"As useful as commissions of inquiry may be, they usually come many years after the fact. The goal of all justice system participants must be to prevent wrongful convictions from occurring in the first place.''

The 155-page report says common factors come up in wrongful convictions in Canada and elsewhere, devoting a chapter to each with 40 recommendations:

a.. Tunnel vision, or "the single-minded and overly narrow focus on an investigation or prosecutorial theory,'' is the leading cause of false convictions.

b.. Mistaken eyewitness identification and testimony can come from ``the most well-meaning, honest and genuine eyewitness.''

c.. A New York study found 35 of the first 130 post-conviction exonerations made on DNA evidence, or 27 per cent, involved false confessions.

d.. In-custody informers are notoriously unreliable yet still factor in a significant percentage of cases that end in wrongful convictions.

e.. While not proof that one person or another committed a crime, DNA evidence has proven many cases of false conviction.

f.. Refinements and education in forensic evidence and expert testimony are needed.

The reporting panel led by Rob Finlayson, Manitoba assistant deputy attorney general, concludes that the criminal justice system must be constantly on guard against factors that can contribute to miscarriages of justice.

Focusing primarily on serious crimes such as homicides, its recommendations target everyone from individual police officers and prosecutors to police and prosecution services.

The report stresses the need for continuing education and urges each prosecution service to develop a comprehensive written plan to educate its prosecutors on the causes and prevention of wrongful convictions.

It also recommends creation of a virtual resource centre on the issue for police and prosecutors and establishment of a permanent prosecutors' committee on the prevention of wrongful convictions.

"The risk of error always exists in any human endeavour,'' it says. ``In the justice system, the consequences of a wrongful conviction can be tragic.

"The working group hopes its recommendations, if implemented, will go a long way towards reducing the risk of future wrongful convictions and ensuring that the innocent are acquitted and the guilty convicted.''

* * * * *

The following article appeared on nytimes.com on January 25, 2005:

For the Wrongly Convicted, New Trials Once the Cell Opens

By Sharon Waxman

PARK CITY, Utah, Jan. 24 - This month marks one year since Nick Yarris was released from prison after having spent 23 years behind bars, many of them in solitary confinement and on death row, for a murder he did not commit.

DNA testing proved his innocence. Upon his release, he was given no money, no housing, no training, no therapy. And no apology.

But he is not an angry or bitter man. In fact, Mr. Yarris, 43, is remarkably composed and articulate in discussing his fate and that of others who have been released after wrongful conviction. They are featured in a new documentary, "After Innocence," at the Sundance Film Festival, where viewers leaped to their feet, many in tears, at the end of the first screening on Saturday.

"What were my choices?" he said after seeing the film for the first time, when asked how he could seem so sane. "I could, A) be really devastated and angry and let them continue to own me, or B) I could have fun. B sounds better."

He continued: "I realized at some point that everyone in my family was waiting for me, hoping for me. The lowest insult would be if I came out destroyed, a broken man, bitter and angry. And it was survival. My survival technique was to become a good man."

For all his eloquence, Mr. Yarris is far from on solid ground. He still has no job, no permanent home and no money. Still, he is in much better condition emotionally than many of the other exonerees featured in the film, all of whom were released, often after years of struggling to get DNA testing in their cases, with no amends by the state.

(More than a dozen states have passed laws providing compensation for convicts who are later exonerated, though most of the men in the film, including Mr. Yarris, who is from Pennsylvania, are from states that have none.)

Jessica Sanders, the film's director as well as its co-producer and screenwriter, met 30 exonerees at a conference in 2002. "I was so moved by the stories of these men, and shocked that nothing was being done for them," she said. "I knew that a film had to be made."

Showtime developed the project, though the producers are also seeking a theatrical distributor.

Ms. Sanders was introduced to the men through the film's co-producer and writer, Marc Simon, who as a law student volunteered at the Innocence Project, a nonprofit group run by Barry C. Scheck and Peter J. Neufeld that focuses on freeing the innocent, frequently through DNA testing.

While that effort continues - the group has helped free more than 150 wrongfully convicted inmates in the last 13 years - there has been little attention to what happens to the men after their release. Some depend on welfare and on their already burdened families.

"Without their families, these guys would be homeless," Mr. Simon said.

Wilton Dedge, a soft-spoken, blond-haired man, was released five months ago after serving 22 years in prison in Florida for sexual battery and burglary. In 2001, DNA tests of a hair, a central piece of material evidence in his conviction, proved it was not his, but the prosecution continued to fight to keep him in jail. More advanced DNA testing of semen won his release last year.

"If the state had their way, I'd still be in jail," Mr. Dedge said quietly, nursing a beer at the post-screening lunch. "They don't want to admit they messed up."

Mr. Dedge learned welding in prison and since his release has found some part-time work for a tree service. "All I got was a basic form letter apologizing for what happened, not admitting they did anything wrong," he said. "But it seemed pretty hollow, after all the names they called me in court. They weren't man enough to step forward and apologize to my face. That disappointed me."

Last October, Mr. Yarris traveled to London to address the British Parliament about the death penalty and his proposal for an economic embargo against Pennsylvania. While there, he met Karen Karbritz, 30. They plan to be married in May, and he hopes to start a new life with her in England.

"I'm going to go, to try my best to have the things I wanted," he said, adding, "I was waiting, hoping for a chance just to live. Now the greatest respect I can have for her for trusting me is by loving her, and to thank her just for holding me."

* * * * *

The following article appeared on washingtonpost.com on January 24, 2005:

Support War Crimes Trials for Darfur

By Jack Goldsmith

A U.N. commission chaired by the former president of the Yugoslav war crimes tribunal, Antonio Cassese, is expected to issue its recommendation this week on whether the International Criminal Court should investigate human rights abuses in the Darfur region of Sudan. If the Cassese commission does propose an ICC investigation, a Security Council referral will be necessary for the ICC to proceed, because Sudan has not ratified the ICC treaty.

This would place the Bush administration in a bind. The administration has condemned the Darfur abuses as genocide. But at the same time, it strongly opposes the ICC, which it believes is staffed by unaccountable judges and prosecutors who threaten politically motivated actions against U.S. personnel around the globe. These concerns explain why the United States has opposed ratification of the ICC treaty and has sought bilateral assurances that other nations will not send U.S. nationals to the ICC. News reports suggest that the Bush administration would oppose a Security Council referral on Darfur out of fear that it would confer legitimacy on the international court.

In fact such a referral would be consistent with U.S. policy on the ICC. The United States has never opposed ICC prosecutions across the board. Rather, it has maintained that ICC prosecutions of non-treaty parties would be politically accountable and thus legitimate if they received the imprimatur of the Security Council. The Darfur case allows the United States to argue that Security Council referrals are the only valid route to ICC prosecutions and that countries that are not parties to the ICC (such as the United States) remain immune from ICC control in the absence of such a referral.

This course of action would signal U.S. support not only for the United Nations but for international human rights as well, at a time when Washington is perceived by some as opposing both. And it would give the United States leverage in seeking genuine sanctions against Sudan, especially with France, which for oil-related reasons has quietly resisted U.S. efforts on Darfur. France would have a hard time opposing a package of sanctions that included U.S. support for an ICC referral. Opposition by China and Russia would be harder to overcome but would at least make clear to the world that those two powerful nations are even more opposed to the ICC than the United States.

U.S. support for a Security Council referral might also point the way to a compromise with European nations that are anxious to secure U.S. backing for the international court but oppose state-to-state deals that overtly immunize U.S. citizens from ICC jurisdiction. Agreement on the need for Security Council approval for ICC prosecutions would provide a more principled way for Europe to alleviate U.S. concerns about rogue ICC prosecutions. Critics would decry this approach as a double standard for Security Council members, who can protect themselves by vetoing a referral. But this double standard is woven into the fabric of international politics and is the relatively small price the

international system pays for the political accountability and support that only the big powers, acting through the Security Council, can provide.

The fears of "legitimizing" the ICC are overstated. It's too late to kill the International Criminal Court. The Security Council (including the United States) presupposed the ICC's authority when it voted in 2002 and 2003 to immunize U.N. peacekeepers from ICC prosecutions. And the institution is now up and running, preparing for cases already referred to it. For better or worse, the ICC is not going away anytime soon.

Another potential obstacle is a 2001 congressional bar on U.S. cooperation with the ICC. But this statute exempts acts taken pursuant to the president's constitutional authority, and it specifically permits the president to communicate to the ICC U.S. "policy with respect to a matter." The congressional ban would preclude U.S. financial support for the ICC, but all that means is that the United States can, for a change, enjoy the fruits of international justice without having to pay for it.

Not that there will necessarily be much fruit. Prosecutions by other international criminal courts have done little to bring reconciliation to Rwanda or the former Yugoslavia, or (as the Darfur tragedy shows) to deter future crimes in other nations. Nonetheless, it is possible that the concrete threat of an ICC prosecution could temper the killings in Darfur without adversely affecting the recent peace deal between Sudan's Islamic government and its southern rebels. If so, the Bush administration should play the difficult hand

likely to be dealt it by the Cassese commission to its own political advantage. A more moderate stance toward the ICC could be a more effective one.

The writer, a professor at Harvard Law School and a former Bush administration official in the Justice and Defense departments, is the author of "The Limits of International Law."

* * * * *

The following article appeared on nytimes.com on February 2, 2005:

Why Should We Shield the Killers?

By Nicholas D. Kristof

Two weeks ago, President Bush gave an impassioned speech to the world about the need to stand for human freedom.

But this week, administration officials are skulking in the corridors of the United Nations, trying desperately to block a prosecution of Sudanese officials for crimes against humanity.

It's not that Mr. Bush sympathizes with the slaughter in Darfur. In fact, I take my hat off to Mr. Bush for doing more than most other world leaders to address ethnic cleansing there - even if it's not nearly enough. Mr. Bush has certainly done far more than Bill Clinton did during the Rwandan genocide.

But Mr. Bush's sympathy for Sudanese parents who are having their children tossed into bonfires shrivels next to his hostility to the organization that the U.N. wants to trust with the prosecution: the International Criminal Court. Administration officials so despise the court that they have become, in effect, the best hope of Sudanese officials seeking to avoid accountability for what Mr. Bush himself has called genocide.

Mr. Bush's worry is that if the International Criminal Court is legitimized, American officials could someday be dragged before it. The court's supporters counter that safeguards make that impossible. Reasonable people can differ about the court, but for Mr. Bush to put his ideological opposition to it over the welfare of the 10,000 people still

dying every month in Darfur - that's just madness.

The issue arises partly because the Bush administration, to its credit, pushed the U.N. to investigate Darfur and to seek accountability for the killers. The result was a U.N. commission's 176-page report, released this week, that documents a series of crimes against humanity: people in Darfur crucified or thrown into fires, victims having their eyes gouged out or being dragged on the ground by camels, women and girls kept naked in rape camps, huts burned with children inside, and women forced to hand over their baby sons to be killed.

"It is undeniable that mass killings occurred in Darfur and that the killings were perpetrated by the government forces" and by a government-sponsored militia, the report said.

The U.N. commission then pulled its punches by concluding that Sudan had not pursued a deliberate policy of genocide - but it added: "The crimes against humanity and war crimes that have been committed in Darfur may be no less serious and heinous than genocide." As a result, the commission "strongly recommends" that the Security Council refer the matter to the International Criminal Court for prosecution, saying that is "the only credible way of bringing alleged perpetrators to justice."

At a practical level, it's also a way to pressure Sudan's leaders to stop a campaign of terror in Darfur that has already claimed at least 218,000 lives, according to a new British study.

Prosecution by the International Criminal Court has strong European support, but the Bush administration is aghast and desperately suggests prosecution instead by a court associated with the war crimes tribunal for Rwanda. Alas, that tribunal could take another year and 120,000 more deaths to start a Darfur prosecution.

"The I.C.C. could start tomorrow saving lives," said Kenneth Roth, the executive director of Human Rights Watch. "With the Rwanda tribunal route, you're talking about another year of killing."

The Bush administration is also struggling to find other Security Council members who would join it in voting against the referral to the International Criminal Court. I hope other countries stand firm, because my conversations with diplomats suggest that if the U.S. stood alone in opposition, the Bush administration would be too ashamed to exercise its veto and might abstain instead.

Kofi Annan called this week for consideration of sanctions against Sudan, and his voice as a leading African carries particular weight with that country's leaders. So, Mr. Bush, what about you? Will you push harder for a coalition for sanctions - forcing China to veto them if it so chooses? Will you impose a no-fly zone to stop Sudan's air force from strafing civilians?

After reading a report on Bill Clinton's passivity during the Rwandan genocide, Mr. Bush scrawled in the margin: "not on my watch." Now the Save Darfur Coalition (www.savedarfur.org) has made green plastic bracelets reading, "Not on My Watch - Save Darfur." Mr. Bush might wear one to his State of the Union address tonight - and find the courage not just to denounce evil, but also to confront it.

* * * * *

The following article appeared on thestar.com on January 27, 2005:

Innocent man can sue his lawyer

Says poor defence led to being jailed

HAMILTON-A Hamilton man sent to prison for a sexual assault he didn't commit has won permission to proceed with a lawsuit against his former defence lawyer.

Gordon Folland alleges local lawyer Dennis Reardon's negligent defence led to his wrongful conviction and incarceration.

Folland served nearly half his five-year sentence after a jury found him guilty in 1995 of sexually assaulting a 26-year-old woman in her home.

He was released when DNA evidence was linked to a friend, who had already told police he'd had sex with the woman the night she was assaulted.

Folland has since launched a malicious prosecution suit against the Hamilton police and the Crown attorney's office.

His suit against Reardon was originally dismissed last year by a Toronto judge, but that decision was overturned yesterday by the Court of Appeal.

The suit alleges negligence, including Reardon's trial performance and failure to obtain a DNA sample from the other suspect. The case hasn't been proved in court.

Reardon's lawyer, Christopher Diana, said his client disputes the allegations.

“He wasn't negligent. He lived up to the standard of care required of him," Diana said, adding he doesn't know if his client will appeal the latest decision.

Folland was found guilty in March, 1995 for the Nov. 23, 1993 sexual assault of a woman who had been sleeping.

Even though DNA tests showed semen on underwear found in the victim's bed did not match Folland, a jury took just 90 minutes to convict him.

He was released in November 1997 after two of his friends convinced a man who was also present in the woman's house to provide hair and saliva for testing. His DNA matched semen on the underwear.

The man wasn't called as a witness, and has never been charged with the offence.

The Court of Appeal ruling came a day after federal and provincial justice ministers released a report on combatting wrongful convictions.

* * * * *

The following article appeared on chicagotribune.com on January 24, 2005:

Jury awards $6.6 million to man 'framed' by FBI

'It's a long, long way from Death Row.'

By Matt O'Connor

A federal jury today awarded nearly $6.6 million in damages to former Chicago police Officer Steven Manning, finding two veteran FBI agents framed him for a Cook County murder that put him on Death Row.

The jury also held that one of the FBI agents also framed Manning in a Missouri kidnapping case. Manning spent 14 years in prison before both convictions were overturned and the prosecutions were dropped.

The damages could go even higher. U.S. District Judge Matthew Kennelly, who presided over the six-week trial, is yet to rule on whether the United States shares responsibility with the two agents for malicious prosecutions.

"It's a long, long way from Death Row to complete vindication,'' Manning said after the verdict.

The jury deliberated for 6½ days before finding FBI Special Agents Robert Buchan and Gary Miller liable for Manning's wrongful conviction in the 1990 murder of trucking firm owner James Pellegrino. Buchan was also found liable in the Missouri kidnapping case.

The jury also found the two agents had intentionally inflicted emotional distress.

Manning claimed in his civil suit that the agents had a grudge against him and framed him for the crimes. The charges surfaced after Manning, who had been an informant for the FBI, filed a civil harassment suit over his treatment by the agents when he tried to stop working in that role, said his attorney, Jon Loevy.

"It's a very unusual thing that the jury would find FBI agents framed somebody not just once but twice for capital crimes," Loevy told reporters outside the downtown Chicago courtroom where jurors returned their decision.

No comment could immediately be obtained from the FBI or the U.S. attorney's office, which represented the two agents at the trial. Both Miller and Buchan remain with the bureau, according to FBI spokeswoman Cynthia Yates.

In closing arguments Jan. 11, a federal prosecutor lauded both Buchan and Miller as dedicated, law-abiding FBI agents.

In a fateful decision, the FBI used a notorious informant named Tommy Dye to try to elicit evidence about the Pellegrino murder while Dye and Manning were incarcerated in Cook County Jail.

Dye asserted he had captured a confession by Manning on a hidden recorder, but when nothing was audible, he claimed that the confession came during a two-second inaudible portion of the recording.

He claimed Manning had grabbed him by the arm, bent him over, put a finger to his head as if it was a gun and said, "This is how I killed Pellegrino."

A Tribune investigation in November 1999 examined Manning's conviction as well as prosecutors' use of jailhouse informants and found both were deeply flawed.

Manning was taken off Death Row in 2000 and finally freed from prison in February 2004. His civil suit had sought damages of more than $20 million.

* * * * *

The following article appeared on nytimes.com on January 29, 2005:

At Celebrity Trials, the Spotlight Is Sharp but Shifting

By Charlie LeDuff

LOS ANGELES, Jan. 28 - Robert Blake, the B-list actor who is accused of killing his wife, shuffles around the courthouse in Van Nuys these days, alone, a Pall Mall tucked behind his ear. He goes unrecognized by the public and unhounded by the trickle of reporters and others who bother to keep up with his trial.

Mr. Blake, 71, carries a bitter look, as if cheated, as though the streetlights woke him up. He says he did not kill his wife, Bonnie Lee Bakley.

Few seem to care. Usually there are just a couple of cameras and a half-dozen reporters at the courthouse. Mr. Blake's moment in the sun has been eclipsed by the supernova that is Michael Jackson, whose trial on charges of child molesting is to begin Monday in Santa Barbara County with jury selection.

For that event, media representatives from around the world are converging on the courthouse in Santa Maria. E! Entertainment, along with British Sky Broadcasting, will broadcast re-enactments of the testimony 24 hours after the fact. There is no word yet on who will portray Mr. Jackson, the erstwhile King of Pop. Geraldo Rivera is expected to have an exclusive interview with Mr. Jackson soon.

The sensational accusations of Mr. Jackson's cavorting with a teenage cancer patient, his history of plastic surgery, his changing skin tone, his fantastic wealth, the worldwide curiosity nearly guarantee that the Jackson trial will rival the O. J. Simpson trial in coverage.

"It's the celebrity case of the century, up to this point," said Jeff Rayner, part of the British paparazzi, whose recent credits include a photograph of Britney Spears shopping for panties in Los Angeles. "The Jackson trial will be absolutely riveting. It's got everything. Fame. Race. Homosexuality. A Peter Pan love story."

Meanwhile, Mr. Blake goes largely unwatched.

"It's just that Michael Jackson has sucked all the air out of the Blake balloon," one Fox News producer said.

Even People magazine has demoted Mr. Blake, the star of the 1970's "Baretta" television series. It put him on the cover in May 2001, shortly after Ms. Bakley's death, but has not featured him prominently since. "Readers weren't that interested," said Larry Hackett, the magazine's deputy managing editor. Barbara Walters came knocking for an interview. Now he rarely makes the first segment of the local news.

Mr. Blake not only fails to live up to the title of most-famous celebrity defendant in Southern California, but he is also debatably not even the most famous murder defendant in Southern California. Phil Spector, the hermitic rock producer, famous for the Wall of Sound in the 1960's, was vaulted into the limelight when he was charged with murdering an actress, Lana Clarkson, at his Alhambra home in 2003.

In a confluence of events peculiar even to Southern California, there are also three serial killer cases moving through the legal system: that of the 60 Freeway Killer; that of the Santa Claus Strangler; and that of a former pizza delivery man who the police say is responsible for the murders of at least 16 prostitutes, which would make him the most prolific serial killer in the history of the City of Los Angeles. These cases barely rate a mention in the local newspapers.

The celebrity trials have certain elements in common. First is a rotating stable of high-powered lawyers. Mr. Jackson fired Mark Geragos because Mr. Geragos could not give him his full attention while also defending Scott Peterson. Mr. Peterson, a fertilizer salesman, was found guilty in November of murdering his wife and unborn child and was sentenced to death. Mr. Geragos has not spoken with reporters since then. As his replacement, Mr. Jackson chose Thomas Mesereau Jr., a former lawyer for Robert Blake.

Mr. Blake peeled through three separate legal teams - including that of Mr. Mesereau, who became upset after Mr. Blake ignored his advice and gave Ms. Walters an interview - before settling on a fourth, led by M. Gerald Schwartzbach, whose legal notes disappeared after two teenagers broke into his home office and stole his laptop computer. The computer was recovered at a pawnshop. The men sometimes bicker during recess.

Mr. Spector first hired Robert Shapiro, who helped defend Mr. Simpson. The men quarreled; Mr. Shapiro left. Mr. Spector then hired Leslie Abramson, who defended the Menendez brothers, now serving life in prison for murdering their parents. A short time later, Ms. Abramson resigned. Bruce Cutler, the lawyer for John Gotti, the Mafia boss who died in a federal penitentiary in 2002, now represents Mr. Spector.

Furthermore, the lawyers will have to work hard to convince jurors of their clients' innocence, considering all the pretrial hoopla. Mr. Jackson, it is well known by now, settled another case with a child in Santa Barbara for what was reported to be $20 million. Then he was seen on a television documentary, holding his current accuser's hand, saying there was nothing more loving than sharing your bed with a child. This month, the salacious grand jury testimony from his accuser leaked out and spread around the world, potentially tainting the pool of possible jurors.

In Mr. Blake's case, his longtime private investigator testified this week in the San Fernando Valley courthouse that Mr. Blake said he wanted to "whack" his wife. Prosecutors allege that Mr. Blake tried to hire two stuntmen to kill her. They refused. On May 4, 2001, Ms. Bakley, 44, was shot as she sat in her car, while Mr. Blake claims to have left the car to go back into Vitello's Italian restaurant to retrieve his forgotten gun.

According to one defense theory, Ms. Bakley was killed in a botched hold-up even though the police recovered her purse at the crime scene, with $301 in it.

As for Mr. Spector, grand jury testimony was unsealed this month, concerning the morning that Ms. Clarkson died. According to court papers, Mr. Spector told the police: "Just ask me, and I'll tell you. I'm not Robert Blake." And then: "I didn't mean to shoot her. It was an accident."

Mr. Spector has since changed his account, saying Ms. Clarkson shot herself.

Mr. Cutler said his client maintains his innocence and hopes to have the trial begin in late summer, when the Jackson trial will probably end, and the media will probably come calling.

Mr. Cutler, reached by cellphone, said, "I'm trying to make certain we get some balanced coverage."

In modern society, there is plenty of money to be made in the misfortunes of others. Freelance producers, paparazzi, entertainment and court television shows will have plenty of grist. The city manager of Santa Maria happily reports that his town will finally be on the map.

Even though Mr. Blake suffers in relative obscurity, Vitello's has become one of the best-known Italian restaurants in Los Angeles. "Business is good because of the whole Blake thing," said one waiter, an aspiring actor. "Curiosity seekers. We never used to have three waiters working a Monday night."

* * * * *

The following article appeared on washingtonpost.com on February 3, 20005:

Jackson Juror Prospects Asked About Race

By Tim Molloy

The Associated Press

SANTA MARIA, Calif. - Prospective jurors in the Michael Jackson molestation case were asked in a questionnaire released Wednesday if they can fairly judge people of different races, have ever been diagnosed with cancer and have ever experienced or been accused of inappropriate sexual behavior.

The questionnaire, which the roughly 250 prospects were asked to fill out during pretrial screening Monday and Tuesday, was designed to weed out jurors who might have strong feelings that would keep them from ruling fairly in the case.

Jackson is accused of molesting a 13-year-old former cancer patient.

The potential jurors were also asked if they ever worked with children and if they have friends or relatives who know Jackson, whose Neverland Ranch is located in Santa Barbara County about 30 miles from Santa Maria, the site of his trial.

A note to the prospects said the questionnaire also was designed to save them the embarrassment of talking about the issues in open court.

Attorneys are scheduled to begin questioning the potential jurors on Monday.

Judge Rodney S. Melville has said the questionnaire was based on questions submitted by attorneys in the case.

Besides asking the prospects about any religious beliefs or medical problems that could keep them from serving, the questionnaire touched on matters likely to come into play during the trial, including how closely they followed the 1993 molestation allegations against Jackson.

Prosecutors want to include details of those allegations in the trial to try to prove a pattern of abuse. Jackson reached a multimillion-dollar settlement with his accuser in that case and was never criminally charged.

Potential jurors were also asked if they or their families had ever made "any type of claim for money damages." Defense attorneys are expected to portray the accuser's family as being after Jackson's money, citing the family's past settlement from J.C. Penney after claiming security guards beat them.

* * * * *

The following article appeared on nytimes.com on February 3, 2005:

Lawyers in Kobe Bryant Trial Get Stern Warning to End Delay

By Kirk Johnson

DENVER, Feb. 2 - The civil sexual assault case against the basketball star Kobe Bryant has meandered for months through a sea of inconclusive sensationalism, with both Mr. Bryant and the woman who has accused him of rape each hinting in court documents that the other side is rife with salacious secrets that will all be revealed in time.

On Wednesday, Judge Richard P. Matsch of Federal District Court said enough was enough.

In a 40-minute hearing in which he did most of the talking, Judge Matsch accused the lawyers on both sides of using court documents as "a substitute for press releases," and said that he would have no more of it.

He ordered much of the court record sealed to prevent, he said, further posturing for public opinion.

The prospect of further delays - the deadline for Mr. Bryant's deposition, for example, came and went in December - was similarly dispatched with a few quick words from the bench. Mr. Bryant, Judge Matsch said, should be interviewed by lawyers for a deposition by the end of the month, and so should the woman who has said Mr. Bryant raped her on June 30, 2003, at a hotel near Vail, Colo.

The lawyers who had come to the federal courthouse here to argue the latest round of legal motions were left mostly to stay in their chairs and speak when spoken to, with answers like "yes, sir," and "forthwith."

"I expect this case to get to trial in the summer - this summer," the judge said.

Through much of the legal journey of Mr. Bryant and his accuser over the last year and a half - from the sometimes chaotic criminal case, which ended abruptly in September when the charges against Mr. Bryant were dropped, to the civil suit here in Denver in which she is seeking financial compensation - the spotlight has remained on the two people in the center ring. Mr. Bryant, a guard for the Los Angeles Lakers, said that the woman came to his hotel room and that they had sex. The woman said that they kissed and flirted and that Mr. Bryant then pushed her down and raped her.

But with Wednesday's hearing, a third powerful voice emerged in the form of a diminutive 74-year-old judge with 30 years on the federal bench and an outsized reputation for holding lawyers in check. From the Oklahoma City bombing trials that he presided over in the late 1990's to the tangled legality of court-ordered school busing, Judge Matsch (pronounced maytch), has burnished a reputation for rigor.

"No nonsense - that's Judge Matsch," said Rich Caschette, a lawyer and former federal prosecutor in Denver who has seen the judge in action many times. "Lawyers don't like to admit being afraid of anyone, but when you go before Judge Matsch, you'd better be prepared, and you know that."

But lawyers and legal scholars who have followed the Bryant case said that what might ultimately be most important about the judge's take-command performance on Wednesday was not in the rules he set, but in the questions he left deliberately unanswered.

Much of the pretrial wrangling has centered on what Mr. Bryant and the woman can be asked in pretrial depositions. Her lawyers want to ask detailed questions about Mr. Bryant's sexual history, a line of questioning that they say is relevant to establishing what they believe is a pattern of violent behavior toward women.

Mr. Bryant's lawyers want those questions limited. They want to ask the woman about her medical and psychological history, which they say is relevant to her accusation.

Judge Matsch, in ordering that the depositions move forward immediately, said he would not rule in advance on what limits would be set on the questioning, and would instead address those matters as they came up. What that means is that neither side will know in advance whether the answers to any particular line of questioning will be allowed, or whether ultimately one side might get more leeway than the other.

One former prosecutor who has closely followed the case, Karen Steinhauser, now a visiting professor at the University of Denver Sturm College of Law, said she thought that the environment of uncertainty created by Judge Matsch could easily push the parties to settle the case before the depositions begin. Lawyers do not like uncertainty, she said.

"Both sides have got to be wondering how much do they want the other side to find out, and what will that do to a possible settlement and are you better off cutting your losses," Ms. Steinhauser said. "Once a deposition starts, it's almost too late to say, 'Oops, maybe we shouldn't have gone there.' "

* * * * *