Issue 332
April 15, 2005
q Death Penalty Turnaround by David Kaczynski
q Duplicity, Greed and Dubious Characters Are on Parade at Jackson Trial by Charlie LeDuff
q Lawyer opposing death row helps save bomber’s life by Jay Reeves
q For the Expert Witness, a Few Tough Questions by Frederick Burger
q No-Show Witnesses Tossed in Jail by Eric Rich
q E-mails become trial for courts by Ameet Sachdev
The following article appeared on latimes.com on April
12, 2005:
Death
Penalty Turnaround
By David
Kaczynski
David
Kaczynski is the head of New Yorkers Against the Death Penalty.
New York is
poised to make history today, becoming the first state to effectively do away
with the death penalty since capital punishment returned to the criminal
justice system in the mid-1970s.
The reasons
for this shift in attitude are myriad. A spate of revelations of wrongful
convictions, including the exoneration of 13 death row inmates in Illinois, has
focused on the impossibility of drafting a law so airtight that it would never
catch an innocent person in its clutches. Growing majorities of New Yorkers
have told pollsters that they prefer life without parole as the maximum
sentence for those convicted of the most heinous crimes.
I was always
opposed to the death penalty, but it unexpectedly became intensely personal for
me in 1995 when my wife, Linda, first suspected that the man known as the
Unabomber could be my brother, Ted. I knew Ted was mentally ill, but I never saw
him as violent. Yet when newspapers across the country published his manifesto,
it was clear to us that Ted was most likely the Unabomber.
I was faced
with a dilemma that even in retrospect seems overwhelming. If I turned my
brother in, I knew there was the possibility he would face execution. If I did
nothing, I knew there was a likelihood that another innocent person would die
as a result of his actions.
The only
promise I received from the federal agents I worked with to capture my brother
in his Montana cabin was that they would keep our family's involvement secret,
a promise that was not kept.
But even as
we successfully fought to keep Ted from getting the death penalty, I learned of
many other cases of families who couldn't keep loved ones off death row, loved
ones who committed murders but also suffered from mental illness and didn't
have access to the lawyers and attention that Ted's case drew.
Those cases
included Californian Bill Babbitt, whose brother, Manny, a decorated Vietnam War
veteran who wrestled with demons similar to my brother's, was convicted of
killing an elderly woman in Sacramento. Bill, who has become my close friend,
had to undergo the trauma of watching his brother executed at San Quentin
prison.
Here in New
York, the death penalty was reinstated in 1995 in a law that was meant to meet
the U.S. Supreme Court's requirement that states create statutes that it would
not be "cruel and unusual." At that time, Gov. George Pataki took
office after unseating Mario Cuomo in a campaign in large part aimed at Cuomo's
annual veto of pro-death penalty legislation. Pataki and the legislature
quickly enacted the new death penalty law.
Then last
June, the state's highest court declared a portion of that law
unconstitutional. The state Senate quickly passed a fix proposed by Pataki.
However, the Assembly, where 75 of the 150 members were not present in 1995,
launched hearings, and it is expected that a committee will vote today against
the proposed fix — leaving New York without a death penalty.
Many of the
same legislators who wanted the death penalty in the past are likely to vote
against it now. It is a measure of how much has changed in the intervening
years that few of them appear to fear retribution from voters.
The hearings
were remarkable for the passion and clarity of the arguments. In addition to
anti-death penalty activists and religious leaders, witnesses included
exonerated death row inmates, murder victims' families and district attorneys —
even some who personally favor a death penalty but called it unworkable and too
expensive.
Particularly
compelling was the revelation that, in the last 10 years, New York state has
spent an estimated $200 million on capital-crime prosecutions — on a special
defenders' office, prosecutors' training, the building and staffing of a death
row and other costs. Only seven death sentences were handed down; no one has
been executed.
New York is
not alone in having second thoughts on the death penalty. As monitored by Equal
Justice USA — an advocacy group aligned with the anti-death penalty Quixote
Center — New Mexico, Connecticut, Illinois and Kansas are all reexamining their
death penalty laws. In California, the state Senate has stepped up to establish
a commission that, once funded, will begin the process there.
What is
significant is that as in New York, the debate over the unfairness,
unworkability and high cost of the death penalty is taking place with little
evidence that politicians fear retribution from their constituents.
We in New
York have learned that we can live without the death penalty. We hope that the
rest of the country learns what we have learned.
* * * * *
The
following article appeared on nytimes.com on April 9, 2005:
Duplicity,
Greed and Dubious Characters Are on Parade at Jackson Trial
By Charlie
LeDuff
SANTA MARIA,
Calif., April 8 - This week at the Michael Jackson child-molesting trial ended
much the way it began, with an onslaught of figures from his past saying they
had seen him in compromising and scandalous positions with boys.
But the
parade of former employees included some who admitted that they had stolen from
their boss, sold their accounts of events to tabloid journalists for thousands
of dollars, changed their testimony when the money came knocking and lied to
investigators. Even the man who used to fetch Mr. Jackson's French fries was
once a purveyor of Internet pornography.
So
debilitating was it to watch that Judge Rodney S. Melville of Superior Court
said with a sigh, "It's been an intense week."
Jurors on
Friday heard from Philip LeMarque, the self-described major-domo to Mr. Jackson
in the early 1990's, who said he saw Mr. Jackson with his hand down the shorts
of Macaulay Culkin, the former child actor, as they played video games.
Mr. LeMarque
conceded he had not tried to intervene on the boy's behalf and never called the
authorities.
"Why
not?" the prosecutor asked.
"Because
no one would ever believe us," he replied in a French accent.
What Mr.
LeMarque did do was contact a go-between to sell his recollections to the
tabloids for $100,000 when Mr. Jackson's troubles with children began to emerge
a few years later. The broker said the worse the story, the more money, Mr.
LeMarque testified. His oscillating story was never sold, however.
"We
were tempted with the money, for sure," he said. But in the end he felt
"it was against our principles."
Adrian
McManus, a former maid to Mr. Jackson, also testified. When asked to identify
Mr. Jackson, who was sitting not 15 feet away in court wearing his customary
crest and armband, she could not because she did not have her glasses.
Nevertheless,
Ms. McManus said she was certain she saw Mr. Jackson and a boy stripped to the
waist in his bedroom a number of years ago, kissing while Mr. Jackson had his
hand on the boy's genitals.
Under
cross-examination, she unraveled. In a 1993 deposition, she told a grand jury
that she never saw any lurid behavior. In court this week, she said she had
lied then because she was afraid of reprisals from Mr. Jackson's camp.
Ms. McManus
is one of five former employees who sued Mr. Jackson in 1995 for wrongful
dismissal - and lost. The jury found that they had acted with fraud and malice
and ordered them to pay more than $1 million for Mr. Jackson's legal fees.
Mr.
Jackson's lawyer, Thomas A. Mesereau Jr., intimated that not only had she lied,
but that she had also stolen trademark fedoras, bags of candy and an Elvis
sketch from Mr. Jackson.
Ms. McManus
said she had never stolen and had not sued for money. "I wanted
justice," she said.
Mr. Mesereau
countered, "But your idea of justice is millions of bucks."
On Thursday,
Ralph Chacon, a former security guard responsible for protecting Mr. Jackson's
privacy, said he peeped in the singer's bathroom window once and saw Mr.
Jackson performing oral sex on a boy. Mr. Chacon also never contacted the
authorities and was also one of the five employees who unsuccessfully sued Mr.
Jackson. By the end of his testimony he cried and said he wanted to go home.
The
witnesses appeared by quirk of California law, which allowed untried charges
into evidence in sexual predatory cases to demonstrate a pattern of behavior.
It was a
breath of life into the case of Thomas W. Sneddon Jr., who is prosecuting Mr.
Jackson on charges of molesting a 13-year-old cancer survivor in 1993 and
holding his family captive to keep them from the public eye.
The
prosecution wants jurors to believe that Mr. Jackson began to molest the boy
after a controversial documentary of Mr. Jackson was broadcast showing him and
the boy in a loving embrace. Mr. Sneddon contends that Mr. Jackson then squired
the boy and his family away to keep them from talking about molesting incidents
he had not yet committed; that those acts were, in fact, committed only after
Mr. Jackson was on the run, apparently snapping under the intense public
scrutiny.
The
witnesses this week characterized Mr. Jackson as a predator whose modus
operandi involved finding a boy who was estranged from his father and had a
feckless mother who seemed willing to offer her child at the altar of Mr.
Jackson's fame and fortune. The jurors are being asked to consider the
confusion of young boys romanced by a rich man, captivated by his elephants and
chimpanzees, his talk of love and his insistence that they call him Daddy. One man, now 24, testified earlier this
week that it took years of therapy to work through his recollections of Mr.
Jackson's putting his hand in his shorts and later tucking in a $100 bill in
hush money. By the end of his testimony, the man was a puddle of confusion and
tears.
Mr. Jackson
himself often seems disoriented in court. This week, his lawyer admitted that
Mr. Jackson consumed a copious amount of prescription pills for a bevy of
maladies.
If the jury
convicts him, Mr. Jackson, 46, the self-described Peter Pan, the man who
refuses to grow up, may spend his 65th birthday in prison.
* * * * *
The
following article appeared on boston.com on April 10, 2005:
Lawyer
opposing death row helps save bomber's life
Advocate had
role in other plea pacts
By Jay
Reeves, Associated Press
BIRMINGHAM,
Ala. -- The lawyer who brokered the agreement to spare the life of Eric
Rudolph, the convicted serial bomber, has helped to keep other high-profile
defendants off death row -- including Ted Kaczynski, the Unabomber.
That lawyer,
Judy Clarke, has been described as a ''one-woman Dream Team" by a
colleague who helped her defend Susan Smith, the South Carolina mom who avoided
a death sentence after being convicted of drowning her two boys in 1995. (The
Dream Team of lawyers helped to acquit O.J. Simpson of the murder of his wife,
Nicole Brown Simpson, and a waiter, Ronald Goldman, in 1994.)
Clarke
helped Kaczynski to arrange a plea and avoid a death sentence, and on Friday,
Rudolph followed suit, agreeing to plead guilty to the deadly 1996 Olympic park
bombing in Atlanta, a fatal 1998 abortion clinic blast in Birmingham, and two
others in Atlanta in 1997.
A staunch
opponent of capital punishment, Clarke works for the federal defender's office
in San Diego.
''She just
doesn't believe in the death penalty, so she does everything she can to keep
that from happening," said Doug Jones, who was US attorney in Birmingham as
the clinics were bombed.
In court,
where she typically wears dark suits with floppy bow ties, Clarke showed what
appeared to be an easy familiarity with Rudolph. She often leaned over to
whisper to him or occasionally put a hand on his shoulder to make a point.
Rudolph,
believed to be a follower of a white supremacist religion that is
anti-abortion, anti-gay and anti-Semitic, became an almost mythic figure to
some in the region as he eluded a manhunt in the Appalachian wilderness that
lasted more than five years.
He was
captured in Murphy, N.C., in 2003 and charged with carrying out a string of
bombings that killed two people and wounded more than 120.
Clarke has
Southern roots; she grew up in Asheville, N.C., not far from where Rudolph
built his bombs. This could have helped Rudolph get comfortable enough to make
the bargain, said Jones, who has known Clarke for years.
''I think
she obviously ended up being critical in this case," Jones, who is now a
lawyer in private practice, said yesterday.
Clarke
herself, who rarely grants interviews, did not return messages seeking comment.
A former
president of the National Association of Criminal Defense Lawyers, Clarke
gained prominence with the Susan Smith case, when she convinced jurors that
Smith did not deserve to die for drowning her sons by strapping them in a car
and driving it into a lake. She gave her $83,000 fee for the case to a group
that defends the poor in capital
cases.
Before an
Alabama judge appointed her to represent Rudolph, Clarke was assisting with the
defense of Zacarias Moussaoui, the only US defendant charged in the Sept. 11
terrorist attacks.
Rudolph will
receive four consecutive life terms if judges agree to the plea arrangement;
hearings are set for Wednesday. He may be sent to the same federal prison in
Colorado that houses Kaczynski.
Rudolph
still must tell judges enough about the crimes to prove that he really
committed the bombings. He directed authorities to stashes of 250 pounds of
stolen dynamite and a bomb in western North Carolina. That information helped
prompt prosecutors to make the agreement.
But Rudolph
apparently isn't under any requirement to explain how or why he launched the
string of bombings.
Emily Lyons,
a nurse who was critically wounded in the Alabama bombing, said she was
troubled by the possibility that she may never know what really happened.
Rudolph's remote-controlled bomb, which prosecutors say was housed in a green
toolbox disguised with fake greenery, blasted away Lyons' memory of that day as
it caused severe wounds to her body.
''I have no
concept of what a bomb does except for what happened to me," Lyons said in
an interview. ''I want to know what happened. I want them to piece the day
together for me."
* * * * *
The
following article appeared on washingtonpost.com on April 10, 2005:
For
the Expert Witness, a Few Tough Questions
By Frederick
Burger
ANNISTON,
Ala. -- When he arrived here three years ago, Robert David Madrid brought with
him an easy charm and a voluminous résumé. It boasted an undergraduate degree
from the University of Maryland, a master's degree from Georgetown University,
a medical degree from Harvard and a PhD from the Massachusetts Institute of
Technology. The icing was his membership in the high-IQ society, Mensa.
Perhaps it
should have raised more questions when a professional of such ilk landed in an
old foundry town that once proclaimed itself the "world soil-pipe
capital." But Madrid came here with a sure bet -- a job as a partner in an
investigations firm founded by an old friend. Capt. Bobby Wayne Parker, now a
retired Anniston police officer who first met Madrid in 1984 on a golf course
in Northern Virginia, squired his young partner around town, introducing him as
a hot new investigator and forensics expert to lawyers who might hire them in
the future.
Before long,
Madrid was commanding as much as $175 an hour as a forensic witness for
attorneys representing accused murderers, and reading and interpreting medical
records for the defense.
From the
outside, it seemed a comfortable, stable life Madrid had created in a short
time, moving his new wife, her three children and their infant daughter into a
house on Glenwood Terrace, its parkway shaded by tall oaks and distinct for its
1910-era streetlights. But underneath, all was not as it seemed.
In February,
a squad of sheriff's cars pulled up in front of Madrid's house and officers
swarmed the place. They confiscated two computers and some personal papers and
took Madrid down to the Talladega County jail. Not long after, Madrid, 41,
stood in front of a dull beige wall as a deputy snapped his arrest mug.
Suddenly,
the life he had crafted was crashing around him.
Selina Volz
answered the singles ad that Bob Madrid placed on America Online in the summer
of 2000. They met for the first time at a bagel shop in Salt Lake City, where
they were both living. During their courtship, he told her he was a medical
doctor and a millionaire, she said. He had also had a talk show on a local
radio station, KIQN, which has since gone out of business. "He was very
appealing to a single mother with three young children."
She was
flattered to be romanced by such an accomplished and wealthy suitor.
After he
proposed, she took her engagement ring -- an antique Madrid told her he bought
in Jerusalem -- to have it appraised. She was stunned by what the jeweler told
her. It was a fake.
Other things
didn't add up either. Madrid would talk about his past, and when he repeated
stories later to acquaintances, Selina noticed that the facts would be
noticeably different.
"I knew
there was a problem, but you try to make it work. I was trapped. I didn't want
another failed marriage," she recalled in an interview. "He always
had an explanation."
The
newlyweds ran a pet-grooming business that she says his parents helped finance.
She says Madrid answered the telephones while she washed and clipped the
animals. They did that for a year.
Then Madrid,
restless, called his old friend Parker in Anniston, a town of 25,000 in
northeast Alabama.
He was
planning to take "early retirement," Madrid told Parker. Would he
have any work for him in his detective agency?
Parker was
happy to have his young friend working with him, even though Madrid had no
experience as an investigator. And since Alabama has no licensing requirements
for private investigators, all Madrid had to do was declare himself one and go
to work.
Parker and
Madrid served legal papers, conducted surveillance in divorce cases and
performed crime scene investigations for defense attorneys. Sometimes Madrid
read and interpreted medical records for trial lawyers.
Normal
gumshoe fees were about $55 an hour. Madrid, however, with his academic and
medical credentials, could charge as much as $175 an hour, if his testimony was
based on the medical expertise he claimed on his résumé.
Parker never
questioned Madrid's medical credentials. When they met 20 years earlier on the
golf course, mutual friends addressed Madrid as "Doc." Parker never
inquired about the details.
Anniston
attorney Susan Frost recalls running into Madrid on the street one day in the
sweltering summer of 2003. After listening to her complain about her allergies,
Madrid showed up at her office with a black doctor's bag, pulled out a
stethoscope and listened to her lungs and heart. He gave her some medication
that looked like doctor's samples.
Only trouble
was, he wasn't a medical doctor. She laughs now at the memory of Parker touting
his partner as "the only licensed forensic physician in the state."
Prosecutors
weren't laughing, though, when they discovered that wasn't the only credential
Madrid had lied about.
Questions
about Madrid's background might not have been raised had he not been hired to
testify in a murder case earlier this year in Heflin, Ala., just east of
Anniston. Defense attorneys hoped Madrid's expert testimony would help convince
the jury that their client was not guilty of murdering his neighbor.
Four days
before the trial was to begin, however, Assistant District Attorney Brian
McVeigh read a report from Madrid that was to be the basis of his expert
testimony. It did not ring true, McVeigh says. According to that report,
Madrid's testimony on the bullet wound that killed the victim would also
discuss the ejection of the spent shell casing from the gun, a subject that
would have gone beyond his area of expertise, McVeigh said.
McVeigh
glanced at Madrid's glittering curriculum vitae. Then he raised questions about
Madrid with the defense attorneys who hired him. The attorneys told Madrid
there were concerns about his background.
Suddenly,
Madrid changed his mind and said he did not want to testify in the Heflin
trial.
McVeigh,
however, filed a subpoena to force Madrid into court and called him to the
stand. Then the questions started flying.
"Included
in [your] CV . . . are some specific mentions of schools that you claim you
have attended," the prosecutor said. "Did you, in fact, attend the
University of Maryland?"
Madrid
responded, "On the advice of counsel, I plead the Fifth
Amendment."McVeigh asked, "Did you, in fact, attend and receive a
degree [in 1983] from Georgetown University?"
"On the
advice of counsel, I plead the Fifth Amendment."
McVeigh
pressed on. What about the medical degree you claim to have earned from Harvard
in 1987? And the PhD you claim from MIT in 1988? Are you, in fact, a member of
Mensa? Why is the number of the Texas medical license you claim actually
registered to someone born in 1918, 45 years before your birth date?
Madrid repeatedly
refused to answer.
In a matter
of minutes, the reputation and livelihood Madrid had constructed so carefully
began to shatter.
Word spread
among lawyers and judges in the legal community. Court officials began
searching for other cases in which Madrid had testified. One was quickly found
in neighboring Talladega County.
Four days
after his testimony in Heflin, on Feb. 11, Talladega District Attorney Steve
Giddens filed perjury charges against Madrid, alleging he had testified falsely
in a 2003 civil case in Talladega involving the estate of a murdered doctor.
The criminal charges against Madrid say he lied about holding a "PhD in
Cognitive Neuropsychology from the Massachusetts Institute of Technology."
"It's
really caused a stir," admits chagrined defense lawyer Nancy P. Vernon,
for whom Madrid was to testify as a forensics expert in the Heflin murder
trial. "He seemed to have the credentials that would be helpful to my
case."
Investigators
in Alabama say they know more about who Bob Madrid is not than who
he is. They
know he was born in Maryland, not San Antonio, as his curriculum vitae claims.
They know he graduated in 1981 from DeMatha Catholic High School in
Hyattsville. They cannot find a single college from which he holds a degree.
Tim Moylan,
now a mortgage banker, played on the golf team with Madrid at DeMatha and
remembers him as a good athlete, but without a lot of friends.
"He was
a good guy but sort of lived in his own little world," Moylan says.
Eighteen
months after his marriage to Selina Volz, Madrid divorced her. She moved back
to Salt Lake City with the baby girl she and Madrid had. She remarried.
Madrid
appeared in Talladega District Court on March 29 to respond to charges of
perjury. He was neatly dressed in a dark blue suit, white shirt and tie, and he
wore a goatee.
Much of the
time Madrid sat patiently by himself in the back of the courtroom, while his
lawyer, William M. Dawson, chatted with colleagues and prosecutors. His case
was postponed until a later date.
Madrid has
declined to discuss his case. Dawson says his client is innocent.
Meanwhile,
the house on Glenwood Terrace is quiet.
His car,
according to neighbors, is often parked in the driveway of his parents' home,
just up the street.
The following
article appeared on washingtonpost.com on April 9, 2005:
No-Show
Witnesses Tossed in Jail
Baltimore
Prosecutors Use Tactic on Those Who Fear Testifying
By Eric Rich
Washington
Post Staff Writer
Kenyetta
Costes had been in a Baltimore jail more than five months when, in a
handwritten letter, she pleaded with a judge to set her free.
"My
life has totally stopped," wrote Costes, 19. "I've lost my life, my
family, my children and my home. I humbly ask, would you please consider
releasing me on home [detention] until the court date?"
On the court
date in question, Costes was not to be a defendant. She was charged with no
crime, but was a witness -- a state's witness who, like countless others in
Baltimore, had decided that testifying was a risk not worth taking.
Prosecutors, determined to put her on the stand, soon found themselves in the
awkward position of asking a judge to jail their own witness.
In
Baltimore, where cooperative witnesses are routinely shunned and sometimes
killed, prosecutors estimate that each week they get three to five orders
allowing them to arrest witnesses who have skipped court dates. Within three
days, the witnesses must come before a judge, who then can order them held or
set conditions for their release.
Generally,
witnesses are held no longer than several days, a few weeks at most,
prosecutors say. Costes, a mother of two, was the rare case: She spent 163 days
in jail before a judge, responding to her letter, set her free in January after
she gave a videotaped deposition.
The city's
top prosecutor, State's Attorney Patricia C. Jessamy, acknowledged that her
office uses so-called body attachment writs more frequently than other state's
attorneys in Maryland but said she has little choice. "I would rather not
[jail witnesses], but we need to get justice for our victims and we need to get
justice for our community, so we do what we have to do," she said.
"It's not always pretty."
Prosecutors
in other jurisdictions use the practice to a more limited extent. In the District,
for example, Channing Phillips, spokesman for the U.S. attorney's office, said
that it is not uncommon for warrants to be issued for witnesses who do not show
up. Marshals typically take those witnesses into custody, and after a short
time in jail, they usually comply with future subpoenas, Phillips said.
But
prosecutors across Maryland say witnesses are detained in Baltimore far more
frequently than elsewhere. The precise scale of the practice remains obscured
by a lack of available statistics.
Richard A.
Finci, former president of the Maryland Criminal Defense Attorneys'
Association, said he has "major constitutional concerns" about
holding witnesses for months at a time and about the tactic of detaining
witnesses generally.
"I
think it's used too often to pressure witnesses into giving a version of events
that favors the government," he said. "Even if a witness is not being
directly told that their release is subject to their testimony and cooperation,
they're being trained full well to know that if they don't satisfy the
government, they're not going anywhere."
Many
witnesses, even shooting victims who were talkative when they were bleeding on
the ground, would simply vanish if they were not jailed, prosecutors in
Baltimore said. A majority of their most serious cases would collapse, they
said.
"If
he's held for three months, so be it," William F. Cecil, one of Jessamy's
prosecutors, said of a hypothetical reluctant witness, "because if you let
him go, he's not coming back."
Baltimore Circuit
Judge John M. Glynn, who oversees the criminal docket, said the state has
"a terrible time" trying to manage its witnesses. "But that's
what happens at a place that has the depths of criminal problems this place
does," he said. "On the street, the criminals have more power on a
day-to-day basis than the police."
It was in
Baltimore, in 2002, that a drug dealer firebombed the home of Angela Dawson.
The woman, who had complained repeatedly to police about drugs in her
neighborhood, was killed along with her husband and five children.
And it was
in Baltimore in November that a DVD called "Stop Snitching" began to
circulate. The DVD, for sale in at least one Baltimore shop, celebrates witness
intimidation and includes interviews with men talking about retaliation against
suspected informants.
Jessamy
circulated copies to state legislators and asked them to support a bill that
would give prosecutors broad new powers to fight witness intimidation.Gov.
Robert L. Ehrlich Jr. (R), author of one of such proposal, cited the DVD during
his State of the State address.
Under
Ehrlich's proposal, statements from witnesses who did not appear at trial could
be entered into evidence. Defense lawyers, however, complained that the
provision would strip defendants of their constitutional right to cross-examine
witnesses against them.
Del. Joseph
F. Vallario Jr. (D-Prince George's), a defense lawyer and chairman of the House
Judiciary Committee, opposed the provision. The panel approved a watered-down
variation of the provision Wednesday.
Jessamy said
later that the amended proposal would "help us very little" in
addressing the culture of witness intimidation in Baltimore. With the session
set to end Monday, the legislation's fate remained uncertain.
Prosecutors say
they use body attachments only because the culture of witness intimidation is
so pervasive. Analyses in recent years showed that nearly one of every three
homicide or non-fatal shooting cases is dismissed because witnesses vanish or
change their stories, they said. In September, the city assigned three
detectives to help Jessamy's office locate and sometimes arrest uncooperative
witnesses.
"Being
a snitch in Baltimore City is one of the worst things you can be in 2005 and
one of the most dangerous things you can be," Cecil said. He estimated
that body attachments are used in at least half of the non-fatal shooting cases
in the city. Another Baltimore prosecutor, Samuel A. Yee, said: "I
strongly prefer that my witnesses are in jail. Nothing makes me happier than
that."
The
witnesses are detained at the city jail. Absent a specific instruction to the
contrary, officials said, they are treated like anyone else who has been
arrested.
Costes was
expected to testify against Marvin Buckson, who had been charged in a 2002
shooting death in East Baltimore. Soon after the slaying, Costes told police
she had seen Buckson pull a gun on the victim, a man she knew as Willie Earl,
and then drag the victim down the street by his shirt.
The trial
was postponed repeatedly between March 2003 and June of the following year.
During that time, records show, Costes was a no-show at five scheduled court
dates -- one time, according to prosecutors, actually fleeing from the
courthouse.
Prosecutors
had her arrested on a body attachment Aug. 16, 2004. She was presented before
Glynn two days later and was ordered held without bail. As with all such
witnesses, she was eligible to receive $10 for every day she was in jail.
"It's
very disturbing to deprive someone of their liberty when they're not charged
with a crime," Glynn said last week. "The only alternative I know of
is if you had a more sophisticated system of witness protection, but . . .
that's expensive. We already have the jail."
Costes was
released in January, on Glynn's order, after giving a videotaped deposition
that could be used as evidence in Buckson's trial. As it happened, Buckson soon
pleaded guilty to second-degree murder, and Costes was not required to testify
in court.
Through her
lawyer, Costes declined to comment for this story.
* * * * *
The
following article appeared on chicagotribune.com on April 10, 2005:
E-mails
become trial for courts
Costly
electronic discovery `part of potentially every case in the 21st Century'
By Ameet
Sachdev
Tribune
staff reporter
A
high-stakes fraud trial pitting New York financier Ronald Perelman against
investment banking firm Morgan Stanley began Wednesday in Florida, but some of
the most important battles in the case have already been fought.
For more than
a year the two sides sparred over Morgan Stanley's repeated failure to hand
over e-mail messages connected to a $1.5 billion merger in 1998 between Coleman
Inc., a camping gear maker majority-owned by Perelman, and Sunbeam Corp., the
Wall Street firm's client. Perelman wanted to review e-mails to find evidence
that Morgan Stanley knew or should have known of accounting fraud at Sunbeam
before he struck a deal with the company.
The judge
finally got fed up. Last month she ruled that Morgan Stanley had been
"grossly negligent" in handling its e-mails. She also blamed its
chief legal counsel, the Chicago law firm Kirkland & Ellis, for the delays
and rebuked the firm for its "stonewall tactic."
Morgan
Stanley fired Kirkland two weeks before the start of trial and threatened the
firm with a malpractice lawsuit.
Florida
Circuit Court Judge Elizabeth Maass also took the unusual step of telling the
jurors that they could infer that Sunbeam had defrauded investors like
Perelman. The ruling undercut Morgan Stanley's defense and may make Perelman's
case much easier to prove.
Morgan
Stanley's situation is just the latest example of what has become a widespread
problem in court: The failure to retain and share digital information. The
issue has not received as much attention as more political legal controversies,
such as curbing class-action lawsuits and capping medical-malpractice awards.
But it can make or break many lawsuits.
"More
money is probably spent litigating electronic discovery problems than in litigating
class actions," said Ken Withers, senior education attorney at the
Washington-based Federal Judicial Center, the research arm of the U.S. courts.
"This is part of potentially every case in the 21st Century."
In today's
digital world, electronic evidence--from spreadsheets to PowerPoint
presentations to the most ubiquitous of all, e-mail messages--has become the
modern-day paper trail.
A sole
e-mail from an in-house attorney at Andersen advising a partner to edit an
internal memo about Enron Corp.'s financial disclosures helped convict the
accounting firm of obstruction of justice. Litigants that intentionally destroy
electronic evidence or drag their feet in sharing documents can face the wrath
of judges, as the Morgan Stanley case and other recent court decisions
illustrate.
In one case
contested in federal court in Chicago, a company was punished after its owner
bought a copy of a software program called "Evidence Eliminator" to
erase files from his computer. The judge in the case threatened that the
owner's suit against a rival over patent infringement be thrown out because of
the owner's "egregious conduct." The judge forced the offender to pay
a portion of his opponent's fees and costs.
With the
costs of retrieving electronic information skyrocketing, skirmishes during
discovery, as the pretrial information-gathering stage is called, have become
commonplace. Restoring e-mail can cost roughly $2 per message, including the
cost of attorneys needed to review the documents, according to Chicago law firm
Vedder Price Kaufman & Kammholz.
If a
plaintiff demands millions of e-mails, the request is a form of blackmail,
corporations argue.
Companies
including Microsoft Corp. and Exxon Mobil Corp. are lobbying federal courts to
adopt rules governing electronic evidence that would, among other things, give
them more protection in the case of inadvertent destruction of electronic
documents. But the proposals are far from being approved.
Until then,
litigants are guided by recent court opinions. For companies and the law firms
that defend them, the Morgan Stanley case serves as a cautionary tale.
Perelman,
the chairman of cosmetics firm Revlon Inc., is suing Morgan Stanley for $2.7
billion in punitive and compensatory damages.
When he sold
Coleman he received $680 million in Sunbeam stock that eventually became
worthless when the company went bankrupt in 2001 following the disclosure of
its accounting problems.
Soon after
the Perelman suit was filed in May 2003 his attorneys, who include Jerold
Solovy of Chicago's Jenner & Block, asked to review all documents connected
to the Sunbeam transaction, including e-mails. They initially received more
than 8,000 pages of documents but only a handful of e-mails, according to court
documents.
In answering
a second request for more e-mails, Morgan Stanley complained that Perelman
wanted the court to order "a massive safari into the remote corners"
of the company's e-mail backup systems that would cost at least hundreds of
thousands of dollars.
The firm
later asserted that it no longer had backup tapes with e-mail from 1997 and
1998.
As part of
disaster-recovery plans, companies typically take periodic snapshots of
everything in their computer servers and burn the information onto magnetic
tapes for storage. Some information, such as employment data and records
related to financial audits, must be retained for certain periods of time as
required by state and federal laws.
The amount
of electronic information stored at large companies is staggering. An Exxon
Mobil lawyer estimates that it stores 800 terabytes of information, which
equates to 400 billion typewritten pages.
The company
generates 121,000 backup tapes a month, which it routinely recycles according
to its records-retention policies. If a judge ordered it to stop recycling
tapes to preserve data, the cost just for buying extra tapes would be $1.9
million a month, the company said. In the Morgan Stanley case Judge Maass
ordered the company to search its oldest backup tapes for each of 36 employees
involved in the Sunbeam deal and review e-mails during a two-month period in
1998.
Morgan
Stanley's recovery effort, according to court papers, called for the company to
hunt down backup tapes in storage warehouses and turn them over to another
company to read them. The data would then be uploaded to a new e-mail archive
to be searched for the required messages.
Morgan
Stanley turned over another 1,300 pages of e-mails on May 14, 2004, and later
certified that it had complied with the judge's order.
That was
just the beginning of Morgan Stanley's deceptions, the judge said.
At some
point prior to May 6, Morgan Stanley's technology team knew that 1,423 tapes
were sitting in a Brooklyn warehouse and had yet to be read. The tapes
contained e-mail dating back to the late 1990s. The company also dragged its
feet in restoring e-mails from 738 tapes at another facility.
Kirkland
attorney Thomas Clare did not inform Perelman's attorneys of the additional
tapes, which he labeled "newly discovered," until November, six
months after the May deadline. Even then, he failed to disclose how many tapes
were found, when they were found or when they would be searched, the judge
said. Kirkland has declined to comment, citing client confidentiality.
Morgan
Stanley continued to find hundreds of backup tapes earlier this year, in some
cases openly stored in places used to hold tapes.
In February
the company told the court that it did not turn over all e-mail attachments
because of a flaw in the software used to search old e-mails. It also disclosed
mistakes made in the search of employees with a Lotus Notes platform.
"The
prejudice to [Perelman] from these failings cannot be cured," the judge
wrote in a March 23 ruling. She went on: "The judicial system cannot
function this way."A Morgan Stanley spokesman said: "We respectfully
disagree with the court's ruling. Far from being a part of the Sunbeam fraud,
Morgan Stanley was a victim of that fraud, losing $300 million. In the event of
an adverse verdict, we believe we have grounds for appeal and intend to pursue
them to the fullest extent."
Judge Maass
suggested that one of the reasons Morgan Stanley withheld information was
because it wanted to hide a probe by the Securities and Exchange Commission
into its e-mail retention policies. The SEC requires securities firms to
preserve e-mails for two years.
Last week
the company disclosed that the SEC is considering enforcement action against it
for failing to retain e-mail and violating a 2002 cease-and-desist order
relating to e-mail. Morgan Stanley said it believes enforcement action is not
justified.
Now that the
judge has allowed the inference that Perelman was a victim of fraud, Perelman
may only have to prove that he relied on information provided by Morgan Stanley
and that he suffered damages. In seeking punitive damages, the judge said, he
also can argue that Morgan Stanley's behavior is "evidence of its malice
or evil intent."
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