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Not quite free at last: Fred Weichel and the inability of prosecutors to fully let go

Norfolk County Superior Court, Dedham, MA

Not quite free at last: Fred Weichel and the inability of prosecutors to fully let go

Norfolk County (Massachusetts) prosecutors announced on Monday that they do not intend to retry Fred Weichel, a South Boston man who spent 36 years behind bars for a murder the existing evidence suggests he did not commit. Yet the district attorney’s office took pains to clarify that the decision not to re-prosecute falls far short of an exoneration. On the contrary, the prosecution insisted that it “remains committed to retrying this defendant for the murder . . . if sufficient evidence were to become available.” The prosecutors’ unwillingness to release Weichel from the specter of prosecution, much less their reluctance to proclaim him innocent, creates a cloud that will hang over him for his remaining days.

In April, Superior Court Judge Raymond Veary, Jr., granted Weichel a new trial in a case that contained two hallmarks of many innocence cases: a dubious eyewitness identification and government misconduct. (Note: I serve on the Board of Trustees of the New England Innocence Project, a group that aided one of Weichel’s lawyers in the proceedings before Judge Veary.) Weichel’s saga began with the murder of Robert LaMonica outside his apartment in Braintree, Massachusetts, one night in 1980. A teenager told the police that he saw the assailant get into a car and rush away from the scene. Even though this witness had just polished off a six-pack of beer and was roughly 180 feet away from the crime scene, the police relied on him to help produce a composite sketch of the perpetrator. The police later escorted the witness to South Boston where he saw Weichel on the street and identified him. Despite Weichel’s claims of innocence and alibi evidence, the jury convicted him of murder.

The case largely languished until 2010 when information emerged about a police report made by a Braintree Detective shortly after LaMonica’s murder. In that 1980 report, the detective detailed how numerous state corrections officers had looked at the composite sketch and determined it resembled another man: Rocco Balliro, a former prisoner who had admitted to another murder and had just been granted furlough the day before LaMonica’s killing. This evidence was not disclosed to Weichel’s attorneys before trial and only came to light when Weichel’s new lawyers requested the full police file three decades later. As Judge Veary concluded, without this report at his disposal, Weichel could not properly undercut the teenager’s identification at trial, much less launch a third-party-perpetrator defense. Late last month the highest court in Massachusetts, the Supreme Judicial Court, affirmed Judge Veary’s decision to order a new trial.

It makes sense for prosecutors to forego a retrial 37 years after the murder. Balliro has since died, as have many witnesses in the case. The murder weapon was destroyed, the crime scene diagrams lost. What makes less sense is why prosecutors neglected to declare that Weichel, with 36 years of prison time for this crime under his belt, will never be retried.

Perhaps it’s human nature to keep your options open if given the choice. And absent a formal declaration of innocence by a court, the prosecution does enjoy the privilege to pursue a retrial down the road. But, realistically, what’s the likelihood the prosecution will ever exercise this option? Slim to none. Why then make such a public effort to preserve the chance to retry him at a later date? Anointing Weichel as innocent could, in theory, harm the state’s case in a subsequent civil lawsuit for monetary damages. (The pertinent Massachusetts statute suggests Weichel would likely still be eligible to seek wrongful conviction compensation.) Even accounting for liability concerns associated with a declaration of innocence, why not at least announce that Weichel will never be retried for practical and humanitarian reasons, such as the passage of time and the length of his incarceration? The possible explanations strike me as worrisome. Tunnel vision about Weichel’s guilt? Hubris? Callousness?

Prosecutors are supposed to be “ministers of justice” committed to fairness for all, including criminal defendants. In the Weichel case, this week’s announcement by the Norfolk County DA’s Office only goes partway down the path to justice. An acknowledgment by prosecutors that Weichel will never be retried would take us much farther in the right direction.

The views and opinions expressed in this article are mine and do not necessarily reflect the views of the Fair Punishment Project.

Lawsuit: Pretrial defendants in Louisiana victimized by racketeering scheme

Lawsuit: Pretrial defendants in Louisiana victimized by racketeering scheme

When Henry Ayo was arrested for allegedly trying to steal an air conditionerand jailed in the East Baton Rouge Parish Prison last August, he was financially dependent on his wife and unable to make bail. Paying thousands of dollars to secure his pretrial release from the jail was impossible at the time, yet the judge presiding over his case, Trudy White, showed no interest in his financial woes. Without thoroughly questioning Ayo to gauge his ability to pay and assess the potential safety risks associated with his release, the judge set a high bond of $8,000. She also informed Ayo that, upon his release, he would be under the supervision of Rehabilitation Home Incarceration (RHI), although she didn’t specify what supervision would entail.

Days later, an RHI representative clarified what the terms of the defendant’s supervision would be if he made bail. Ayo would remain on house arrest, but was allowed to go to work. He’d have to pay a $225 monthly supervision fee. He’d be required to pay for and wear an ankle monitor. He’d need to make daily phone calls to his monitor. If he violated any of the terms, Ayo could be arrested and jailed again.

Ayo’s wife spent the next two months saving up enough money for a bondsperson to get him out of jail. When the sum was finally paid, however, she was informed that Ayo wouldn’t be released until an additional $500 was paid to RHI — a cost that White hadn’t mentioned. A company representative allowed her to pay $225 instead, after which RHI instructed the jail to let Ayo go. But after his release, Ayo and his wife were still unable to pay the monthly supervision fee imposed by the company and had to forgo paying for electricity and water in order to send RHI $50 and $100 when they could scrape together the money. Additional late fees were imposed, even though Ayo and his wife clearly didn’t have a way to pay them. Meanwhile, Ayo never received the ankle monitor, which was supposedly paid for with some of funds given to RHI. By the time Ayo was convicted six months later, the couple had shelled out roughly $1,000 — and yet the company demanded another $200.

The details of Ayo’s case are outlined in a new class action lawsuit filed by the Southern Poverty Law Center (SPLC) and American Civil Liberties Union (ACLU) on Monday night. The organizations argue that RHI is involved in a racketeering and extortion scheme with the local Sheriff Sid J. Gautreax III, as well as Warden Dennis Grimes, the man who holds defendants in jail until RHI gives the green light to let them go. According to the lawsuit, which seeks monetary relief for the plaintiffs, Judge White knows of the arrangement and “indiscriminately orders [arrestees] to undergo supervision by RHI.” She’s allegedly been doing this ever since her 2014 re-election campaign, during which RHI Executive Director Cleve Dunn Sr. was hired for campaign marketing and his son, Cleve Dunn Jr., chaired the judge’s Campaign Committee. Once White orders defendants to undergo supervision with unspecified terms, Dunn Sr. ensures they won’t be released from jail until an initial $525 is paid to RHI — even after bail has been paid. Defendants, like Ayo, then have to pay steep fees imposed on them by the company.

“RHI Monitors and Dunn himself threaten supervisees with re-arrest if they fail to make financial payments or comply with RHI’s costly supervision conditions — without affirmatively inquiring into their ability to pay,” the lawsuit states. “Accordingly, supervisees pay (or attempt to pay) the fee out of fear of re-arrest and bond revocation by scraping together money from friends or family.”

The lawsuit says upwards of 300 defendants were allegedly roped into this scheme in 2015 and 2016.

“This is predatory and illegal. Rehabilitation Home Incarceration puts its own price on people’s liberty and forces them to pay up, over and over again,” Brandon Buskey, a senior staff attorney with the ACLU’s Criminal Law Reform Project, said in a press statement. “Worse, this could not happen without the court and the jail enabling this scam, and ignoring the rights of those charged and presumed innocent.”

While the suit itself is new, East Baton Rouge residents have decried the trend for over a year. WAFB 9, a local CBS affiliate, began investigating White’s ties to RHI as early as 2015.

Dunn is far from the only person to see dollar signs when he looks at criminal defendants in Louisiana. East Baton Rouge District Attorney Hillar Moore, III, has openly encouraged public defenders to increase their budgets by collecting application fees from indigent defendants in his parish and elsewhere. The state’s criminal justice system is funded by the collection of fines and fees from defendants — creating perverse incentives to arrest and prosecute as many people as possible.

These monetary incentives to lock people up exist outside of Louisiana as well. In addition to posting bail to be released from jail pretrial, it is common for defendants nationwide to pay various fees for their involvement in the criminal justice system once they’ve been convicted. They can be required to pay for their incarceration, court-ordered treatment, court-appointed counsel, victim restitution, and probation costs — money that is funneled into the pockets of police, prosecutors, courts, and other agencies that work alongside law enforcement (including private companies).

In the past few years, criminal justice advocates have argued that the collection of court fees traps people in legal debt and violates the Constitution. Amicus briefs pushing back against this practice have been filed in various courts across the country, arguing that poor people should not be penalized for being poor. In 2012, the nonpartisan Brennan Center for Justice and ACLU filed a brief that criticized the way Michigan enforces a “pay or stay” system by jailing people who can’t afford court costs. It also called on courts to give poor defendants alternative ways of paying back the state, such as requiring them to complete community service. This past March, the East Bay Community Law Center and more than 20 other community and legal organizations in California submitted a brief asking a state appellate court to encourage the dismissal of lower courts’ fines and fees when indigent defendants cannot pay. The brief was filed in support of a homeless and disabled mother who was caught driving on a suspended license and jailed for her inability to pay $220 in court costs.

The ACLU and SPLC’s lawsuit is just the latest legal battle in an ongoing war to end the two-tiered system of justice that criminalizes poverty in Louisiana, the so-called “Incarceration Capital of the World.”

But what makes East Baton Rouge defendants different from other poor people trapped in legal debt is that they have not yet been found guilty of anything. They are being forced by a private company to pay these fees — as opposed to following court-orders to do so post-conviction. Judge White is allowing RHI to rewrite the rules.

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Open DA seat in Fort Bend Co., TX is an opportunity for change

John Healey

Open DA seat in Fort Bend Co., TX is an opportunity for change

Fort Bend County District Attorney John Healey will be departing at the end of his term in 2018, ending a 26 year tenure as the elected prosecutor for Texas’ 10th largest county.

Healey, a Republican, was originally appointed to office in 1992 and has been reelected six times. He faced a general election challenger only once; in 2014, former assistant prosecutor Wilvin J. Carter ran against himHealy defeated Carter by winning 58 percent of the vote in a traditionally Republican-leaning county (although where more recent election results suggest a shift to the left underway).

Healey’s tenure has been marked by controversy. In 2014, Healey drew scornafter he delayed notifying defendants and their attorneys about the possibility of tainted evidence that was used to secure convictions. The issue arose after a former Houston-based Texas Department of Public Safety forensic analyst was fired for falsifying evidence, and, according to an inspector general’s report, acting “with total disregard for policy and procedure.”

While other area prosecutors acted quickly to notify defendants and their lawyers of the issue, Healey waited.

In the case of Jacob Estrada, Healey waited over a year.

Not only did Healey fail to inform Estrada that evidence used in his prosecution may have been tainted, but he also failed to tell him that the evidence had been destroyed.

Estrada’s drug conviction was ultimately thrown out by an appellate court and he was ordered released.

state bar complaint asserted that Healey should have notified prisoners like Estrada much earlier that their convictions were comprised, and might be overturned, because of the chemist’s misconduct. The bar complaint was eventually dismissed by a judge although the county ended up having to pay $120,000 to defend Healey and several other prosecutors in the process.

Healey also once took the old saw that a prosecutor could persuade a grand jury to “indict a ham sandwich” too literally when his office charged a high school sophomore with third-degree forgery — a felony — for attempting to buy a ham sandwich with a counterfeit $10 bill.

The student claimed he found the bill on the floor of his school and had no idea it was fake.

Over 6 months later, Healey’s office dropped the charges following a public outcry. (Healey said he dismissed the case “after a review of the evidence by my office, much of which was provided after the case was filed.”)

It remains to be seen whether or how the county’s significant population growth—Fort Bend was the country’s fastest growing large county between 2013–2015 — and its diversity might impact its choice for next top prosecutor.

Fort Bend voters may well look to adjacent Harris County, where District Attorney Kim Ogg ran and won as a reformer. Ogg has followed through on a campaign promise to decriminalize marijuana possession and has also called for reforming the money bail system that keeps many poor criminal defendants locked up for months or years while awaiting trial.

Healey said he wouldn’t follow Ogg’s lead with respect to decriminalizing marijuana possession. Whether Fort Bend voters want a different approach from their District Attorney will now squarely be up for grabs come 2018.

Thanks to Jake Sussman.

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