The Magazine for the Wrongly Convicted

Acquitted By Texas Court of Appeals and re- leased after 3 years im- prisonment for the murder of his wife who may be alive. See page 8

Acquitted by Utah Supreme Court of lewdness for show- ing his Sesame Street dia- Exonerated of eight per to two children. murders after 23 The State of Nevada’s See page 13 years of imprisonment lawyer repeatedly lied in Sweden. during her oral argu- See page 10 ments in the Nevada Su- preme Court. See page 16

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Lawyer Says Judges Think The Judiciary Belongs To Them Issue 58 JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 1 ISSUE 58Winter - WINTER 2015 Justice:Denied - Issue 58, Winter 2015 ISSN: 1937-2388 Table of Contents Convicted Of Her Husband’s Crime – The Raye Dawn Smith Story...... 3 England Seeks To Restrict Who Is Eligible For Wrongful Conviction Compensation...... 7 Charles Stobaugh Acquitted By Texas Appeals Court Of Murdering His Wife Who May Be Alive...... 8 “Judges think of the judiciary as something that belongs to them” — Attorney Alan Lud...... 9 Sture Bergwall Released From 23 Years Imprisonment After 8 Murder Convictions Overturned...... 10 Leila M. Dekker Guilty Of Improper Medical Conduct After Her Acquittal In Two Criminal Prosecutions..11 Utah Supreme Court Acquits Barton Bagnes For Showing His Sesame Street Diaper To Two Girls...... 13 Delaware P.D.’s Office Files Motions To Overturn Hundreds Of Tainted Drug Convictions...... 15 Trial By Perjury: Millionaire, Mania & Misinformation ...... 15 The State Of Nevada’s Lawyer Lied During Kirstin Lobato’s Nev. Supreme Court Arguments...... 16 Every Man Dies Alone – Review Of The Book...... 18

ustice Denied begins its 17th year with this issue. When sites dedicated to exposing individual cases or wrongful con- J Justice Denied’s first issue was published in February victions in general. The pervasiveness of the problem is 1999 it was a ‘voice in the wilderness’ alerting the world to indicated by the fact articles about wrongful conviction issues the widespread problem of the unreliability of the legal system in each of the fifty states and forty-six territories and countries in the U.S. and other countries to distinguish the innocent are among the almost 1,300 articles Justice Denied has pub- from the guilty. Today there are many dozens of organizations lished. We thank everyone who has supported Justice Denied, worldwide concerned with aiding convicted persons with a which is a volunteer non-profit organization that depends on credible claim of innocence, and there are hundreds of web- book sales and donations for its revenue.

Message From The Publisher Information About Justice:Denied Guilt by association and manipulation of the media against a suspect Justice:Denied promotes awareness of wrongful convictions and are two of the factors that resulted in the prosecution and conviction their causes. It provides information about convicted people of Raye Dawn Smith in Oklahoma for a criminal charge related to claiming innocence, exonerated people, and compensation the mistreatment of her deceased daughter by her husband, at a time awards, and provides book and movie reviews, and reports about when she wasn’t even present. See p. 3. court decisions, and law review and journal articles related to wrongful convictions. Being awarded compensation is challenging for exonerated persons in countries other than just the United States. England’s Home Office DO NOT SEND_JUSTICE:DENIED ANY LEGAL WORK! has been attempting for some time to significantly raise the bar to Justice:Denied does not and cannot give legal advice. compensation so it can only be awarded to those few persons who can If you have an account of a wrongful conviction that you want to prove their innocence “beyond a reasonable doubt.” See p. 7. share, send a first-class stamp or a pre-stamped envelope with a request for an information packet to, Justice Denied, PO Box It is an affront to the reliable functioning of the legal system when 66291, Seattle, WA 98166. Cases of wrongful conviction submit- a person is convicted of a crime that didn’t happened. The worst ted in accordance with Justice:Denied’s guidelines will be re- case scenario is when a person is convicted of murdering a person viewed for their suitability to be published. Justice:Denied who in fact may be alive. That is what happened to Charles reserves the right to edit all submitted accounts for any reason. Stobaugh in Texas after his wife went missing. See p. 8. Justice:Denied is published four times yearly. Justice:Denied is a The arrogance of judges whose sense of entitlement interferes with trade name of The Justice Institute, a 501(c)(3) non-profit organiza- their obligation to be impartial is a problem around the world. tion. If you want to financially support the important work of publiciz- During Argentina’s military dictatorship from 1976 to 1983 the ing wrongful convictions, tax deductible contributions can be made to: judiciary was an accomplice in the State’s terrorism against its The Justice Institute suspected political opponents, and judges disregarded their re- PO Box 66291 sponsibility to protect those people’s human rights. See p. 9. Seattle, WA 98166 A grave danger to an innocent person is when authorities pursue a Credit card contributions can be made on Justice:Denied’s website, conviction based on an uncorroborated confession. Sture Bergwall www.justicedenied.org/donate.htm was erroneously convicted in Sweden of eight murders with no credi- Please note: Justice Denied protects the privacy of its donors. ble evidence except for his false confessions. See p. 10. Justice Denied will not disclose its donors to any third party without presentation of a valid legal process. Hans Sherrer, Editor and Publisher www.justicedenied.org – email: [email protected] logo represents the snake of evil and injustice climbing up on the scales of justice.

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 2 ISSUE 58 - WINTER 2015 Introduction ankle. The next day, Raye Dawn Convicted Of Her Husband’s Crime — took Kelsey to the DHS office and n July 18, 2007, 27-year-old The Raye Dawn Smith Story reported her injury. ORaye Dawn Smith was con- victed of one count of enabling At Raye Dawn and Michael Por- 1 child abuse against her two-year- By Raye Dawn Smith’s Lawyers ter’s wedding on April 18, Kelsey old daughter Kelsey Shelton was still limping on her right leg. Smith-Briggs (“Kelsey”), who died on Oc- collarbone. Dr. Griffin did not suspect Raye A picture of Kelsey standing barefoot on the tober 11, 2005. She was sentenced to 27 Dawn of child abuse, or that it was a non- courthouse steps with Raye Dawn and Por- years in prison. accidental injury. ter was admitted during Raye Dawn’s trial. That evening, Kelsey went to stay with Kelsey was born on December 28, 2002. On January 14 at 6 p.m., Briggs picked up Briggs until April 21 at 4:00 p.m. Although Her mother Raye Dawn and her father, Kelsey from Raye Dawn and took her to a Kelsey had been standing hours earlier, Lance Briggs, were divorced. They had a birthday party at Briggs’ house. That night Briggs testified that Kelsey took four steps tumultuous marriage during which Lance no one changed Kelsey’s diaper until she and refused to walk the rest of the time she was charged with domestic abuse, and in was given a bath around 8:30 p.m. When had her. Briggs did not take Kelsey to the 2001 he pled guilty to assault and battery what looked like “bruises” were noticed on doctor during those four days. against Raye Dawn.2 Kelsey’s buttocks she was taken to the ER by her father Lance and her stepmother. Dr. On April 25, Raye Dawn took Kelsey to see Lance’s mother, Kathie Briggs (“Briggs”), Griffin once again examined Kelsey. Dr. Koons because Kelsey was not walking. and Raye Dawn did not get along. After Dr. Koons diagnosed Kelsey with two bilat- Lance was deployed with the military, in eral tibia fractures. Dr. Barrett is an orthope- August 2004 Briggs petitioned the Lincoln dic surgeon who evaluated Kelsey’s injuries County District Court and was granted grand- the next day. Dr. Barrett determined her parent visitation rights with Kelsey. Briggs injuries to be consistent with the account of immediately began making accusations to the what happened at the zoo. Dr. Barrett be- Oklahoma Department of Human Services lieved Kelsey’s right leg was injured at the (“DHS”) against Raye Dawn.3 The back and zoo, and the injury to her left leg likely forth visitation and Briggs’ bad blood for occurred because she put all her weight on Raye Dawn took its toll on Kelsey’s physical the left leg. Dr. Barrett did not believe the well being. Raye Dawn repeatedly scheduled fractured legs were child abuse. Dr. Barrett appointments with doctors and medical spe- put casts on both of Kelsey’s legs. cialists when she attempted to find out what was medically wrong with Kelsey.4 On May 2, Briggs took Kelsey to see Dr. Kelsey Shelton Smith-Briggs and her mom Raye Dawn Smith Sullivan in Oklahoma City concerning her On April 18, 2005, Raye Dawn married legs. Based on Briggs’ “story” to him and Michael Porter (“Porter”) and they lived in Briggs notified the Meeker Police Depart- additional X-rays he took of Kelsey, Dr. Sul- Meeker, Oklahoma — about 45 miles east ment about the marks on Kelsey’s bottom, livan decided the leg fractures were the result of Oklahoma City.5 The closest hospital and their investigation concluded there was of child abuse, and he removed Kelsey’s was in Shawnee, about 13 miles south. no evidence of abuse. The Lincoln County casts. During Raye Dawns’ trial he testified District Attorney’s Office declined to file on cross-examination the fractures may have Whenever Briggs contacted DHS Raye charges, but DHS decided to move forward occurred on a date Kelsey was with Briggs. Dawn had to defend against her accusa- with a separate child abuse investigation — tions. So much energy was spent dotting I’s which determined there was no abuse. On May 3, DHS took Kelsey into protective and crossing T’s, completing evaluations, custody, and a deprived child petition was attending court and scheduling visitations, On January 24, Briggs filed and received filed the same day. The petition listed an that the true threat: Michael Porter, slipped emergency guardianship of Kelsey. Briggs “unknown perpetrator” of Kelsey’s two bi- by undetected. had sole custody of Kelsey until February lateral leg fractures. 11, when Raye Dawn was allowed super- Kelsey’s Life vised visits with Kelsey. In March 2005 Briggs’ campaign against Raye Dawn Kelsey’s hair began falling out, after almost Kelsey was a child full of life and energy.6 two-months under Briggs’ guardianship. There was limited evidence of abuse of She climbed on things, leaned on things and The doctor reported it as alopecia, which is Kelsey and no evidence as to a perpetrator.7 jumped off things. She tested the boundar- a disease caused by poor nutrition. Kathie Briggs had the same privileges and ies of her environment and learned the abil- restrictions as Raye Dawn. On May 17, 2005 ities of her body. Like any good mother, On March 11, an agreement was reached the Meeker Police Department investigated when necessary, Raye Dawn sought medi- under which Raye Dawn had unsupervised Briggs for harassing and stalking Raye Dawn. cal attention for her daughter. visits with Kelsey. In retaliation, Briggs reported Raye Dawn to the police for driving with an expired tag. On January 10, 2005, Raye Dawn brought On April 14, Miste Smith, Raye Dawn’s Kelsey to the Unity North Hospital Emer- sister-in-law, took Kelsey to the zoo. Kelsey During the June 14 and 15 deprived hearing gency Room in Shawnee because Kelsey wore purple platform flip-flops, and turned Lincoln County District Judge Craig Key had fallen out of her crib and injured her her ankle while playing. Raye Dawn and dissolved Briggs’ visitation with Kelsey, and right shoulder. Dr. Carl Griffin examined Miste took Kelsey to the emergency room Kelsey in the ER for a possible broken where she was diagnosed with a sprained Smith cont. on page 4

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 3 ISSUE 58 - WINTER 2015 Smith cont. from page 3 p.m. and began performing On October 17, six days af- manual CPR. An ambulance ter Kelsey’s death, Porter’s ruled the abuse was by an “unknown perpe- dispatched from the Prague seven-year-old daughter, trator.” He ordered Kelsey returned to Raye Community Hospital arrived W.P., made statements about Dawn’s home, and also ordered involvement approximately four minutes her father to her school in her case by DHS, Court Appointed Special later. They intubated Kelsey counselor, Ms. Gibson. She Advocates (“CASA”), and Comprehensive and placed her on an EKG said she heard Kelsey getting Home-Based Services (“CHBS”). monitor, and she arrived at the a spanking upstairs, and hospital at 3:59 p.m. when she looked inside the Angered by Judge Key’s decision, Briggs doorway she found her fa- began to contact the media, place stories Physician’s Assistant Melissa ther spanking Kelsey “real about the Smith family in the public domain, Gibson was in charge of the hard.” [H.C. Ex. 3, “ W.P. and sponsored a candidate to run against ER. She estimated Kelsey had Interview.”] W.P. said her Judge Key. This began the media circus into been “down” for about 45 min- dad spanked Kelsey until she the life and tragic death of Kelsey Smith utes when she arrived at the threw up and it left her bot- 8 Briggs. For example, on August 19, 2005, hospital. Therefore, Kelsey’s Kelsey Shelton Smith-Briggs tom “real red.” [Id.] W.P. Raye Dawn, Porter and Kelsey were involved injuries occurred around 3:15 also said her dad was nice to in a serious motor vehicle accident. The point p.m. when Raye Dawn was not home. Kelsey when people were around, but when of impact was so violent that it caused the no one was looking he would be mean to truck to turn 180 degrees and “totaled” the The ER staff continued to “code” Kelsey for her. W.P. also told Ms. Gibson she saw her vehicle. As a precaution, Raye Dawn had 45 minutes before her death was declared at dad hit Kelsey’s head up against a brick Kelsey examined at the hospital. The triage 4:45 p.m. wall outside on the house. nurse who examined Kelsey advised Raye Dawn to follow up with Kelsey’s pediatrician, Raye Dawn’s pastor Charles Pearcy went to Charges against Porter and Raye Dawn which she did. In their continued harassment the hospital to lend support. Pearcy spoke of Raye Dawn and in the face of direct evi- with an emotional Raye Dawn about losing On October 20 — nine days after Kelsey’s dence of the cause of Kelsey’s injuries, the her baby. They prayed together. Raye Dawn death — Porter was charged with first-de- Briggs family released pictures of Kelsey held Kelsey and rocked her. According to gree-murder. after the car wreck to the news media. Pearcy, Porter provided no comfort to Raye Dawn. PA Gibson also observed that Porter Briggs, an endorsed witness by the State, Day of Kelsey’s death did not console Raye Dawn. Porter told and her daughters began e-mailing Porter in Pearcy he blamed himself and said, “I just January 2006. Porter was sent dozens of During the noon hour of October 11, 2005, hope I wasn’t too rough with her.” [Trial e-mails. Briggs set up a meeting with Porter Patti Bonner, a CHBS worker, visited Raye Tr.VII 1608-09] Porter was seen slamming in January 2006. Subsequently, Briggs told Dawn at her house in Meeker. Ms. Bonner his fist into the bed of his pickup and nervous- Lincoln County D.A. Richard Smothermon observed that Kelsey had a band-aid on one ly pacing back and forth saying, “She’s never the State could use Porter as a witness to finger and a sore right toe. Ms. Bonner left the going to forgive me.” [Trial Tr.VII 1616-17.] prosecute Raye Dawn. home at 1:30 p.m. According to Porter’s testi- Raye Dawn wanted an autopsy performed on mony, he arrived home from work around Kelsey to find out what happened to her, During this time, Briggs and her supporters 2:45 p.m. to find Raye Dawn and Kelsey while Porter objected to an autopsy. relentlessly picketed the D.A.’s Office to taking a nap in the bedroom. Shortly thereaf- pressure Smothermon into prosecuting ter, Raye Dawn left Kelsey in bed and went to On October 12, Dr. Yacoub from the Okla- Raye Dawn. Brigg’s tactics were success- pick up Porter’s daughter from school. homa City Chief Medical Examiner’s of- ful. On February 24, 2006, Raye Dawn was fice, conducted an autopsy of Kelsey. He charged with enabling child abuse. That Porter testified during Raye Dawn’s trial determined her manner of death was homi- charge was amended on March 16, 2007, that while she was gone he heard a noise cide, resulting from blunt force trauma to with alternative counts of enabling child from the bedroom that caused him alarm, her abdomen, and he also found trauma to abuse and child abuse. and upon walking into the bedroom he no- her genital area. During Raye Dawn’s trial ticed Kelsey was blue. He said he picked Dr. Yacoub testified all of Kelsey’s injures Raye Dawn and Porter were divorced after Kelsey up and circled the living room hold- appeared recent. Kelsey’s death. ing her and trying to resuscitate her by ask- ing her what was wrong. Sometime between On October 13, Raye Dawn and her family Six months after the first autopsy, the State 3:10 and 3:15 p.m. he called Gayla Smith, made Kelsey’s funeral arrangements. had Kelsey’s body exhumed for a second Raye Dawn’s mother. Gayla told Porter to autopsy, which was conducted on April 25, call 911, which he did. Porter testified he When OSBI questioned Porter about the 2006 by Dr. Dean Hawley with the Indiana called Gayla first because he “didn’t want to case, he almost passed out. Porter told the University School of Medicine. Dr. Hawley believe how bad it was.” [P.Tr. 281.] Porter OSBI that he had never seen Raye Dawn determined Kelsey’s body demonstrated in- testified he laid Kelsey on the kitchen island beat Kelsey or ever lose control with her. juries of forcible sexual assault. and he tried to give her a couple of breaths, When asked by investigators whether Raye and that he put a diaper on her because he Dawn could beat Kelsey until she died, On July 21, 2006, an Amended Information didn’t want anyone to see her without one. Porter said, “Never, never. She would never was filed against Porter charging him with hurt her.” [P.Tr. 288-89.] The agents asked first-degree murder or in the alternative child Volunteer firemen were dispatched at 3:16 this over and over again, and Porter always abuse or sexual abuse of a child. Five days p.m. by the Lincoln County Sheriff’s Office, gave the same answer. and they arrived at Kelsey’s home at 3:27 Smith cont. on page 5

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 4 ISSUE 58 - WINTER 2015 Smith cont. from page 4 Dawn of child abuse, but found her guilty of heart surgery in December 2006. (p. 34) “enabling child abuse” — the same charge before Porter was set to go to trial, he pled D.A. Smothermon allowed Porter to pled to. The Affidavit of Juror D. B. states: guilty to enabling child abuse in exchange for The jury recommended a 27-year sentence L.E., a fellow juror, slept continuously a 30-year prison sentence, and his agreement of imprisonment, which the judge imposed throughout the trial. I voiced concern to to testify against his ex-wife Raye Dawn. on September 10, 2007. the judge’s bailiff that L.E. was not stay- Porter’s plea agreement allowed him to avoid ing awake and was not paying attention. a possible death sentence or life in prison if Raye Dawn appeals conviction I was told by the bailiff to nudge L.E. to convicted after a trial, and it also allowed him keep her awake. I believe she should have to bypass the requirement to register as a sex Ten days later, been removed from the jury because she offender upon his release.9 on September 20, Raye Dawn slept and did not pay attention. (p. 33) Raye Dawn’s trial filed a motion for a new trial in Ground 2 asserts that because the jury was Due to intense pretrial publicity Lincoln the Creek not properly sequestered during the trial and County Judge Paul Vassar granted a change County District in various recesses, it was permitted to be of venue for Rae Dawn’s trial. However it Court. After her exposed to extraneous media coverage and was more symbolic than substantive be- motion was de- to conversations with the Briggs family, cause he ordered it moved to Bristow — nied on Decem- thereby receiving evidence outside of court. only 40 miles away — in Creek County ber 6, 2007 she It states in part: where his brother served as judge. filed her notice There can be no doubt that Raye Dawn’s of intent to ap- trial was conducted in an atmosphere of Raye Dawn’s trial began on July 9, 2007. peal to the a “Roman Holiday” for the news media. Bristow is a small town of 4,500 and it’s Oklahoma Raye Dawn Smith (Okla. DOC, April 1, 2011) Certainly all that is implicit in the bac- municipal building housed the small court- Court of Crimi- chanalia of a “Roman holiday” is direct- room where witnesses, parties, lawyers, ju- nal Appeal (“OCCA”). After years of legal ly out of phase with the serious and rors, and the media constantly mixed with maneuvering, on January 31, 2011 the OC- ordered decorum which is supposed to each other during the trial. Everyone, in- CA affirmed Raye Dawn’s conviction, and be the controlling environment of our cluding the jurors, were able to mingle dur- their ruling became final on May 1, 2011. American criminal trials. From the date ing meals because of the limited number of of Kelsey’s death on October 11, 2005, restaurants in town. On April 27, 2012 Smith filed a timely writ of through the conclusion of Raye Dawn’s habeas corpus in federal court in Oklahoma sentencing, Oklahoma was saturated The prosecution’s strategy at trial was to City. Smith’s federal petition asserts eight with publicity prejudicial to Raye present evidence and testimony to try and grounds for relief. Her brief in Raye Dawn Dawn. [] All of the newspapers and establish a pattern of abuse against Kelsey Smith v. Millicent Newton-Embry, No. 5-12- media coverage were critical of her, and that Raye Dawn had to be aware of. Howev- cv-00473-C (USDC WDOK) was filed on whetted the public appetite for her con- er, the State’s “abuse theory” was not sup- September 28, 2012, and the page numbers viction. [] Much that was never offered ported by the factual evidence presented below in brackets (p. __) refer to that brief. at trial, and would not have been admis- because: (1) Kelsey sustained illnesses, sible if offered, was published as fact by bumps and bruises in the care of numerous Grounds 1 and 2 relate to Raye Dawn’s con- newspapers, the media and on the individuals (Raye Dawn, Kathie, Miste and stitutional right to due process was violated Kelsey’s Purpose website. [] Briggs in- Gayla); (2) the medical evidence did not by the jury’s inability to render a fair verdict. stituted a calculated campaign with the support the theory there was a pattern of assistance of the media to have Raye abuse; and (3) the circumstances surround- Ground 1’s assertion that a female juror iden- Dawn arrested, charged and convicted, ing Kelsey’s injuries, including the opin- tified as L.E. slept continuously throughout and her campaign was eminently suc- ions of Kelsey’s doctors, showed Raye the trial is supported by affidavits executed cessful. [] Despite a court imposed gag Dawn’s state of mind was of a mother con- by four jurors — in addition to an affidavit by order and repeated violations [], the me- stantly seeking medical treatment and an- L.E. herself in which she states: dia onslaught by Briggs and her sup- swers for her daughter’s injuries. I served as a juror in the above-styled porters was relentless. (pgs. 40-41) Porter was presented as a prosecution witness, case. During the trial, I continually fell Moreover, while the court allowed for a even though D.A. Smothermon had stated on asleep and the woman next to me was change of venue, it declined to sequester the record that he believed Porter murdered told to nudge me to keep me awake. the jury during Raye Dawn’s trial, re- and sexually assaulted Kelsey. When Porter Several jurors nudged me off and on fused trial counsel’s request for individ- testified that Raye Dawn was “responsible” during the trial to keep me awake. Later, ual voir dire, and ultimately conducted a for Kelsey’s death, and that he was only “in- I discovered I was low on potassium. limited and superficial half-day voir dire directly” responsible, [P.Tr. at 252.] Smother- During the trial over the intervening despite the existing media circus. (p. 42) weekend, my granddaughter took me to mon again stated that he disagreed with It would be “blinking reality” in Peti- the Indian Hospital in Okeema. It was Porter. [Id. 253-259] A key part of Porter’s tioner’s [Raye Dawn’s] case not to rec- discovered that I was low on potassium, trial testimony is it supported he was home ognize the prejudice inherent in the and my physician reminded my that I alone with Kelsey during the 30 minutes be- continual association of jurors, news needed to remember to take my supple- fore he called Raye Dawn’s mother to ask her media and members of the Briggs fami- ment. I have a prescription for potassi- what to do about Kelsey not breathing. ly as they congregated at the front en- um, but I never can remember to take it. After an eight day the jury acquitted Raye I have been on potassium supplement and other medications since my open Smith cont. on page 6

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 5 ISSUE 58 - WINTER 2015 Smith cont. from page 5 the emergency room that afternoon, and Dr. Griffin testified that it is the most Kelsey was diagnosed with a sprained commonly broken bone in the body. trance to the courthouse in the ankle. [] ... Miste testified that on April Second, Kelsey sprained her right ankle mornings, on breaks, at lunch time and 16 she could not get Kelsey to sit down under the exclusive control and custody at the end of the day. (pgs. 51-52) and Kelsey wanted to jump on the tram- of her aunt, Miste Smith. Raye Dawn poline. [] ... On April 18, Kelsey was was at work. Third, the leg fractures Ground (Proposition) 5 that asserts “There standing in a photo taken on the court- date back to a time when Kelsey was Was Insufficient Evidence to Support the house steps at Raye Dawn and Michael under Briggs’ control. (p. 94) Verdict Reached by the Jury,” states in part: Porter’s wedding. (p. 87) In conclusion, for months, Raye Dawn There is absolutely no evidence in the Witnesses testified at trial that Kelsey was under the careful eye and watch of record to prove beyond a reasonable was walking on her right foot while at numerous individuals, state agencies and doubt that Petitioner [Raye Dawn] per- the shopping mall later that day (April her all-intrusive ex-in-laws, the Briggs mitted anyone to abuse Kelsey ... Under 18). [] ... Four days later, when Briggs family. ... Raye Dawn did not abuse the above cited statute, it logically fol- returned Kelsey to Raye Dawn, Kelsey Kelsey and/or enable Porter’s abuse of lows that for someone to enable abuse was not walking. [] Briggs did not seek Kelsey, as no one suspected that Michael another must commit the abuse. Yet, no medical attention ... [] On April 25, Raye Porter, a man with two healthy children one has confessed and/or been convict- Dawn brought Kelsey to the doctor and of his own, would abuse Kelsey. (p. 94) ed of abusing Kelsey. ... (pgs. 85-86) she was diagnosed with bilateral tibia fractures consistent with her previous The briefing in Smith’s habeas case was The State’s strategy at trial was to pres- fall at the zoo, and then overcompensat- completed on January 28, 2013, and she is ent evidence and testimony that estab- ing on the left leg. [] ... (pgs. 87-88) awaiting the federal court’s ruling. lished a pattern of abuse against Kelsey ... She [Raye Dawn] was not with that Raye Dawn had to be aware of. Raye Dawn’s federal habeas corpus brief Kelsey during the initial sprain and was However, the State’s “abuse theory” is can be read online at, not with her during the subsequent frac- not supported by the factual evidence for www.justicedenied.org/cases/rayedawns ture. The time line suggests that it is the following reasons: (1) Kelsey sus- mithhabeasbrief9-28-12.pdf . tained illnesses, bumps and bruises in more likely that Kelsey was under Briggs’ control when the fractures oc- the care of numerous individuals (Raye Numerous documents related to Raye Dawn, Kathie, Miste and Gayla); (2) the curred. [] (pgs. 88-89) ... Dawn’s case — including DHS reports, medical evidence does not support the Arrest Charges, Witness affidavits, and oth- theory that there was a pattern of abuse; Additionally, if one follows the theory that Porter murdered Kelsey, which is er exhibits — can be read at, and (3) the circumstances surrounding www.freekelseysmom.com . Kelsey’s injuries, including the opinions what the evidence at trial suggested, Raye of Kelsey’s doctors, show that Raye Dawn could not have known or reason- ably should have known that Kelsey A Facebook page about Raye Dawn’s case is, Dawn’s state of mind was not to enable www.facebook.com/pages/Free- abuse, but rather was a mother seeking would be placed at risk by leaving her with Porter on October 11, 2005. Simply Innocent-Raye-Dawn-Smith-From-The medical treatment and answers for her LIES/370421349781 . daughter’s injuries that were consistent put, Raye Dawn could not have predicted with her doctor’s explanations. (p. 86) Porter’s homicidal tendencies, and no one else suspected him either. [] (p. 90) Websites about Raye Dawn’s case are: The State primarily relied upon two inju- www.rayedawnsmith.com/ ries — the broken collarbone and the two Briggs testified that she had no specific www.thetruthaboutkelsey.com/ leg fractures — to show that there was a concerns about Porter. [] ... The back- pattern of abuse. However, the State’s ground check performed by DHS on own witness, Dr. Griffin, testified that the Michael Porter came back clean. [] (pgs. collarbone is the most commonly broken 90-91) bone in the human body. [] The Meeker ... Police Department investigated Kelsey’s In summary, the medical evidence indi- broken collarbone and did not file charges cates a number of reasons, aside from against Raye Dawn, ruling out abuse. [] abuse, for the cause of Kelsey’s failing DHS also ruled out abuse to the collar- health and injuries. Moreover, as evi- bone. [] Without more, a collarbone break denced in the trial transcript, Kelsey’s from a child climbing out of her crib is not health began to fail while Briggs had concerning at all. Such an injury is com- guardianship of Kelsey. ... Kelsey re- mon to a child Kelsey’s age. Raye Dawn’s ceived injuries while with many differ- older sister, Janet Gragg, testified at trial ent people on both sides of the family. ... that her child had suffered not one, but Without a pattern of abuse, Raye Dawn two broken collarbones. [] (pgs. 86-87) cannot be guilty of enabling child abuse. (pgs. 93-94) Second, the State relied on Kelsey’s leg fractures as evidence of prior abuse. Additionally, there is no medical evi- Trial evidence established that Kelsey dence to support abuse by the hand of was not with Raye Dawn on April 14 Raye Dawn or that she had knowledge when she sprained her right ankle at the of an abuser. Both the Meeker Police zoo. [] Kelsey was with her Aunt Miste. Department and DHS ruled out abuse as [] Miste and Ray Dawn took Kelsey to the cause of the collarbone break, and Smith cont. on page 7

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 6 ISSUE 58 - WINTER 2015 Smith cont. from page 6 have been compensated England Seeks To Re- who were wrongly con- The Naked Truth Bound in Scorn: an Okla- strict Who Is Eligible For victed in some of Eng- homa story, by Judy Ortiz (2010), 610 pgs., land’s most outrageous is a true crime story of Raye Dawn Smith’s Wrongful Conviction wrongful conviction case. The book is available from: Compensation cases. John McDonnell www.boundinscorn.com/ and, (Hayes and Harlington, Amazon.com at: Labour) for a number of www.amazon.com/The-Naked-Truth-Bound- ngland’s Home Secretary Theresa May is backing a change to the legal stan- years chaired the cam- Scorn/dp/1453846425/ref=as_sl_pd_tf_mfw? E paign to free the Guild- John McDonnell &linkCode=wey&tag=jodort-20 dard a person must meet before qualifying (Longtime chair of for compensation after their conviction has ford Four. McDonnell the campaign to free been overturned and the charges dismissed. stated during debate the Guildford Four) Bashboard Bullies, by Jody Ortiz, 2011 on the bill: (682 pgs. paperback, 717 pgs. Kindle ed.). This book is Judy Ortiz’ follow-up to The Currently a person whose conviction has been “Let us take the Birmingham Six as our Naked Truth Bound in Scorn. Available in overturned can qualify for compensation from example. As soon as the confessions softcover from: the British government if they can prove “be- were seen to be completely false, they www.boundinscorn.com/ , yond reasonable doubt that there has been a were released on the basis that their and, as Kindle E-book from Amazon.com at: miscarriage of justice.” In 2013 Home Secre- prosecution was unsound. However, to http://www.amazon.com/Bashboard- tary May proposed changing the standard to a gain compensation they will now have Bullies-Jody-Ortiz person qualifies “if the new or newly discov- to go out and prove they “did not com- ebook/dp/B0080DCMNC ered fact shows beyond reasonable doubt that mit” or they were “innocent”, whichever the person was innocent of the offence.” terminology is decided on.” Former Judge Craig Key’s book about the case is, A Deadly Game of Tug a War: The Proponents of the Damian Green is the Minister for Policing and Kelsey Smith-Briggs Story, (Morgan James change to the word- Criminal Justice, and a stanch advocate of the Pub. Co. 2007) (145 pgs. h/c). It is avail- ing said it was neces- more restrictive wording. He didn’t dispute able in softcover, hardcover, and Kindle sary to clarify who the Birmingham Six (freed in 1991) and the E-book from Amazon.com at, qualified for com- Guildford Four (freed in 1989) wouldn’t have www.amazon.com/Deadly-Game-Tug-War- pensation. Oppo- been compensated under the proposed new Craig/dp/1600373119/ref=tmm_pap_swatc nents to the change compensation standard. However, Green de- h_0?_encoding=UTF8&sr=&qid= argued that the new fended the change by arguing: “In our view standard eliminated Theresa May, compensation should be paid only to appli- Raye-Dawn Smith can be written at: the presumption of British Home secretary cants where it is shown beyond reasonable Raye-Dawn Smith 562251 innocence and creat- (ceasefiremagazine.co. doubt that they did not commit the offence.” Mabel Bassett Correctional Center ed an impossibly high standard for anyone 29501 Kickapoo Road to meet who didn’t have new scientific evi- The fate of the Anti-Social Behaviour, Crime McLoud, OK 74851 dence of their innocence or who was con- and Policing Bill and the change to the stan- victed of a crime that didn’t happen. dard of who will qualify for compensation is Endnotes: yet to be decided. However, Home Secretary [1] This article is an edited version of the Statement Of The Facts (pgs. 14-28), and Proposition V (pgs. 84-94) in the The changed definition is part of the Anti- May's advocacy for the more restrictive stan- “Brief In Support Of Petition For Writ Of Habeas Corpus Social Behaviour, Crime and Policing Bill dard mirrors the Home Office's staunch op- By A Person In State Custody Pursuant To 28 U.S.C. § that was passed in 2013 in the House of 2254 (filed Sept. 28, 2012), signed by Raye Dawn Smith’s position to almost all compensation claims attorney Stephen Jones, in the case of Raye Dawn Smith v. Commons (roughly equivalent to the House under the existing standard where an exoner- Millicent Newton-Embry, No. 5-12-cv-00473-C (USDC of Representatives in the U.S.). In January ated person must only prove he or she was WDOK). Mr. Jones; contact info is: Stephen Jones; Jones, Otjen & Davis; P.O. Box 472 Enid, Oklahoma 73702-0472. 2014 the Bill was rejected in the House of the victim of a “miscarriage of justice.” [2] See, State of Oklahoma v. Raymond Briggs, CM-2001- Lords (roughly equivalent to the Senate in 143, District Court of Lincoln County, State of Oklahoma. the U.S.), in part due to the changed word- Sources: [3] See Craig Key, A Deadly Game of Tug a War: The ing of who will qualify for compensation. Clause 151 — Compensation for miscarriages of jus- Kelsey Smith-Briggs Story, note 4 at pp. xi, 40, 51-52 (Mor- tice, Anti-Social Behaviour, Crime and Policing Bill, gan James Pub. Co. 2007). Judge Craig Steven Key presided theyworkforyou.com (Programme) (No. 3), February over the deprived child petition regarding Kelsey filed in The Bill was returned to the House of Com- 4, 2013 Lincoln County, Case No. JD-2005-10. The trial court did mons and to placate the opposition the new UK law: Renewed bid to make it difficult for those not allow former Judge Key to testify as a fact witness on wrongfully convicted to claim compensation, The Irish Ms. Smith’s behalf during her criminal trial. The defendant standard was amended to a person would Times, February 3, 2014 offered a proffer at trial (O.R. 1105), and former Judge Key have to prove: “if the new or newly discov- provided herein an affidavit of what his testimony would have been. See H.C. Ex.44, “Affidavit of Craig Key.” ered fact shows beyond reasonable doubt [4] See Key at pp. 43, 51-53, 64, 67, 70. that the person did not commit the offence.” [5] See Key at p. 8. [6] See Key at pp. 2, 41, 52. During debate in the House of Commons on [7] See Key at pp. 70-72. February 4, 2014 opponents argued the Justice Denied’s Facebook page is [8] See Key at pp. 99-105. change was merely semantics because a per- regularly updated with information [9] Porter was sentenced to 30 years in prison on August son would still have to prove their innocence, related to wrongful convictions. Jus- 3, 2007 — about two weeks after Raye Dawn was convict- i.e., they “did not commit the offence.” ed. Porter acknowledged during his plea/sentencing hear- tice Denied’s homepage has a link ing that he would have to serve at least 25-1/2 years in to the Facebook page. prison before he could be released. See, “Plea made in Opponents also argued that under the pro- Kelsey’s death,” By Kim Morava, Shawnee News- www.justicedenied.org Star, Aug. 03, 2007. posed new standard the people would not

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 7 ISSUE 58 - WINTER 2015 phone in the bedroom to talk with them pri- Charles Stobaugh Ac- vately. None of those men were investigated quitted By Texas Appeals as a possible suspect after she went missing. Court Of Murdering His No evidence of violence or a struggle was Wife Who May Be Alive found at Kathy’s rental house or the farm, and nothing suspicious was found in either he Texas Court of Appeals has acquit- her or Stobaugh’s vehicle. Neither did the Tted Charles Stobaugh of murdering his police investigation discover any evidence wife Kathy Stobaugh in 2004 in Denton she was dead, only that she hadn’t contacted County, Texas. Stobaugh was convicted in her family and friends since the evening of Charles Stobaugh released from the Denton County December 29, 2004. Jail with his son Tommy (L) and daughter Charee (L). 2011 and sentenced to 25-years in prison. (David Minton - Denton Record-Chronicle)

Charles and Katherine (Kathy) Stobaugh mar- Kathy’s disappearance was featured on Appeals overturned Stobaugh’s conviction ried in 1984 and they had two children. In Dateline NBC in May 2007. In the program on the basis the prosecution had presented 1991 they bought a 105 acre farm outside her family said they didn’t think investiga- insufficient evidence to support his convic- Sanger, Texas, in Denton County. In May tors were doing enough to solve the case. tion, and ordered his acquittal. In Charles 2004 Charles and Kathy separated, she filed Stobaugh v. Texas, No. 02-11-00157-CR for divorce, she took half the money (about Although there was no direct evidence (2nd Dist. Ct. of Appeals, 1-23-2014) the $39,000) they had in a joint bank account, she Kathy was dead or Stobaugh had killed her, Court ruled: moved into a rental house in Sanger, and she he was indicted in November 2009 for mur- dering her. After Stobaugh’s indictment the “... there is no body, no murder weapon, got a job as a kindergarten teacher. There was no witnesses, no blood or DNA evidence; no court ordered visitation, and the couple’s police discovered that Kathy’s boyfriend Rocky only had an alibi up to 9 p.m. on the there are no fibers, hairs, or any type of 16-year-old daughter Charee, who drove, and forensic evidence establishing that a mur- their 13-year-old son Tommy, freely traveled evening of her disappearance, but he wasn’t investigated as a suspect. der occurred; and there is no confession or between the farm and their mom’s rental directly incriminatory statement by house that were less than ten minutes apart. During Stobaugh’s trial that began in January Charles. Although the evidence viewed in Charles and Kathy’s separation was amicable. the light most favorable to the State does Kathy kept a key to the farm house, Charles 2011 the prosecution’s case was based on circumstantial evidence and inferences that establish a possible motive for Charles to continued to service her car by changing the kill Kathy and a definite opportunity to do oil, and the entire family Kathy must be dead because she was last seen or talked with by her family and friends so, Charles’s motive and opportunity to spent the July 4th 2004 murder cannot alone establish that a mur- holiday at the home of on December 29, 2004. The prosecution claimed that because of their pending divorce der has occurred, cannot link Charles to a Charles’ mother, they murder without evidence that there was a spent Tommy’s 13th he had motive, and because he regularly saw her he had the opportunity to kill her. Al- murder, and certainly cannot establish the birthday together, and in mens rea for murder. In the absence of August 2004 they went though the prosecution introduced evidence Stobaugh had made several false and incon- evidence of a murder, Charles’s motive Kathy Stobaugh to the Missouri State Fair for murder and opportunity to murder are (Family) together. sistent statements, they didn’t implicate him in her disappearance from Sanger. meaningless. [Id. at 167] Because no evidence exists in the record Kathy told several friends on December 27 or before us that a murder has occurred, 28, 2004 that Charles had agreed to the di- Stobaugh’s defense was the prosecution Charles’s utterance of false statements vorce, and although he wanted to sell every- didn’t present any evidence his wife was or inconsistent statements does not, by thing and split the proceeds, he agreed with dead, no evidence he had harmed her, and no itself, create an inference that a murder her the farm shouldn’t be sold because Tom- evidence he had committed any crime related or any wrongful conduct has occurred. my loved it, while other community property to his wife. Stobaugh lawyer argued to the [Id. at 168] would be sold and split down the middle. jury the prosecution case wasn’t based on evidence, but merely the suspicion he killed ... because none of the evidence estab- Kathy was last seen or talked with by her her since she hadn’t been seen in Sanger lished that the offense (murder) had oc- family or friends on the evening of December since December 2004. Stobaugh’s lawyer curred, all of the rest of the State’s 29, 2004. After she was reported missing on also brought up Kathy’s “secret lover” Rocky circumstantial evidence that “was per- January 3, 2005 the police investigation dis- and the other men in her life that hadn’t been haps suspicious” but did not establish covered she had a “secret” boyfriend named investigated as suspects. the commission of the offense, was Rocky who she had seen numerous times, mere “suspicion linked to other suspi- that she made three phone calls to him the The jury convicted cion.” [Id. at 169] Stobaugh of murder on evening of December 28 -- the day before she Having sustained Charles’s first point was last seen in Sanger — and that she had February 16, 2011, and two days later the judge challenging the sufficiency of the evi- been planning a trip to Florida. Although dence to support his conviction, we re- none of Kathy’s family or friends knew about sentenced him to 25 years in prison. verse the trial court’s judgment and her relationship with Rocky, he was not in- render a judgment of acquittal. [Id. at vestigated as a possible suspect. It was also 176] (Underlining added to original text.) discovered that a number of unknown men Stobaugh appealed. On called Kathy’s rental house when her daugh- January 23, 2014 Texas’ Second District Court of Charles Stobaugh ter was there, and that she would take the (TX DOC) Stobaugh cont. on p. 9

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 8 ISSUE 58 - WINTER 2015 to snatch babies. ... There is a huge pact “Judges think of the judi- of silence among the repressors and ciary as something that they prefer not to talk in order to avoid belongs to them” — At- being ousted from their circles. Next week, a trial against former torney Alan Lud judges for their role during the dicta- torship will begin in Mendoza. Is rom 1976 to 1983 Argentina’s anti-com- there a need to purify the judiciary? Fmunist military dictatorship engaged in It’s clear that the judiciary was an ac- what is known as the “Dirty War.” Between complice in state terrorism. There are 30,000 and 45,000 men and women who few magistrates these days who were expressed opposition to the dictatorship Grandmothers of Plaza de Mayo protesting in Bue- judges during the military regime but were disappeared -- kidnapped in the middle nos Aires (www.abuelas.org.ar) there are many who began their careers of the night — never to be publicly seen the original identify of the children was wiped then. We cannot expect the judiciary to again. In some cases entire families were purify itself, the boost for reform must kidnapped. The disappeared people were clean in many cases. To overcome that obsta- cle, DNA testing is being used to determine come from outside. Last year, there were brutally tortured, and it is known that some attempts to reform the judiciary but they of them were taken up in airplanes and the true identity of persons who are likely to have been snatched from their parents. were quashed by corporativism and the thrown out alive over the Atlantic Ocean. Supreme Court. During the dictatorship years many hun- Alan Lud is a human rights lawyer in Buenos The Supreme Court created three dreds of infants and very young children Aires and lead counsel for Grandmothers of commissions of criminal judges to were kidnapped by the military and “adopt- Plaza de Mayo. He is also an appointed sub- propose changes. Can that be enough? stitute judge for the Criminal Cassation ed” by high military personal, politicians, No. We cannot expect a beneficial re- Court. He was recently interviewed by the and judges. Women who were pregnant form from the judges. They think of their Buenos Aires Herald. Part of Lud’s inter- when taken into custody had their baby interests. They think of the judiciary as view follows with the questions in Bold: snatched from them after it was born. something that belongs to them, not as a There are some sectors that suggest state branch that has to guarantee the In 1977 grandmothers of kidnapped chil- plea bargains to exchange information citizens’ rights. The best reform propos- dren founded Grandmothers of Plaza de about the disappeared for a lesser sen- als have always been quashed by judges. Mayo (A companion organization founded tence. Would the Grandmothers sup- was Mothers of Plaza de Mayo.) Members port this idea? Click her to read the openly defied retaliation by the dictatorship Historically, they have not. It’s difficult to complete interview of by protesting and trying to locate kidnapped express how this possibility affects them. attorney Alan Lud by children and return them to their families. Some Grandmothers say: “I couldn’t look Luciana Bertoia Thirty-seven years after it was founded, my grandchild in his or her eyes if I had members wearing their trademark white negotiated impunity for his appropriators, Click her to go to the head scarves continue to gather every who might also have known what hap- Grandmothers of Plaza Thursday at 3:30 p.m. and peacefully pro- pened to his parents.” ... I find the propos- de Mayo website. test by marching around the Plaza de Mayo al difficult in this particular context. Sources: that is located directly in front of the Presi- “We cannot expect judges to dent’s residence in Buenos Aires. Why? Alan Lud, human reform the judiciary,” Inter- Those who are taken to court are mem- rights attorney view of Alan Lud by Luciana During the 37 years since its founding the (Buenos Aires Herald) Bertoia, Buenos Aires Herald bers of the military or the security forc- (Buenos Aires, Argentina), Grandmothers of Plaza de Mayo has been es. They are not ordinary people who February 9, 2014 able to locate 87 kidnapped grandchildren. turned up there by chance. ... They have Grandmothers of Plaza de Mayo website, The task has been difficult because not only never acknowledged the systematic plan www.abuelas.org.ar/english/history.htm are all the kidnapped children now adults, but

Stobaugh cont. from p. 8 hearing was held and District Court Judge No. 02-11-00157-CR (2nd Dist. Ct. of Ap- Bruce McFarling — who presided over Sto- peals, 1-23-2014). The appeals court ordered Stobaugh re- baugh’s trial in 2011 — ordered his release leased on $25,000 bond while the State from the Denton County Jail on the condi- Source: Charles Stobaugh v. Texas, No. 02-11-00157-CR (2nd decides if it will appeal their ruling to the tions he wear a GPS tracking device, and that Dist. Ct. of Appeals, 1-23-2014) (Opinion) Texas Court of Criminal Appeals. However he not leave Denton, Tarrant or Cooke coun- Charles Stobaugh v. Texas, No. 02-11-00157-cr (2nd the Court left the conditions of Stobaugh’s ties without permission pending either the dist. ct. of appeals, 1-23-2014) (Judgment) release to be decided by the Denton County State’s appeal or dismissal of his indictment. Stobaugh conviction overturned, Denton Record District Court. If the appeals court’s ruling Stobaugh was accompanied by his son Tom- Chronicle (Denton, TX), January 27, 2014 isn’t appealed then Stobaugh’s indictment my and daughter Charee as he left the jail Walking free: Stobaugh released after three years in prison, Denton Record-Chronicle (Denton, TX), Janu- will be dismissed and his retrial for murder after 2 years and 50 weeks of incarceration. ary 30, 2014 barred by double jeopardy. Denton County jury finds Charles Stobaugh guilty of Click here to read the appeals court’s 176- murdering estranged wife, The Dallas Morning News, Seven days after Stobaugh’s acquittal a bond page ruling in Charles Stobaugh v. Texas, February 17, 2011

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 9 ISSUE 58 - WINTER 2015 evidence of his guilt cases resulted in disclosure that four of the Sture Bergwall Released were his confessions, be- “murders” may not even have been crimes — From 23 Years Imprison- cause no physical, foren- and two of the people may not even be dead. sic, or eyewitness Between September 2010 and July 2013 ment After 8 Murder evidence linked him to Bergwall was acquitted or the charges were Convictions Overturned any of the crimes. dismissed in all eight murder cases. It was official. Scandinavia’s most notorious serial ture Bergwall was described for almost Bergwall’s trials were na- killer was nothing but the figment of “Thom- two decades as Sweden’s ‘Hannibal Sture Bergwall after tional news in Sweden. as Quick’s” drug fueled imagination. S his release. (Facebook) Lecter’ before reinvestigation of his cases The reporter for Swe- discovered he is innocent of the eight mur- den’s largest circulation tabloid, Aftonbla- Swedish legal expert Sven-Erik Alhem ders he was convicted of committing. He det, wrote during his first trial comparing called Bergwall’s case Sweden’s “greatest has been released after all his convictions his appearance as “a pale and unremarkable miscarriage of justice in modern times.” were overturned. man in jeans with a shiny bald head”—with his accused actions: “The man is a serial Bergwall’s first-person account of how he In December 1990 Bergwall held a family killer, pedophile, necrophiliac, cannibal and came to confess to more than two dozen hostage while his accomplice forced the fa- sadist. He is very, very sick.” murders he didn’t commit is in Thomas ther to take out about $37,000 from his Quick is Dead, the book he wrote with his bank.[fn.1] Although Bergwall brandished a None of Bergwall’s convictions were ap- brother Sten-Ove that was published in knife no family member was harmed during pealed, so weaknesses in the prosecution’s 2011 in Sweden. the incident. Bergwall was arrested and pros- case, such as inconsistencies between his ecuted for serious robbery. After his convic- confessions and the crimes, were not re- Because of his tion the judge took into consideration that viewed before his convictions became final. known mental is- Bergwall had been diagnosed with a person- sues he wasn’t im- ality disorder, and in June 1991 he was sen- After his 2001 trial Bergwall refused to talk mediately released tenced to inpatient mental care. Bergwall was with anyone about his self-confessed after his exoneration incarcerated in the secure psychiatric unit of crimes. Bergwall’s silence roughly coincid- pending a review of the Säter mental hospital in Säter, Sweden. ed with him no longer being administered his condition. psychotropic drugs. Immediately upon his incarceration the 41- In November 2013 year-old Bergwall was administered large After seven years of silence, in 2008 Berg- the Swedish govern- quantities of psychotropic drugs, and he wall agreed to a visit from a Swedish film- ment appointed a would remain in a constant drugged state maker called Hannes Råstam. During their special investigator third meeting Råstam pointed out to Berg- to review Berg- Thomas Quick Is Dead for the next ten years — until 2001. (2011) by Sture Bergwall wall that in police videos of Bergwall talk- wall’s case. It was and Sten-Ove Bergwall began using the name Thomas ing about his confessed crimes he seemed announced the “in- Quick at Säter and started confessing to drugged up and he didn’t seem to know any vestigation will not lay blame on individuals heinous crimes that he said he committed important details himself. The next time involved in the case but rather seek to under- between 1976 and 1988. Bergwall chose they met Bergwall told Råstam, “I haven’t stand what went wrong,” and the investiga- Thomas Quick because Quick was his committed any of the murders I’ve been tor is ‘tasked with going over the actions of mother’s maiden name, and he said his first convicted of, and none of the murders I’ve legal and health care officials who convicted victim’s name was Thomas. Bergwall told confessed to, either. That’s the way it is.” and cared for Bergwall during his court-or- hospital and police authorities tales of stab- dered stay at a psychiatric hospital.” The bings, stranglings, rape, incest, and canni- In Råstam’s documentary broadcast on Swed- mother of a man Bergwall confessed to mur- balism involving more than thirty victims in ish television in December 2008 Bergwall dering told Swedish Radio she wanted the Sweden, Norway, Denmark and Finland. recanted his confessions. Bergwall claimed investigation to identify the officials re- they were a combination of being heavily sponsible for the failure of justice in Berg- Bergwall was eventually tried and convict- medicated and his desire for attention. He wall’s case, and “I think it is absolutely ed after six separate trials of murdering explained that he obtained information about horrible that the authorities can do so much eight people in Sweden — five men and the people in his confessions from newspa- wrong and yet not have to answer for it. All three women. His first trial was in 1994, and pers and magazines in the local library. Berg- the time has been devoted to Thomas Quick, his last was in 2001. During all of Berg- wall’s recantation wasn’t surprising to many instead of following the real killers.” wall’s trials the same prosecutor presented people in Sweden who for years had doubted the State’s case, the same police forensic he committed the crimes he confessed to un- On March 19, 2014 the administrative court inspector testified, and the only substantive der his alias of Thomas Quick. Doubters of in Falun issued its ruling that although he his guilt included the parents of some of his continues to suffer from a “personality dis- alleged victims. A book had even been pub- order” it didn’t require his confinement, and lished by one skeptic that was called Thomas that “the forensic psychiatric care of Sture Quick: Mythomaniac. Bergwall shall continue and change from closed to open care.” The 64-year-old Berg- In 2009 Bergwall submitted a petition chal- wall was released later that day after 23 lenging his 1997 conviction. and he eventual- years at the Säter state hospital. ly filed petitions challenging all eight of his murder convictions. Reinvestigation of the Säter mental hospital in Säter, Sweden Bergwall cont. on page 11

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 10 ISSUE 58 - WINTER 2015 ported the incident. Police officers promptly Leila M. Dekker Found went to the intersection and found the vehi- Guilty Of Improper cle had run off the road and rolled over. The driver, Marshall Bobby, wasn’t seriously Medical Conduct After injured, but his passenger Josie Tumbler Her Acquittal In Two was thrown from the Land Rover. She died at the scene from severe internal injuries. Criminal Prosecutions When interviewed Dekker told the police, fter being acquitted in two separate “as a medical doctor I know there would be Acriminal prosecutions, Dr. Leila Maria a bad injury and I know it was a waste of Dekker has been found guilty by the Western time, so I go to police so they can get help.” Australia State Administrative Tribunal of (JD Note: As a non-native English speaker Map of crash location on Cherratta Rd and the loca- improper conduct for failing to stop and ren- Dekker apparently mixed her diction.) She tion of the police station less than a 1/4 mile away der medical assistance to a woman who died later made a statement that immediately in Roebourne, Western Australia. (Google Earth) at the scene of a traffic accident in April 2002. “After the near miss incident on 27 April 2002 in Roebourne, I was in a state of driver’s side, so she pulled out to avoid a Dr. Leila Dekker graduated with a medical shock. I was terrified as I thought I had collision. Dekker’s passenger, a neighbor degree from the Universidade Federal Flu- almost been killed.” who accompanied her to the dump, also minense in Rio de Janeiro, Brazil and be- testified that Dekker was stopped at the came a doctor in 1974. She speaks Dekker was charged in the Karratha District intersection when the oncoming vehicle go- Portuguese, Spanish, French, and English. Court with dangerous driving causing death. ing upwards of 45 m.p.h. was on the wrong She immigrated to Australia and became side of the road and on a collision course registered as specialist in diagnostic radiolo- During her trial in December 2005 the pros- with Dekker’s Toyota. gy in 1996. In the spring of 2002 Dr. Dekker ecution’s opening statement and closing ar- was living in the area of Karratha, a city of gument were based on the testimony of the After Dekker was convicted by a jury she about 16,000 that is 950 miles north of Perth wrecked vehicle’s driver that Dekker pulled was sentenced to pay a fine of AUS$10,000 in Western Australia. She was working for out in front of him and the evasive action he and her driver’s license was suspended for the Kinetic Health Group in Karratha. took resulted in him running off the road and two years. rolling over. Police officers at the scene and Dekker’s life changed forever on April 27, officers who later investigated the incident, Although she immediately instructed her 2002 when she went to the garbage dump testified that tire marks left by the crashed lawyer to file an appeal, it wasn’t done. She outside the nearby town of Roebourne. At vehicle began some distance before where it changed lawyers several times who she also about 6:30 p.m. she was returning from a left the road. There was also police testimo- talked with about filing an appeal. trip to the dump that is on Cherratta Road. ny about the deficient condition of the Dekker was stopped where Cherratta Road crashed vehicle’s tires, steering, and brakes, In the Roebourne Magistrates Court Dekker makes a 90 degree turn at a T-intersection, that it lack of seat belts, and that its front seat was separately charged with dangerous when an oncoming vehicle on the wrong could tip because it wasn’t securely fastened. driving causing bodily harm. side of the road began veering toward her. (Australian’s drive on the left side of the During her trial in February 2008 Dekker road.) To avoid a collision Dekker pulled presented the defense that she pulled into her Toyota pickup forward into the brush the road to avoid a collision with the on- across the road and the oncoming vehicle coming vehicle. However unlike her 2005 passed behind her. Although Dekker heard trial in the District Court, Dekker’s defense what sounded like a crash, she couldn’t see was bolstered by Robert Davey, who is anything because it was dark and there was Cherratta Rd. intersection where Leila Dekker barely considered Western Australia’s foremost missed an out of control vehicle that crashed. no street lighting. (Sunset was an hour earli- (Google Streetview) expert in traffic crash examination and re- er at about 5:30 p.m.) Dekker had no flash- construction. Davey testified that photos light, no cell phone, no medical supplies or Dekker testified in her defense she was taken of tire marks on the road showed that even a first-aid kit with her, so she immedi- stopped at the intersection when the oncom- the oncoming vehicle had reached ‘critical ately drove to the Roebourne police station ing vehicle was on the wrong side of the that was less than a 1/4 mile away and re- road and headed to broadside her car on the Dekker cont. on page 12

Bergwall cont. from page 10 1. The amount was SEK245,000. The value of the March 20, 2014 Swedish Kroner was .15121 to the U.S. Dollar on Nov. Wrongly Convicted Swedish ‘Hannibal Lecter’ To Sue 16, 1995, and .15422 to the U.S. Dollar on April 9, For Damages, BusinessInsider.com, March 21, 2014 Bergwall’s blog translated into English is, 2014. So the Kroner’s longterm value appears to be www.sturebergwallsblogg.wordpress.com . fairly stable related to the U.S. Dollar. Nov. 16, 1995 The Serial Killer Has Second Thoughts: The Confes- is the oldest historical currency date available on the sions of Thomas Quick, GQ magazine, August 2013 Bergwall’s Facebook page is, webpage www.xe.com/currencytables. Swedish ‘Serial killer’ Released After Convictions www.facebook.com/stureragnarbergwall . Sources: Overturned, AFP Story, March 19, 2014, NTD.TV Sture Bergwall, Wikipedia.org (Swedish webpage Special investigator named for ‘Quick’ case, Radio Bergwall’s Twitter page is, translated into English by Google Translate) Sweden, Nov. 26, 2013 www.twitter.com/StureBergwall. Swedish man once considered serial killer is FREED "Thomas Quick is Dead," by Sture Bergwall and Sten- after it’s revealed his eight murder convictions are Ove (2011) Endnote: based on false confessions, Daily Mail (London),

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 11 ISSUE 58 - WINTER 2015 Dekker cont. from page 11 control of his vehicle. But lose control he did, and at a time when (on the pros- speed’ and was ‘out of control’ some dis- ecution case) the appellant’s vehicle tance before the tire marks depicted on a was stationary at the intersection. [¶173] drawing introduced as evidence during The prosecution case proceeded on an Dekker’s District Court trial. Police Officer incorrect thesis. The evidence did not Troy Pillage, a major crash investigator support what the prosecutor said in testified in agreement with Davey’s conclu- opening and closing. [¶174] sion. That testimony of when the oncoming vehicle was out of control corroborated the In the present case, the evidence was insufficient to justify a conviction. [¶179] Prosecution Exhibit 1 (2005 trial) showing the loca- testimony of Dekker and her passenger that tion of where Dekker’s vehicle was at the intersection she pulled into the road at the T-intersection Because there would be a miscarriage of when Marshall Bobby’s vehicle was out of control. to avoid a collision. Dekker was acquitted. justice if an extension of time within which to appeal was not granted, I with the Western Australia State Adminis- Dekker’s lawyer filed a notice of appeal for would extend time for the filing of the trative Tribunal under Section 13(2) of the her 2005 conviction on June 18, 2008 -- 2 notice of appeal. [¶181] Medical Act 1894(WA) (Medical Act) years and 5 months after time expired for based on her being a “Medical practioner I would allow the appeal on ground 2 her to file an appeal. Because her notice of convicted of [a criminal] offence.” and quash the conviction of the appel- appeal was filed late, it was accompanied by lant. [¶182] an application for extension of time within After the Court of Appeals quashed her which she could appeal. Dekker’s appeal conviction the Medical Board amended The Court also ruled the prosecution claimed her conviction was a miscarriage of their complaint with the Tribunal to allege wouldn’t be allowed to retry Dekker, and justice based on new evidence discovered she committed ‘infamous or improper con- ordered remittance of what she had paid on after her trial and favorable evidence that duct in a professional respect’ in violation her $10,000 fine within 28 days. wasn’t disclosed by the prosecution. Her of Medical Act Section 13(1)(a), as a result new evidence consisted of affidavits of by of her failure to stop and render assistance The Court’s ruling makes it clear the jury Robert Davey, her trial counsel, and the trial after the ‘near miss’ incident in Roebourne convicted Dekker of causing the accident prosecutor. The State’s counsel conceded in on April 27, 2002. based on the prosecution’s opening state- its written response Davey’s expert evi- ment and its closing argument, while disre- dence was ‘new evidence.’ Dekker and the Medical Board participated garding the factual evidence of the on August 6, 2009 in a compulsory confer- prosecution’s police witnesses that estab- The Western Australia Court of Appeals ence with a Tribunal administrative mem- lished the oncoming vehicle went out of held a hearing on February 17, 2009 during ber. The conference resulted in an agreed to control while Dekker’s Toyota was station- which Dekker’s lawyer offered a second statement of facts and exhibits. The facts ary at the intersection. ground for her appeal: Her conviction was a detailed that Dekker had no responsibility miscarriage of justice because the prosecu- for the vehicle crash, and that after leaving Since the court found the prosecution intro- tion introduced insufficient evidence at trial the scene she immediately reported the inci- duced insufficient evidence at trial, it didn’t to support her conviction beyond a reason- dent in person to the police. Dekker argued harm Dekker that the court rejected the able doubt. that based on the facts of the incident she exculpatory expert evidence by Davey was had acted responsibly, while the Medical “fresh” evidence, because it “could, with On April 3, 2009 the appeals court issued its Board argued the facts supported she violat- reasonable diligence, have been discov- written ruling in Dekker v The State of West- ed the Medical Act. On August 8, 2009 the ered” at the time of trial by her counsel. ern Australia [2009] WASCA 72. The court Administrative Tribunal member issued granted Dekker leave to file her appeal late, his findings that Dekker should be repri- Thus seven years after the traffic incident and quashed her conviction on the basis the manded and pay the Medical Board $35,000 Dekker had been cleared of both her crimi- prosecution failed to introduce sufficient to cover its costs of pursuing its complaint. nal prosecutions. evidence at trial to justify her conviction. Justice Miller stated in his ruling: Dekker appealed. On November 14, 2013, The irony of Dekker’s multiple prosecutions more than eleven years after the accident, a was the evidence by the police officers and … the prosecution case was predicated four-judge panel of the Administrative Tribu- Davey supported that the driver of the on Mr Bobby having control of his vehi- nal issued its decision in Medical Board of wrecked Land Rover -- Marshall Bobby -- cle at all relevant times and having driv- Australia and Dekker [2013] WASAT 182: en around the back of the appellant’s was the person who actually should have vehicle. This was not what the evidence been tried for the crimes Dekker was The practitioner’s conduct in failing to led by the prosecution established. It charged with committing. The death of Bob- stop and render assistance immediately established that Mr Bobby’s vehicle was by’s passenger Josie Tumbler was apparent- after the ‘near miss’ incident involving out of control from a point near the 60 ly caused by his reckless driving that her vehicle and a second vehicle on 27 km per hour sign, when it was observed included crashing after trying to take a sharp April 2002, but instead leaving the by Mr Abell on the incorrect side of the 90 degree corner at more than 40 m.p.h. scene of the accident and reporting the road. On the prosecution case, the appel- incident and the possibility that the sec- lant’s vehicle was then stationary at the Dekker’s criminal cases were resolved, but ond vehicle had driven off the road to intersection. [¶172] her ordeal wasn’t over. the police, would reasonably be regard- It is unnecessary and inappropriate to ed as improper by professional col- conjecture why Mr Bobby may have lost In July 2006 the Medical Board of Western Australia filed a complaint against Dekker Dekker cont. on page 13

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 12 ISSUE 58 - WINTER 2015 Dekker cont. from page 12 girls had looked at the Utah Supreme Court Ac- two non-pornographic leagues of good repute and competency. quits Barton Bagnes For websites listed on Ba- Although the practitioner’s conduct did gnes’ flyer. No evidence not occur in medical practice, there is a Showing His Sesame was presented the two sufficiently close link or nexus between Street Diaper To Two Girls girls who had approached her conduct and the profession of medi- Bagnes felt afraid or cine for the conduct to be ‘in a profes- arton Jason Bagnes has been acquit- threatened by him. sional respect’. The practitioner is Bted by the Utah Supreme Court of Barton Jason Bagnes therefore guilty of ‘improper conduct in charges related to showing the Sesame Bagnes testified in his a professional respect’ within the mean- Street diaper he was wearing to two girls in defense that he had an incontinence prob- ing of s 13(1)(a) of the Medical Act. White City, Utah. Bagnes had been sen- lem since childhood and he had been ridi- tenced to 15 years in prison. Under the culed because of it. He also testified he The Administrative Tribunal rejected that Court’s ruling Bagnes’ activity was unusual showed children his diaper to let them know Dekker’s conduct was “infamous” because but it wasn’t criminal. adults “do indeed wear diapers,” and to help she immediately reported the incident to the children who might be struggling with in- police. The Tribunal did not consider there White City is about 15 miles south of Salt continence or similar problems to be open was no evidence Dekker could have done Lake City. Bagnes was 31 and living with about it. He acknowledged showing part of anything to have saved the injured woman his parents when in May 2009 he was walk- his diaper to the two girls, but he denied from dying at the crash scene from her ing in a White City neighborhood sucking completely pulling down his shorts. Since extensive internal injuries. A hearing to on a candy binky. Bagnes is a small man, Bagnes testified the prosecution was al- determine Dekker’s penalty and costs was 5'-3" tall and weighing 100 pounds. Two lowed to cross-examine him about his lewd- set for February 2014. nine-year-old girl’s riding their bikes saw ness conviction in 2000 for showing his Bagnes and greeted him. One of the girls diaper to children. There was considerable reaction by medical saw the top of a diaper he was wearing, and practitioner’s in Western Australia criticiz- asked him about it. The jury convicted Bagnes of all charges. ing the ruling in Dekker’s case. It set the precedent that no doctor can leave the scene Bagnes was wearing shorts, which he par- During his sentencing hearing in September of a possible injury accident — even if they tially lowered to show the girls the diaper, 2010 Bagnes told Judge Terry Christiansen have no way to meaningfully assist an in- which had an image of the Sesame Street that kids who have an incontinence problem jured person — without facing the possibil- character Elmo on it. The diaper completely aren’t allowed to be open about it. Bagnes ity of jeopardizing their medical career. One covered Bagnes’ pubic area, and showed acknowledged his approach to public edu- criticism was by Dr Sara Bird who com- less skin than a skimpy swimsuit. The girls cation about diaper wearing “clearly wasn’t mented: “I think this is a very unreasonable had found a paper airplane made from a working,” but “I couldn’t think of any other decision. It is an extraordinary and an unre- piece of paper containing images of children way that would work.” alistic expectation to place on doctors.” and adolescents wearing diapers. Bagnes Bagnes’ lawyer Kimberly Clark argued that Click here to read the appeals courts ruling told the girls he made the airplane he should be sentenced to no more than a in Dekker v The State of Western Australia year in jail and undergo court ordered men- [2009] WASCA 72. and they asked him for another copy of tal health treatment. the flyer. The flyer Click here to read the ruling in Medical Judge Christiansen followed the prosecutor’s Board of Australia and Dekker [2013] included the ad- dress for two web- recommendation and ordered Bagnes to serve WASAT 182. a sentence of up to 15 years in prison on his sites that weren’t Elmo, the Sesame Street Sources: pornographic. character shown on Bar- sexual exploitation of a minor conviction, and Dekker v The State of Western Aust. [2009] WASCA 72 ton Bagnes’ diaper up to five years on his two convictions of Medical Board of Australia and Dekker [2013] lewdness involving a child. He ordered the WASAT 182 (11-14-2013] One of the girls took the flyers home, where her mother found them several days later. sentences to be served concurrently, for a Medical Board Of Western Australia (Applicant), Leila total sentence of up to 15 years in prison. Dekker (Respondent); SAT VR:127/2006 (6-8-2009) The mother called the police to report find- Medical Board Of Western Australia (Applicant), Leila ing the flyer. Dekker (Respondent); SAT VR:127/2006 (7-28-2006) Bagnes appealed. On February 14, 2014 the Utah Supreme Court unanimously over- Dr Leila Maria Dekker (Health Practitioner), Austra- The mother again called the police when lian Health Practitioner Regulation Agency, several days later her daughter told her that turned his convictions on the basis “the www.ahpra.gov.au (last visisted 1-10-2014) she and her friend again saw Bagnes. Ba- evidence was insufficient to sustain convic- Crash doctor decision ‘unreasonable’, By Paul Smith, tions for lewdness or sexual exploitation of Australian Doctor, December 3, 2013 gnes was arrested and charged with two counts of lewdness involving a child for a minor.” In State of Utah v. Barton Jason Leila Maria Dekker (Reg. No. 10635), Western Aus- Bagnes, 2014 UT 4 (UT Sup Ct., 2-14 tralian Government Gazette, List of Medical Practitio- showing his diaper to the girls, and one ners Registered 30 June 2008, State of Western count of sexual exploitation of a minor for 2014) the Court stated: Australia Governent Printer, July 31, 2002 showing the girls the flyer depicting chil- ¶1 Bagnes’s conduct was strange, and Leila Maria Dekker (Reg. No. 10635), Western Aus- tralian Government Gazette, List of Medical Practitio- dren and adolescents wearing diapers. socially inappropriate. But it did not fall ners Registered 30 June 2008, State of Western to the level of criminal lewdness or sex- Australia Governent Printer, August 22, 2008 During Bagnes’ trial in July 2010 the prosecu- ual exploitation under the criminal defi- Western Australia State Administrative Tribunal, Pub- tion didn’t introduce any evidence he exposed lic Register (2005-2014) himself to the two girls, or any evidence the Bagnes cont. on page 14

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 13 ISSUE 58 - WINTER 2015 Bagnes cont. from page 13 make their pubic regions visible in any way. It completely obscured them. nition of those terms as clarified below. ¶45 ... Absent evidence of exhibition, there can be no child pornography and Regarding Bagnes’ lewdness convictions thus no basis for a conviction for sexual the Court stated: exploitation. ¶26 A diaper is one of the most opaque, ¶46 ... the evidence did not sustain the bulky articles of clothing one could imag- charges against him. ine wearing as an undergarment. If virtual exposure is the question, we cannot deem ¶47 Some forms of antisocial behavior the public display of a diaper to qualify are simply beyond the reach of the crimi- unless we are prepared to also criminalize nal law. That appears to be the case here, a range of other clothing that is much less at least insofar as the charges of lewdness opaque and far less obscuring (such as and sexual exploitation are concerned. certain swimwear, or even athletic or workout attire). The difference between The Court’s ruling the prosecution intro- the former and the latter is social accept- duced insufficient evidence bars Bagnes’ ability—not lasciviousness in the form of retrial under double jeopardy. virtual exposure. And the statutory defi- nition of the crime has nothing to do with Click here to read the Court’s ruling in the former and only to do with the latter. State of Utah v. Barton Jason Bagnes, 2014 UT 4 (UT Sup Ct., 2-14-2014). Seann Odoms (middle) wearing his diaper in public, ¶27 ... the flyers are insufficient to trans- with his arms around two girls he met on Kings form a mere oddity (display of an adult Seann Odoms is a diaper wearing advocate Road in London (Seann Odoms Facebook page) diaper) into a criminal act of lewdness from London, England whose Facebook (by virtual exposure). page has many photos of him wearing a in 2 months from a member of the pub- ¶29 Finding no evidence of lascivious, diaper in public. In September 2013, three lic; in fact I get incessant requests for virtual exposure, we reverse Bagnes’s years after The Salt Lake Tribune published photographs from tolerant and creative- convictions for lewdness involving a its article about Bagnes’ sentencing, Odoms minded European citizens. Maybe edu- child. wrote a 900 word comment to the article cation in the Mormon State is more online in which he effectively accused Judge dysfunctional than ours in the UK. Regarding Bagnes’ sexual exploitation of a Terry Christiansen of being diaperphobic ... minor conviction the Court stated: and prejudiced against adult diaper wearers There was no abuse or exposure per se for his harsh uncompassionate treatment of [by Bagnes]. Do you really think the ¶36 Our Victorian past is well behind us. Bagnes. Odoms’ comment states in part: children to whom he revealed his dia- We no longer live in a society where our pers were alarmed? I would bet my an- style conventions and social mores This is terrorism! nual cache of Tenaslips that they all clamor for head-to-toe cover-up. The Let us look at the brass tacks here. actually laughed themselves sick. What, opposite is closer to the truth. Right or may I ask, is criminal about making a wrong, our society roundly tolerates— [Judge] Christiansen knows for a fact laughing-stock out of yourself? and often encourages—ever-less sartori- that 1 in 8 people in the USA suffer with al coverage of the human body. Whether chronic bedwetting sometime in their Flashing? Are you serious? If all the at the gym, the pool, the beach, or even school years, because he will have read tarts & bimbos spawned by the USA’s the public square, we routinely encoun- the OFFICIAL statistics whilst sitting depraved culture, habitually exposing ter those who would flaunt or manifest this case...... that is; if he is literate! themselves from under pathetic short their (heretofore) private parts, including ... skirts and cut-off pants, were similarly their pubic regions. And depictions of It wasn’t the Law that saved gays from charged and imprisoned, the tax bill these sorts of “exhibitions” are peppered persecution, because, if Christiansen is would send most of you 320 million across the pages of our mainstream mag- an example, the Law is administered by Americans into starvation. azines, catalogs, newspapers, etc. (in politically-retarded bigots. Gays became Forget the diaper for a minute! It is an print and online). accepted because, against their conser- undeniable fact that ...... if Bagnes had ¶37 Purveyors of this material would vative nature, they started dressing in persistently dropped his pants in front of hardly expect to face criminal charges tight pink shorts and similar in public. It children to reveal BOXERS or BRIEFS, for child pornography or sexual exploi- was only then that the moron majority he would not have faced trial and sentence tation. And if they were so charged, they realised that gay people are common- at all. Therefore there is no legal “expo- could undoubtedly maintain strong con- place and consequently must be ok. sure” or “abuse” per se..... legal fact! stitutional defenses under the Free I am doing the same in the UK, walking So, the only difference, the only pertinent Speech and Due Process Clauses. about in public in diapers and explain- factor in the warped, perverted mind of ¶44 We reverse Bagnes’s sexual exploi- ing my incontinence awareness cam- this Judge is ... THE DIAPER ITSELF. paign, NappyzRNormL, to anyone tation conviction ... Bagnes’s flyers in Therefore this is clear proof that [Judge] no way depicted any exhibition of the honest enough to ask or challenge me. It seems fine in the eyes of authority, in Christiansen has sentenced Bagnes to 15 pubic region. The children and adoles- years imprisonment solely for wearing a cents depicted in the flyers were wear- the form of our ever-present Police, and ing diapers, and the diapers did not I have only had one aggressive approach Bagnes cont. on page 15

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 14 ISSUE 58 - WINTER 2015 The State Police investi- Delaware P.D.’s Office gation was triggered Trial By Perjury: Files Motions To Over- when during a trial in Millionaire, Mania & early February 2014 a turn Hundreds Of Taint- prosecutor recognized Misinformation ed Drug Convictions the pills in evidence that were supposed to be rial By Perjury by Nancy Hall is about Delaware Chief how Celeste Beard Johnson was con- n February 20, 2014 the Delaware State Medical Examiner Oxycontin were in fact T Richard T. Callery blood pressure medica- victed in 2003 of capital murder in the death OPolice shut down the Controlled Sub- of her then husband Steven F. Beard, who stances Lab inside the Delaware Medical Ex- tion. The investigation discovered that lab surveillance cameras died of natural causes in 2000. She was aminer’s Office after it was discovered the lab sentenced to life in prison. had lax security, and drug evidence for crimi- were disabled, drug evidence was missing, and there were numerous discrepancies be- nal cases was missing and in some cases While in bed at home in Oct. 1999, Steven replaced with fake evidence. Within days the tween when police log notes showed drug evidence was submitted to the crime lab and was shot in his stomach with a shotgun. Delaware’s Attorney General requested that Tracey Tarlton, a woman who became infat- all drug related criminal cases in the state be when the lab recorded it as having been received — which allowed time for fake uated with Celeste after they met in Febru- delayed, and Delaware Chief Medical Exam- ary 1999, admitted the shooting and she was iner Richard T. Callery was suspended pend- evidence to be substituted for drugs and logged in. charged with Injury to an Elderly Person. ing an investigation of the lab’s operation. Steven recovered and was discharged from the hospital on January 18, 2000. The next In early March 2014 the State Police began a When the scandal was first reported Dela- ware Public Defender Brendan O’Neill told day he was readmitted with a yeast infection separate criminal investigation into whether and he complained of chest pains. Exams Callery misused state resources to run his reporters, “I don’t think this is going to end soon. This is the tip of the iceberg.” showed he had severe heart disease and private consulting business. Callery’s state other medical problems. He died four days salary was $198,500 a year, and he charged at In the first wave of an expected 9,500 mo- later. Tarlton and Celeste were charged with least $200 an hour as an expert witness — murdering Steven. Tarlton agreed to plead primarily for out-of-state defendants. tions to vacate tainted drug related felony and misdemeanor convictions between guilty and testify against Celeste in ex- 2010 and February 2014, the Public De- change for a reduced charge and a 10-20 Bagnes cont. from page 14 fender’s Office filed motions on April 30, year prison sentence. Celeste was convicted 2014 to overturn 112 cases. The motions even though medical evidence showed Ste- diaper. That is abuse of the U.S. Consti- described the state’s crime lab was “an ven died of natural causes – not murder. tution and is straight out of the Al Qaeda investigative arm” of the prosecutor’s of- handbook! fice. As of mid-May 420 motions to vacate In Trial By Jury author Nancy Hall cites No doubt, if this amoral dysfunctional drug convictions have been filed by the extensively from the case record to explain found his next-door neighbour was in- Delaware Public Defender’s Office. how the the prosecution was able to convince continent, he would use his deviously the jury that Steven Beard's death was murder attained license to bully minorities from Sources: and that Celeste was involved in his shooting. public office to pressure the neighbour- Drug scandal hits Medical Examiner’s Office, The hood into persecuting the sufferer. Well, News Journal (Wilmington, Del.), February 22, 2014 Trial By Perjury is only available as an Delaware medical examiner suspended in drug probe, Amazon Kindle e-book for $3.99. Trial By it is his only chance to justify his posi- The News Journal (Wilmington, Del.), Feb. 28, 2014 tion as judge and chief witchfinder-gen- Perjury is 252 pgs. Click here to order ME’s side work under criminal investigation, The Trial By Perjury from Amazon.com. eral, because he is precluded by Law News Journal (Wilmington, Del.), March 12, 2014 from targeting “niggers, Yids and AG disputes ties to Medical Examiner’s Office, The queers”; ...... is that right, Christiansen? News Journal (Wilmington, Del.), May 2, 2014 ... Attorney seeks to toss 420 drug convictions, The News Judge Christiansen appears to me to be Journal (Wilmington, Del.), May 13, 2014 a lot more latter-day Klansman than latter-day Saint! Visit Justice Denied’s Click here to read Seann Odoms’ com- Website plete comment to The Salt Lake Tribune’s article that is towards the bottom of the page. www.justicedenied.org

Seann Odoms Facebook page with photos Back issues of Justice: Denied can of him wearing a diaper all over London is, be read, there are links to wrongful www.facebook.com/seann.odoms. conviction websites, and other in- formation related to wrongful con- Sources: victions is available. JD’s online State of Utah v. Barton Jason Bagnes, 2014 UT 4 (UT Sup Ct., 2-14-2014) Bookshop includes more than 70 Utah court wipes ‘Diaper Man’s’ record clean, The wrongful conviction books, and Salt Lake Tribune, February 14, 2014 JD’s Videoshop includes many Judge sends “Diaper Boy” to prison, The Salt Lake dozens of wrongful conviction mov- Tribune, September 20, 2010 ies and documentaries.

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 15 ISSUE 58 - WINTER 2015 2001. Furthermore, Ms. Lobato’s habeas knocked out by a baseball bat, he was not The State Of Nevada’s petition details her conviction was due to standing when attacked, and his knife Lawyer Lied And Lied Metro Det. Thomas Thowsen’s extensive wounds were not inflicted by her double- false testimony regarding her Statement and edged pocket knife but by a single- edged During Kirstin Lobato’s comments, and his alleged investigations (6 kitchen, butcher, or hunting knife – fatally Nevada Supreme Court AA 1266-75); and more than 275 unrebut- undermining the State’s trial theory Ms. ted instances of prejudicial prosecutor mis- Lobato could be his assailant; and, 4) Bailey Arguments conduct during her trial that include was alive when his rectum injury occurred fabricating non-existent evidence, factual – proving she was convicted of a non-exis- By Hans Sherrer1 misstatements, and false assertions about tent violation of NRS 201.450. (6 AA 1202- the State’s evidence — none of which were 1205, 1210, 1218-26, 1253, 1284-88) minimum wage convenience store clerk objected to by her lawyer. (7 AA 1393, Awho lies under oath in court can be 1402, 1448, 1452, 1455, 1458) 7) Owens lied, “the jury listened to this stuff. convicted of perjury and sentenced to prison. This new evidence they want to put on is not In contrast, a highly paid lawyer can fearless- 3) Owens blatantly lied “Shortly thereafter new. ... It’s cumulative to what the jury ly lie his or her head off when publicly ap- [Bailey’s homicide], Kirstin Lobato in Pana- rejected at trial.” (OA at 15) The truth is Ms. pearing before the Nevada Supreme Court. ca, Nevada, started talking about a severed Lobato’s petition details her unrebutted new penis.” (OA at 7) The truth is Ms. Lobato forensic, alibi, and fact evidence by more than We know that because of what occurred dur- mentioned in her Statement that prior to two dozen witnesses that was not presented to ing oral arguments before the full Nevada June 20, 2001 she had a conversation with a her jury, and the District Court did not make a Supreme Court on September 9, 2014 con- woman about the Budget Suites Hotel rape finding that any of her new evidence is “cu- cerning Kirstin Blaise Lobato’s habeas cor- attempt she fended off with her pocket knife. mulative’ to trial evidence. (6 AA 1173-1295; pus appeal (Lobato v. State, No. 58913). The Also, her habeas petition includes unrebut- 11 AA 2265-69) Furthermore, two jurors de- attorney representing the State of Nevada — ted new evidence by nine alibi witnesses termined after reviewing Ms. Lobato’s new Clark County Assistant District Attorney Ste- who were informed by her beginning in late evidence that “it could have possibly resulted ven S. Owens — repeatedly lied2 about is- May 2001 — and all prior to July 8 — that in either a hung jury or Ms. Lobato’s acquit- sues related to Ms. Lobato’s case.3 Lying to she used her pocket knife to fend off a would tal.” (State v. Lobato, Case no. C177394 (Dis- a court to achieve a desired result has been be rapist in Las Vegas. (6 AA 1190-1195) trict Court, Clark County, Nev.), described by the Nevada Supreme Court as That new alibi evidence’s veracity is corrob- “Supplemental Exhibits To Petitioner’s An- “fraud on the court.”4 The Supreme Court’s orated by unrebutted new expert psychology swer In Support Of Petition For Writ Of Habe- response to Mr. Owens’ conduct has thus far evidence, and polygraph expert Ron Slay’s as Corpus,” 2-24-2011, Exhibits 6 and 7.) been deafening silence. Owens’ dishonest new evidence that “I am certain Ms. Lobato assertions to the Nevada Supreme Court in- is innocent of Mr. Bailey’s murder.” (6 AA 8) Owens lied Bailey’s time of death isn’t clude, but aren’t limited to the following: 1185, quote at 1188) “critical.” (OA at 10) The truth is the State’s theory of Ms. Lobato’s guilt depend- 1) Owens lied twice that Ms. Lobato made 4) Owens lied that Ms. Lobato’s comment to ed on convincing the jury Bailey died be- a “confession” related to Duran Bailey’s her father during a conversation “I did some- fore 7 a.m. and the she was convicted based homicide in Las Vegas on July 8, 2001. thing bad” is evidence of a guilty mind to on the State’s argument to the jury he died (Oral Arguments (OA) at 9, 13. Oral Argu- Bailey’s homicide. (OA at 8 (Owens misquot- “sometime before sunup.” (5 AA 1005) ment transcript is online at ed the testimony at 3 AA 654, so the testimo- http://justicedenied.org/kl/lobatoargume ny is quoted.)) The truth is the comment was 9) Owens lied the jury “rejected” Ms. Loba- nt992014.pdf .) The truth is that during Ms. made during a conversation with her father in to’s alibi evidence she was in Panaca the eve- Lobato’s trial the State didn’t assert during June 2001 — weeks prior to Bailey’s homi- ning of July 8 (OA at 10) The truth is the State its opening statement, closing argument, or cide. (Reply Exhibit 2 at 1; 4 AA 912) conceded during its closing argument it is present trial testimony she made a “confes- factually true she was in Panaca from at least sion” to Bailey’s homicide. It exists only in 5) Owens lied, “She says today that she is “11:30 a.m. through the night.” (5 AA 1008) Owens’ imagination. Furthermore, it is an actually innocent.” (OA at 7) The truth is unrebutted fact there are 40 material differ- Ms. Lobato has unwaveringly asserted her 10) Owens lied about the foundation of the ences between the attempted rape of her in innocence for more than 13 years since she State’s case in stating, “The jury did not east Las Vegas before mid-June 2001 de- was charged in 2001. believe Lobato’s alibi witnesses … The jury tailed in her Statement, and Bailey’s homi- could not have convicted her if they cide weeks later in July 2001 on the other 6) Owens lied, “But nothing at the crime believed those alibi witnesses.” (OA at 9) side of town. (6 Appellant’s Appendix5 scene is going to help them because the jury The truthfulness of the 13 witnesses whose (AA) 1276; 9 AA 1875-1879) already knew that evidence there pointed testimony places Ms. Lobato in Panaca on away from Kirstin.” (OA at 13) The truth is July 8, 2001 from at least “11:30 a.m. 2) Owens lied, “She was convicted by her Ms. Lobato’s unrebutted new exculpatory through the night” was conceded by the own words at the trial, and her own words expert forensic crime scene evidence not State whose theory the jury relied on by the belie the argument that she is actually presented at trial establishes among other jury to convict was Bailey died “sometime innocent.” (OA at 7-8.) The truth is there is things: 1) Bailey’s killer made all the shoe- before sunup.” (5 AA 1005, 1008) nothing incriminating regarding Bailey’s prints imprinted in blood and they don’t homicide in her police Statement or com- match Ms. Lobato; 2) Bailey’s killer could 11) Owens lied in his assertions Ms. Loba- ments attributed to her — none of which not have worn the high-heeled open-toed to’s unrebutted new expert forensic evi- even include the date, location, or manner platform shoes the State doesn’t deny she dence Bailey died after 8 p.m. isn’t of Bailey’s death from a head injury, or that wore during the attempted rape described in she was even in Clark County on July 8, her Statement; 3) Bailey’s teeth were not Lobato cont. on page 17

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 16 ISSUE 58 - WINTER 2015 Lobato cont. from page 16 committing the federal crime of using the rehearing, or decide the case on the briefs Social Security number of a man who died in submitted by Ms. Lobato and the State. important. (OA at 10) The truth is the State Michigan in 1987. (6 AA 1309-1311) conceded at trial she was in Panaca 165 Steven S. Owens has a history of lying miles from Las Vegas at that time so it is Nevada Supreme Court has the inherent about Ms. Lobato’s case physically impossible she committed Bai- power to enforce the administration of justice ley’s homicide. (5 AA 1008) Owens lengthy history of dishonesty in Ms. As described above Steven S. Owens fabri- Lobato’s case includes his false public state- 12) Owens lied the three internationally cated material assertions deceived the Ne- ments to KLAS-TV (Las Vegas), the Associ- known forensic entomologist’s unrebutted vada Supreme Court by misrepresenting the ated Press, and the Las Vegas new expert evidence Bailey died after sunset habeas record, and he grossly misrepresented Review-Journal, and in documents filed in is a “tenuous estimation” (OA at 10) The relevant case law and statutes. Owens is an the Nevada Supreme Court. Those false truth is entomology is a science more than officer of the court so under the following statements are documented in a letter sent to 1,000 years old and Bailey’s time of death rules the Supreme Court has the authority to Clark County District Attorney Steven Wolf- to a “reasonable scientific certainty” after hold him in contempt of court for his dishon- son dated July 3, 2012, which states: “Mr. sunset at 8:01 p.m. is the highest expert est and deceptive conduct, impose sanctions, Owens’ pervasive dishonesty is a gravely evidence standard. (6 AA 1175, 10 AA 2167) and refer him to the State Bar of Nevada for serious matter.” (p. 11) The letter is online at, investigation and possible disciplinary action. http://justicedenied.org/kl/wolfsonletter.pdf. 13) Owens blatantly deceived the Supreme Court about two key cases: People v NSCR 39 sets forth the Supreme Court’s Conclusion Hamilton, 115 A.D.3d 12, 979 N.Y.S.2d 97, inherent power to govern attorneys because 101 (2014); and, State ex rel. Orsborn v. they are “court officers and essential aids in The foregoing is only a partial litany of Ow- Fogliani, 82 Nev. 300, 417 P.2d 148 the administration of justice...” ens’ gross dishonesty throughout his argu- (1966). (OA at 11-12) The truth is in Ham- ment. However, it is a representative ilton the New York Court of Appeals ruled NSCR 99(2) sets forth “Nothing contained sampling of the extreme lengths he went to in that new factual evidence of actual inno- in these rules denies any court the power to his well-planned and concerted effort to tilt cence can be presented in a habeas petition, maintain control over proceedings conduct- the scale of justice by misleading the Nevada and in Orsborn the Nevada Supreme Court ed before it, such as the power of contempt Supreme Court and prejudice the administra- granted a habeas petition that was based on ...” tion of justice in Ms. Lobato’s case. If the new factual evidence the defendant was State had credible evidence Ms. Lobato com- convicted of a crime he didn’t commit. NSCR 101 sets forth “... acts or omissions mitted Bailey’s homicide Owens wouldn’t by an attorney, including contempt of a have had to lie throughout his argument, and 14) Owens lied, “We have here a couple hearing panel... which violate the rules of in fact, some of Owens’ arguments repeated statutory remedies that Ms. Lobato could the supreme court or the Nevada Rules of false assertions he made in the State’s Reply avail herself of. One is the motion for new Professional Conduct are misconduct and Brief filed on July 6, 2012, pgs. 3-8. trial based on newly discovered evidence constitute grounds for discipline.” …” (OA at 12) The truth is that based on Steven S. Owens’ blatant lying to the Ne- Nevada Supreme Court precedents Ms. Lo- NRPC 3.3(a) sets forth “A lawyer shall not vada Supreme Court strikes at the very heart bato’s only statutory remedy is to present knowingly: (1) Make a false statement of of its legitimacy as a deliberative body. her new evidence in her habeas corpus peti- fact or law to a tribunal ...” Owens may think he got away scot-free with tion. (OA at 2-3) thumbing his nose at the Supreme Court. He NRPC 8.4 sets forth in pertinent part: “It is will unless the Court exercises the full ex- 15) Owens lied, “We have here a couple professional misconduct for a lawyer to: (c) tent of its authority in holding Owens ac- statutory remedies that Ms. Lobato could Engage in conduct involving dishonesty, countable for his contemptible conduct and avail herself of. ... and the other is a motion fraud, deceit or misrepresentation; (d) En- take the most extreme actions possible to for DNA testing...” (OA at 12) The truth is gage in conduct that is prejudicial to the protect Ms. Lobato’s rights, and the integri- Ms. Lobato’s petition for post-conviction administration of justice;” ty of the Court and its deliberation process. DNA testing of crime scene evidence — in- cluding semen recovered from Bailey’s rec- In addition, Owens unconscionable decep- Endnotes: tum — was vigorously opposed by the Clark tions, misrepresentations, and dishonesty Note 1. Hans Sherrer is President of the Justice Insti- tute that promotes awareness of wrongful conviction County D.A. and denied by Judge Valorie intended to influence the Supreme Court’s and conducted a post-conviction investigation of Ms. Vega. The Nevada Supreme Court dismissed decision in Lobato v. State violated Ms. Lobato’s case. Its website is www.justicedenied.org. her appeal, “Because the order is not appeal- Lobato’s state and federal constitutional He can be emailed at [email protected]. Note 2. The Oxford English Dictionary defines a “lie able.” (Lobato v. Nevada, NSC No. 59147 rights to due process of law. (and lied), v.2,: as: “To tell a lie or lies; to utter false- (“Order Dismissing Appeal,” 1/12/2012), 4.) hood; to speak falsely.” (http://www.oed.com) This NRAP 2 provides that for “good cause” the article details Steven S. Owens uttered numerous false- 16) Owens lied seven times that Ms. Lobato’s Supreme Court can “suspend any provision hoods and spoke falsely to the Nevada Supreme Court on September 9, 2014. Brady grounds are “bare” or “bald” claims of these Rules in a particular case and order Note 3. This article is based on public documents filed unsupported by specific factual allegations. proceedings as it directs.” NRAP 34 sets in the Clark County, Nevada District Court and the (OA at 14) The truth is those grounds specif- forth the procedure for oral argument. Ow- Nevada Supreme Court, and news articles. Note 4. Material dishonesty to achieve a desired judicial ically detail the State failed to disclose favor- ens’ unrestrained dishonesty that denied result was described as “fraud on the court” in Mosley v. able evidence concerning a police officer Ms. Lobato her right to a fair hearing is Figliuzzi, 113 Nev. 51, 930 P. 2d 1110, 1112 n.2 (1997). who may have evidence regarding Bailey’s “good cause” for the Court to exercise its Note 5. The Appellant's Appendix was filed by Ms. homicide, and that a suspect in Bailey’s ho- authority to sua sponte strike his arguments Lobato in the Nevada Supreme Court and includes her trial transcripts, her habeas corpus petition, and micide described at trial as law abiding was from consideration of her appeal. order a other documents relevant to her appeal.

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 17 ISSUE 58 - WINTER 2015 subconscious fear Germans imprisoned while awaiting Every Man Dies Alone lived in of saying or doing execution of their sentences. something that could be con- Up to the end they didn’t by Hans Fallada sidered unpatriotic, and waiver in their loyalty to each (Melville House, 2009) which could be reported to other or doubt that writing and the Gestapo by a neighbor, distributing the postcards was Review by Hans Sherrer co-worker, or stranger they the right thing to do. passed on the street. Inform- very Man Dies Alone by Hans Fallada ers were everywhere. Although Every Man Dies Eis a semi-historical novel based on the Alone can be read on a num- real-life event of a husband and wife distrib- It is driven home in Every ber of levels: as a love story uting several hundred handwritten post- Man Dies Alone that under between Otto and Anna; as a cards throughout Berlin from 1940 to 1942. Nazi rule all of Germany was story of the extremes a couple Those postcards encouraged people to pas- a prison and no one — not will go to in the memory of sively resist the German government by even police officers — were their son; it drives home with engaging in work slowdowns and to not safe from instantly being a sledge hammer that a totali- contribute to the “winter relief fund” that treated as an inmate on the slightest suspi- tarian regime such as the Nazis depends on was used to support the war. cion of disloyalty. Being picked-up by the the good in people being co-opted by their Gestapo for questioning was a traumatic willingness to at least acquiesce to that re- Fallada (the pen name of Rudolf Ditzen) re- experience, and a person held in Berlin’s gime’s evil actions and do nothing to under- lied on his personal experience of living in Gestapo headquarters could turn to jelly mine it. That is why the resources of the Germany during the entirety of the Nazi era when threatened with being sent to the Reich were quietly directed towards crush- (1933-45) to create a portrait of wartime Ger- “basement” where there were no rules lim- ing the Quangels so their efforts towards a many that is so realistically grim that you can iting an interrogation. peaceful Germany wouldn’t inspire others. not just understand, but almost feel the emo- tional turmoil that caused two middle-aged However, the German government under the Otto had the clarity after his arrest to ob- working class Germans who had been loyal to Nazis followed the general form of estab- serve the absurdity that the gang of crimi- the government and tried to mind their own lished protocols in criminal prosecutions: nals ruling Germany branded everyone who business, to embark on their own non-violent when arrested the Quangels were charged didn’t support them as a criminal. campaign opposing Hitler and the Nazis. Fal- with the capital crime of treason. Although lada makes painfully clear it was a campaign the outcome of their trial was a foregone Stylistically Every Man Dies Alone is some- that was nothing less than a suicide mission. conclusion because it was presided over by what unusual, at least in its English transla- Roland Freisler, the most fanatical pro-Nazi tion. Fallada doesn’t try to seduce the reader Otto and Anna Quangel were jolted out of judge in Germany, it was surreal with mo- with flowery words and catchy phrases, or their lethargy of simply accepting the Nazi ments of levity and high drama. plot contrivances. The Quangels were un- regime as a given by the death of their son complicated people with limited educations during the 1940 invasion of France. Anna’s lawyer valiantly tried to introduce and Fallada doesn’t try to imbue them with evidence to mitigate qualities they didn’t have. The Wanting to do something to un- her sentence since she postcards Otto wrote had short dermine the Nazis hold on pow- and her husband had and direct messages because he er and hasten the day when pled guilty to treason wasn’t used to expressing his parents wouldn’t have to endure for writing and distrib- thoughts in writing. Neither their anguish, Otto came up uting the postcards. were the stool pigeons Otto and with the idea of writing anti- Freisler would have Anna had to constantly keep an Nazi messages on postcards nothing to do with eye out for complex people: that they would distribute by considering the miti- they primarily wanted to be placing in public places around gating evidence, and paid a reward or garner the good Berlin. The postcards would let for trying her lawyer will of a policeman to overlook people know they weren’t alone Otto Hermann Hampel felt the icy wind of some illegality of their own. (June 21, 1897 - April 08, Elise Hampel (October in opposing the government’s 1943). Gestapo photo Freisler’s wrath. An- 27, 1903 - April 08, policies. Otto and Anna em- taken after Otto’s arrest. na’s lawyer is the only 1943). Gestapo photo The Quangels in real life they barked on their postcard cam- person in Every Man taken after Elise’s arrest. were Otto and Elise Hampel, paign by setting aside Sunday to work on Dies Alone involved in the machinery of the and it was her younger brother who was them after which Otto would distribute them. German government who acts in a way that killed in 1940 during Germany’s invasion can be described as heroic. Even though his of France. Fallada was a prominent writer in One can imagine the reaction of the Berlin efforts were futile to reduce her sentence Germany, and after WWII a friend provided police and the Gestapo when they learned from death, he took risks in trying to inject him with the Hampel’s Gestapo file, sug- postcards critical of the Nazi regime were reason and sanity into the proceedings. Ot- gesting he consider writing a book based on being found all over Berlin: top priority was to’s lawyer on the other hand didn’t pretend their case. given to finding the traitors. to have anything but disgust for Otto or make any effort to represent him. Every Man Dies Alone was published in The magnitude of what the Quangels em- Germany just weeks after Fallada’s death at barked upon is put in perspective by Falla- A significant portion of the book is com- 53 in February 1947. However, the Ham- da’s evocative description of the prised of how Otto and Anna dealt with being Fallada cont. on page 19

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 18 ISSUE 58 - WINTER 2015 Fallada cont. from page 18 inflection, and emotion described by Falla- da. However, Every Man Dies Alone is far pel’s story was not generally known outside more than just a compelling work of fiction; of Germany until the book was translated it is a homage to the courage of the Hampels and published in English in 2009, because and others who acted to undermine support all but a few of their postcards were turned for the Nazis, however feeble those actions over to the police by the people who found might have seemed at the time, or even from them. In contrast, the leaflet campaign by the perspective of 70 years later. It also the White Rose — a loosely knit group of exposes the hypocrisy of the tens of mil- mostly young people — became known lions of Germans who after the war tried to during World War II when one of their absolve themselves of guilt by claiming leaflets critical of the Nazi regime and that they didn’t know how bad the Nazi regime encouraged passive resistance was smug- An actual Hampel postcard that reads: was — when the Hampels knew and they gled to England. “Free press! Away with the Hitler dying-a- were at the bottom rung of German society. wretched-death system! The low-ranking sol- Endnote: The Hampels were convicted of treason in dier Hitler and his gang are plunging us into 1 Aleksandr Solzhenitsyn, “From Under The Ruble,” Judge Freisler’s court on January 22, 1943 the abyss! This Hitler Göring Himmler Goeb- ed. Aleksandr Solzhenitsyn, Little Brown, Boston, and sentenced to death by beheading. One bels gang should only be granted space to die 1975, p. 249 (emphasis in original) month later, on February 22, the first three in our Germany!” of the White Rose members who were cap- Scrawled across the stamp are written the tured — Sophie Scholl, her brother Hans words, “Arbeiter Mörder”: Worker murderer. Scholl, and Christoph Probst — were con- victed of treason in Judge Freisler’s court Improper Submissions: Records and sentenced to death. Others involved in Yet in spite of knowing their likely fate if of a Wrongful Conviction the White Rose were later captured, and arrested, the Hampels (and the White Rose sentenced to death or prison after their con- participants) chose to speak out about Ger- By Erma Armstrong viction in Judge Freisler’s courtroom. many’s path of destruction under Hitler and This is the story of his Nazi cohorts rather than play it safe and Karlyn Eklof, a The Hampels were not naive about the con- try and survive the war by silently going young woman deliv- sequences if their identity was discovered. along to get along. ered into the hands Otto’s Gestapo file records that after his of a psychotic killer. arrest he told his interrogators he was “hap- The obedience of all but a small fraction of She witnessed him py with the idea” of protesting against Hit- people to the directives of an authority fig- commit a murder and she is currently serv- ler and the Nazi regime. ure has been well documented in a number ing two life sentenc- of controlled experiments beginning with es in Oregon for that those of Stanley Milgram at Yale University crime. Improper Submissions documents: in the early 1960s. Psychologist Philip Zim- · The way the killer’s psychotic bragging bardo observed in The Lucifer Effect: Un- was used by the prosecution against Karlyn. derstanding How Good People Turn Evil · The way exculpatory and witness im- (Random House, 2007), that what needs to peachment evidence was hidden from be understood is why such a tiny percentage the defense. of people are able to muster the intestinal · The way erroneous assertions by the fortitude to not acquiesce by participating in prosecution were used by the media, something they think is wrong, or stand by judges reviewing the case, and even by without protest while others do so. The her own lawyers to avoid looking at the small number of Germans willing to do record that reveals her innocence. more than just privately criticize Hitler and Paperback, 370 pages, $10 Plaque in Berlin where the house was that Otto the Nazis were no match for the overwhelm- Order with a credit card from Justice De- and Elsi Hampel lived in. The plaque reads: ing numbers of those who wouldn’t do so. nied’s Bookshop, www.justicedenied.org Berlin Memorial Plaque Aleksandr Solzhenitsyn knew first-hand Here was the house in which about persecution by a despotic govern- Visit the Innocents Database OTTO HAMPEL ment. Solzhenitsyn wrote in his essay The 21.6.1897—8.4.1943 Smatterers that “the vertical seems a ridicu- Includes details about more than and lous posture” to people “standing 5,100 wrongly convicted people from ELSIE HAMPEL crookedly.”1 The Hampels paid with their the U.S. and other countries. 27.10.1903—8.4.1943 heads for standing straight when “standing http://forejustice.org/search_idb.htm Lived from 1934 until their arrest. crookedly” was the norm for people in Ger- Visit the Wrongly Convicted The working class couple was executed on 8 many. Bibliography April 1943 in Berlin. Their rebellion against the misanthropy of Every Man Dies Alone is an extraordinary Database of hundreds of books, law the Nazi regime novel. It is like a time portal to Berlin in the review articles, movies and documen- was the model for Hans Fallada’s novel early 1940s and the reader is a silent observ- taries related to wrongful convictions. Everyone dies for himself alone. er to every event, facial expression, voice http://forejustice.org/biblio/bibliography.htm (Translated from German with Google & Bing Translate.)

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