The Magazine for the Wrongly Convicted

World champion boxer posthumously pardoned 105 years after his Mann Act conviction for taking his white girl- U.S. agrees to review consti- friend across state lines. Convicted of filing See page 3 false rape report in tutionality of prosecution in Michigan and sen- federal and state courts of tenced to 45 days charges based on the same in jail. conduct. Meow Ludo Meow-Meow See page 14 Conviction over- turned for paying for public transporta- tion in Australia with smart card chip im- See page 15 planted in hand. See page 5

Queensland, Australia Men Can Apply To Have Historic Homosexual Conviction Expunged!

New Evidence Trial Expert Evidence Was Unreliable Not Enough To Grant Coram Nobis! m Federal Court Acquittal Not Sufficient For Reimbursement Under Hyde Amendment!

Robert Murat-Hinton’s Findings Of Guilty In Jail Hearings Annulled On Appeal!

PACER Fees Can Be Used For Programs Unrelated To Federal Court Information!

Habeas Corpus Denied Because Lawyer’s Racial Insensitivity Not IAC! Issue 75 JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 1 ISSUE 75Spring - SPRING 2019 Justice:Denied - Issue 75, Spring 2019 ISSN: 1937-2388 Table of Contents Boxer Jack Johnson Posthumously Pardoned 105 Years After Conviction For Crossing State Line With White Woman...... 3 Bio-Hacker Meow--Meow’s Convictions Set-Aside And Charges Dismissed...... 5 Robert du Purton’s Evidence That Expert’s Trial Testimony Was Unreliable, Not Enough To Grant Coram Nobis Petition....7 Gerald Bove’s Acquittal Not Enough For Attorney’s Fees Reimbursement Under Federal Hyde Amendment...... 8 Men In Queensland, AUS Can Apply For Expungement Of Historic Conviction For Consensual Homosexual Activity...... 10 Ezzard Ellis’ Habeas Corpus Denied Because Lawyer’s Unknown Racial Insensitivity Doesn’t Constitute IAC...... 11 Simone Swenson’s Indictment Reinstated By Appeals Court...... 12 Mary Zolkowski Convicted of Filing False Rape Report And Sentenced To 45 Days In Jail...... 14 Robert Murat-Hinton’s Findings Of Guilty In Two Jail Disciplinary Hearings Annulled By Court On Appeal...... 15 U.S. Supreme Court Accepts Constitutional Challenge To Dual Prosecutions By State And Federal Governments...... 15 Judge Rules PACER Fees Can Be Used For Programs Unrelated To Providing Federal Court Information...... 18 Menace To The Innocent: Insubstantial Expert Evidence Endangers Innocent People Accused Of A Crime...... 20 Phantom Spies, Phantom Justice...... 21 High Fence Foodie Cookbook...... 21 From The Big House To Your House Cooking in prison...... 22 Edwin M. Borchard – Convicting The Innocent...... 22 3rd Revised and Updated Edition of Kirstin Blaise Lobato’s Unreasonable Conviction Online!...... 23

Message From The Publisher Information About Justice:Denied The adage “Justice delayed is justice denied” is particularly apro- Justice:Denied promotes awareness of wrongful convictions and pos when someone’s wrongful conviction is only recognized after their causes. It provides information about convicted people their death. The presidential pardon of Jack Johnson 105 years claiming innocence, exonerated people, and compensation after his race based prosecution and conviction of violating the awards, and provides book and movie reviews, and reports about federal Mann Act is a well-deserved posthumous pardon. See p. 3. court decisions, and law review and journal articles related to wrongful convictions. The use of technology ahead of its adoption by a government agency can result in an unwarranted prosecution and conviction. DO NOT SEND_JUSTICE:DENIED ANY LEGAL WORK! That is what happened to Meow Ludo Meow-Meow when he Justice:Denied does not and cannot give legal advice. implanted the chip from his Transport New South Wales’ Opal If you have an account of a wrongful conviction that you want to Card into his left hand without permission to do so. See p. 5. share, send a first-class stamp or a pre-stamped envelope with a An increasing number of countries and states are providing for the request for an information packet to, Justice Denied, PO Box pardoning, setting-aside, or expungement of historic convictions 66291, Seattle, WA 98166. Cases of wrongful conviction submit- for homosexual acts between consenting adults no longer consid- ted in accordance with Justice:Denied’s guidelines will be re- ered to be a crime. Queensland, Australia has joined that group. viewed for their suitability to be published. Justice:Denied See p. 10. reserves the right to edit all submitted accounts for any reason. The filing of false rape/sexual assault reports is a serious problem Justice:Denied is published four times yearly. Justice:Denied is a that typically results in no negative consequences for the women trade name of The Justice Institute, a 501(c)(3) non-profit organiza- who do so. An exception to that was the conviction of Mary tion. If you want to financially support the important work of publiciz- Zolkowski for filing a false rape report in Michigan, and her ing wrongful convictions, tax deductible contributions can be made to: sentence of 45 days in jail. See p. 14. The Justice Institute The purpose of the federal Hyde Amendment enacted in 1997 was PO Box 66291 to discourage federal prosecutor misconduct by awarding reim- Seattle, WA 98166 bursement to a defendant who was victimized by a prosecution Credit card contributions can be made on Justice:Denied’s website, that was “vexatious, frivolous, or in bad faith.” However, the www.justicedenied.org/donate.htm difficulty in being granted reimbursement under the Hyde Amend- Please note: Justice Denied protects the privacy of its donors. ment was discovered by Gerald Bove after his acquittal of racke- Justice Denied will not disclose its donors to any third party teering and attempted extortion. See p. 8. without presentation of a valid legal process. Hans Sherrer, Editor and Publisher logo represents the snake of evil www.justicedenied.org – email: [email protected] and injustice climbing up on the scales of justice.

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 2 ISSUE 75 - SPRING 2019 “I applaud Two years later the 24-year-old Johnson Boxer Jack Johnson Post- President defeated “Denver” Ed Martin in Los Ange- humously Pardoned 105 Trump for is- les to win the unofficial Negro heavyweight suing a post- boxing championship. Years After Conviction humous For Crossing State Line pardon of Although the 6'-2" and 200 pound Johnson boxing leg- was a leading contender to challenge for the With White Woman end Jack world heavyweight boxing championship Johnson, title, no promoter would sponsor the fight in ack Johnson aka John Arthur Johnson, whose repu- the United States because he was black. So Jhas been granted a posthumous presi- tation was ru- a fight was arranged in Sydney, Australia dential pardon for his 1913 federal convic- ined by a for December 26, 1908, between Johnson tion for violating the Mann Act — also racially and reigning champion Tommy Burns. known as the White-Slave Traffic Act. charged con- Burns was induced to agree to the fight by Jack Johnson before Jess Willard viction over being guaranteed the then unheard of purse fight in Havana in April 1915. Johnson was the world heavyweight boxing a century of $30,000, which in 2016 would be the champion from Dec. 1908 to April 1915. ago. For years, Congress has overwhelm- equivalent of more than $18 million.[1] The ingly supported legislation calling on multi- 30-year-old Johnson dominated Burns and His prosecution was based on him crossing ple U.S. presidents to right this historical the fight was stopped in the fourteenth state lines for immoral purposes: Johnson wrong and restore this great athlete's legacy. round. Writer Jack London traveled to Aus- was black and he was accompanied by a President Trump’s action today finally clos- tralia to watch the fight and afterwards he white woman. Johnson fled the U.S. while es a shameful chapter in our nation’s history wrote, “The Fight! – there was no fight!” he was free on bond during the appeal of his and marks a milestone that the American conviction and sentence of a year and a day people can and should be proud of.” Johnson’s victory that broke boxing’s color in federal prison. barrier of separate black and white champi- Justice Denied supported the pardoning of ons enraged white racists across the U.S. so He spent seven years abroad before volun- Jack Johnson since March 2009 when it much, that the search began for what news- tarily returning to the U.S. in 1920. He published a 2,300 word article detailing the papers called the “Great White Hope” to completed his sentence by serving 10 injustice of his prosecution, conviction, and return the world championship to a white months in federal prison. He was 68 when imprisonment. man. The search was fruitless as Johnson he died in a car crash in 1946. beat all who challenged him. A revision and update of that article was President Donald Trump pardoned Johnson published by Justice Denied in June 2016. James J. Jeffries retired in 1905 as the unde- after learning about his case from actor That article follows: feated heavyweight champion.[2] His re- Sylvester Stallone. Stallone has said John- cord for the quickest KO in a heavyweight son was the inspiration for the Apollo Creed Presidential Pardon Elusive For championship fight still stands: In April character in his Rocky movies. 1900 he knocked Jack Finnegan down twice Boxing Great Jack Johnson before knocking him out only 55 seconds Johnson is only the third person granted a after the fight began. With no white man By Hans Sherrer posthumous presidential pardon in U.S. histo- able to defeat Johnson, the 35-year-old Jef- Justice Denied ry. Both President George W. Bush and Presi- fries came out of retirement to fight Johnson Issue 63 (Spring 2016), pp 12-14 dent Barack Obama refused to pardon Johnson in 1910. Jeffries was induced to risk his at the request of congressmen and senators. unblemished record for a guaranteed purse Prizefighter John Arthur “Jack” Johnson Trump said during the pardon ceremony: of $100,000, a huge sum at a time when a was knocked-out by Joe Choynski in the skilled factory worker made about $2 for a “I am taking this very righteous step, I third round of their boxing match in Galves- ten-hour workday. Adjusted for inflation believe, to correct a wrong that occurred in ton, Texas on February 25, 1901. After the Jeffries’ purse was the equivalent of over our history, and to honor a truly legendary fight both men were arrested by Texas $55 million today.[3] boxing champion, legendary athlete, and a Rangers for violating Texas’ state law bar- person that, when people got to know him, ring mixed-race boxing matches: Johnson The fight held in Reno, Nevada on July 4 they really liked him and they really thought was black and Choynski was white. John- was billed as the “Battle of the Century.” he was treated unfairly as a human being son and Choynski then spent the next 23 Johnson was faster and had more stamina and unfairly as a champion.” days in the same Galveston jail cell waiting than the older Jeffries, and after Jeffries was to find out if knocked him down for the first time in his Click here to watch a Youtube video of they would career in the 15th round, his corner threw in the pardoning ceremony on May 24, 2018. be indicted. the towel at the count of seven to avoid a Johnson’s great-great niece Linda Haywood When the knock-out. Johnson’s decisive victory over was present, as were Stallone, and represen- grand jury Jeffries triggered wild celebrating in the tatives of the boxing world. failed to in- streets by blacks across the United States. In dictment more than twenty-five states and fifty cities, Senator John McCain advocated for many them they racial fighting occurred that resulted in the years that Johnson should be pardoned. He were released deaths of at least 23 blacks and 2 whites. issued a statement after Trump signed and told to Many hundreds more were injured. Johnson’s pardon: get out of Jack Johnson and Joe Choynski in jail town. in Galveston, Texas in February 1901. Johnson cont. on p. 4

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 3 ISSUE 75 - SPRING 2019 Johnson cont. from p. 3 trial dur- Johnson imprisoned after returning to U.S. ing Mann Act used to hound Johnson which his After another five years of prize-fighting sexual in- overseas, and even financing the founding In 1910 the public’s furor was whipped up volve- of a Harlem nighclub that later became the by sensational news stories that white wom- ment world-famous Cotton Club, Johnson re- en were being abducted in Europe and with turned to the United States in July 1920. forced into prostitution in the United States. white The 42-year-old Johnson surrendered to Although the accounts were of dubious women federal authorities, and was sent to the Unit- truthfulness, Congress reacted by enacting was de- ed States Penitentiary at Leavenworth, Kan- the White-Slave Traffic Act (“Mann Act”), scribed sas to serve his sentence. He was released which outlawed transporting a women as “de- on July 9, 1921 after almost a year of im- across state lines or into or out of the coun- bauch- prisonment. try “for the purpose of prostitution or de- ery” and Johnson invents new wrench in prison bauchery, or for any other immoral a “crime purpose.” James J. Jeffries and Jack against While imprisoned Johnson saw the need for Johnson fighting in Reno, nature.” a new type of wrench. Johnson designed a Johnson was seen cavorting in public with Nevada on July 4, 1910. Schreiber new wrench and after his release he applied white women. Johnson’s behavior with was the for a patent from the U.S. Patent Office. On white women resulted in him being ha- government’s star witness. It is believed she April 18, 1922 the U.S. Patent Office issued rassed by the police and arrested a number cooperated with authorities because she was patent 1,413,121 for Johnson’s invention. of times for petty offenses. Johnson said in upset with Johnson for marrying Cameron. disgust at one point, “Next thing, Johnson’s life after prison somebody’ll arrest me for being a brunette Johnson was convicted in May 1913, and Cameron divorced Johnson in 1924 on the in a blond town.” Johnson committed the sentenced to 1 year and 1 day in Federal basis of infidelity, and the next year he ultimate flaunt of acceptable public behav- prison. He was also fined $1,000. After married another white women. She was ior of the day by marrying a white woman Johnson’s sentencing the prosecutor de- Johnson’s third wife, all white. in early 1911. His wife suffered from severe fended the government’s demand for prison depression and she committed suicide in time and not just a fine for Johnson, because Johnson continued September 1911. he was “the foremost example of the evil in prizefighting after his permitting the intermarriage of whites and release from prison, but Unable to find a white man able to beat blacks.” United States District Judge he was denied a boxing Johnson in the boxing ring, his foes turned George Carpenter also defended his sen- license in many states to using Johnson’s self-proclaimed lust for tencing of Johnson to prison, saying, “The because of his felony white women as a way to destroy him in the defendant is one of the best-known men of conviction. During courtroom. On October 18, 1912, Johnson his race and his example has been far-reach- World War II Johnson was arrested for violating the Mann Act by ing.” participated in exhibi- allegedly transporting Lucille Cameron, a tion boxing matches to white woman acquaintance, across state Johnson flees U.S. after Mann Act promote the sale of war lines for an “immoral purpose.” The charg- conviction bonds. He was 68 when es were dropped because Cameron, who he died in a 1946 auto- married Johnson in December 1912, re- In spite of his public comments, Judge Car- View A of Jack John- penter released Johnson on bail pending the mobile accident that oc- son’s new wrench fused to provide any evidence against him. curred after he left a that was granted U.S. Although the indictment was dismissed, it outcome of his appeal. Johnson responded by fleeing to Canada in June 1913, and then Raleigh, North Carolina Patent 1,413,121 on was the first time the Mann Act was in- April 18, 1922. traveling to various European and South diner in a rage after he voked to criminalize consensual sexual re- was refused service because he was black. lations. American countries. While Johnson was on the lam the federal Johnson was inducted into the Boxing Hall In 1913 Johnson was again charged with of Fame in 1954, and he is an inductee of violating the Mann Act, this time for alleg- Seventh Circuit Court of Appeals rejected the argument of his lawyers that the Mann both the International Boxing Hall of Fame edly transporting a very pretty young white and the World Boxing Hall of Fame. woman, Belle Schreiber, across state lines Act didn’t criminalize a woman crossing for the “immoral purpose” of having “sexu- state lines to have voluntary sexual rela- tions. The court ruled the statute encom- Johnson life story was the basis of the 1967 al intercourse with her ... against the peace play The Great White Hope, that in 1970 and dignity of the United States.” The in- passed all sorts of “sexual immorality, and that fornication and adultery are species of was made into a movie by the same title that dictment was somewhat unusual because it starred James Earl Jones as Johnson. repeatedly described Schreiber as Johnson’s that genus.” Johnson v. United States, 215 F. 679, 683 (7th Cir. 1914). wife. Although it wasn’t true that they were In the spring of 2001, the one-hundredth married (he was married to Cameron), Johnson continued prizefighting while in year after Johnson’s arrest in Galveston, the Johnson’s indictment on the basis they were Texas State Senate passed a Resolution de- married suggested that federal authorities self-exile. After seven years as heavyweight champion, on April 5, 1915 he lost his title claring his prosecution and conviction of considered marital relations between an in- violating the Mann Act was a “contrived terracial couple that traveled from one state in Havana, Cuba when Jess Willard knocked him out in the 26th round. Johnson charge” resulting from political and racial to another to be a violation of the Mann Act. tensions of his time. The Texas House of That supposition was supported by the gov- was 37. He never regained the heavyweight ernment’s opening argument at Johnson’s title he lost to Willard. Johnson cont. on p. 5

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 4 ISSUE 75 - SPRING 2019 AUS$220 and or- based in Sydney. Bio-Hacker Meow-Meo- dered to pay w’s Convictions Set-Aside AUS$1,000 court Public transportation riders in NSW can use costs. an Opal Card that is a smartcard waved in And Charges Dismissed front of a detection device to pay for an For Using Public Trans- Meow-Meow lives electronic ticket. The Opal Card functions as in Sydney, New a quasi debit card, with users adding money portation Chip Implant- South Wales, Aus- to their account as needed to purchase tick- tralia. His Facebook ets. In June 2017 a media story reported that ed In His Hand page states he is the Meow-Meow removed the electronic chip Chief Strategy Offi- from his Opal Card and had it implanted in bio-engineer whose legal name is Me- cer of VivoKey, a his left hand for convenience, and so he ow-Ludo Disco Gamma Meow-Meow, Meow Ludo Meow-Meow A after his convictions were biotechnology com- wouldn’t have to keep track of it. has had his convictions related to his novel overturned on June 18, pany based in Seat- use of a public transportation smartcard 2018 (Peter Rae - AAP) tle, Washington. He had the chip encased in bio-compatible set-aside and the charges dismissed on ap- VivoKey’s website states it is a platform for plastic and in April 2017 it was surgically peal. Meow-Meow had the chip from his digital identity, authentication, cryptogra- implanted just beneath the skin on the side Transport New South Wales’ Opal Card phy, and payment applications secured with of his left hand. The 32-year-old told Aus- implanted into his left hand. After his con- implantable subdermal NFC devices. Me- tralia’s ABC News, “It gives me an ability victions in March 2018 he was fined ow-Meow is also founder of Biofoundry Meow-Meow cont. on p. 6

Johnson cont. from p. 4 decent American to jail. Pardoning Jack President Bush prior to him leaving office Johnson will serve as a historic testament of in January 2009. Representatives adopted a similar Resolu- America's resolve to live up to its noble tion, and March 31, 2001 was declared Jack ideals of justice and equality.”[5] In March 2013 Senator McCain and Repre- Johnson Day in the State of Texas. sentative King tried again by respectively On October 5, 2004 the United States Senate introducing resolutions in the Senate and National interest in Johnson’s life was re- unanimously passed a Resolution in support the House of Representatives calling for the vived by publication in 2004 of the biogra- of granting a posthumous presidential par- pardoning of Johnson. Democratic Senator phy, Unforgivable Blackness: The Rise and don to Johnson, but the House of Represen- Harry Reid joined McCain in supporting the Fall of Jack Johnson by Geoffrey C. Ward. tatives didn’t follow suit. The three sponsors resolution.[6] The resolution passed in the of the Senate Resolution were McCain, Or- Senate, but not the House, and President Petition to posthumously pardon rin Hatch and Edward Kennedy. Obama did not act to pardon Johnson. Johnson filed in 2004 Ward’s book inspired filmmaker Ken Burns In September 2007 Representative Peter Then again, in February 2015 Senators Mc- to make a documentary about Johnson’s life, King (R-NY) sponsored a U.S. House of Cain and Reid and Representative King in- which was first shown on the Public Broad- Representatives Resolution supporting the troduced resolutions in the Senate and casting System in January 2005. While granting of a posthumous pardon to John- House in support of Johnson’s pardon.[7] As working on the documentary Burns became son. With 40 co-sponsors it was passed by of late June 2016 those resolutions have not convinced that Johnson’s 1913 Mann Act a voice vote on September 26, 2008. The passed, and President Obama has not acted. conviction was based on racial hatred and resolution stated in part: Endnotes: not a violation of the law. Burns joined with (1) John Arthur “Jack” Johnson paved the 1. $30,000 in 1908 was the equivalent of $18,400,000 a coalition of civil rights activists, sports in 2016 using the economic power method of calculat- way for African American athletes to partic- ing inflation, according to the Measuringworth web- figures, lawyers, and politicians who sup- ipate and succeed in racially integrated pro- ported the filing on July 13, 2004, of a site, http://www.measuringworth.com/uscompare fessional sports in the United States; 2. The boxer’s Jeffries fought in title fights weren’t petition with the U.S. Department of Justice chumps. At the time of his 11 title fights the cumula- that sought a posthumous presidential par- (2) Jack Johnson was wronged by a racially tive record of his opponents was 229-32-39. don of Johnson. The petition argued that motivated conviction prompted by his suc- 3. $100,000 in 1910 was the equivalent of $55,200,000 Johnson “should be pardoned because his cess in the boxing ring and his relationships in 2016 using the economic power method of calculat- with White women; ing inflation, according to the Measuringworth web- conviction was the result solely of “con- site, http://www.measuringworth.com/uscompare trived charges” reflecting attitudes and mo- (3) the criminal conviction of Jack Johnson 4. “Petition for the Posthumous Pardon of the Former res that America has long since outgrown. unjustly ruined his career and destroyed his Heavyweight Boxing Champion Jack Johnson,” America no longer questions the right and reputation; and 5. Pardon sought for 1908 black boxing champ, The ability of racial minorities to compete equal- (4) the President should grant a posthumous Seattle Times, July 14, 2004 6. Like Bush, Obama rebuffs pardon for boxing great ly in athletic endeavors. And America no pardon to Jack Johnson to expunge from the Jack Johnson, McClatchy Newspapers, March 11, 2013 longer prosecutes and punishes women and annals of American criminal justice a racial- 7. Reid, McCain again seek pardon of boxer Jack men who choose to marry or date persons of ly motivated abuse of the prosecutorial au- Johnson, Reno Gazette Journal, February 26, 2015 other races, religions or national origins.”[4] thority of the Federal Government, and to Sources: recognize Jack Johnson'’s athletic and cul- “Jack Johnson,” Enshrinee, International Boxing Hall At the press conference announcing the tural contributions to society. of Fame website. petition’s filing, one of its supporters, Sena- “Pardon sought for 1908 black boxing champ,” The Seattle Times, July 14, 2004. tor John McCain (R-AZ) said, “A gross and The U.S. Senate did not pass a pardon Res- “Petition for the Posthumous Pardon of the Former grave injustice was done to Jack Johnson olution as it did in 2004, so a joint House Heavyweight Boxing Champion Jack Johnson,” Filed where a law was perverted to send this and Senate Resolution was not forwarded to with U.S. Department of Justice, July 13, 2004.

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 5 ISSUE 75 - SPRING 2019 Meow-Meow cont. from p. 5 makes the Opal Card to expand his use of body implants. He told unique is its elec- reporters that by the end of 2018 he plans to that not everyone else has, so if someone tronic chip, without upgrade the chip in his hand to also function stole my wallet I could still get home.” He which it is just a as a credit card for everyday purchases. said he is able to wave the implanted Opal piece of plastic. chip to be detected just like people using a Meow-Meow appealed, arguing his actions card to board a ferry, bus, or train. His Opal Perhaps inspired by didn’t constitute a crime and his convictions Card account was charged the same as if he Meow-Meow holding Meow-Meow’s should be quashed. had waved a card instead of his hand. standard Transport NSW case, two days be- Opal Card (ABC News - fore his trial was On June 17, 2018 New South Wales District Meow-Meow said the implant is not radi- Nick Dole) scheduled to begin, Court Judge Dina Yehia quashed Meow- cal, because “Putting technology into the Transport NSW published new “terms and Meow’s convictions and ordered dismissal body is not unusual.” He said there are conditions for the use of a smartcard.” The of the charges. Judge Yehia described the implants like pacemakers for heart condi- new regs included the radical change of case as “highly unusual … involving a tions and intrauterine devices (IUDs) for allowing people to purchase electronic ferry unique set of circumstances.” She said he birth control. He said, “While one [implant] and light rail tickets using “Approved Pay- did pay his train fare and made no attempt might be for birth control, which we’ve ment Devices,” that include credit cards, to avoid paying on his Opal Card account; decided is pretty OK, this one is to make smartphones, and watches.[1] An official he didn’t have any previous convictions; catching public transport easier.” told the media the revised regulations and there was no harm to Transport New weren’t intended to replace the Opal sys- South Wales so given the prosecution’s He said he has two other near-field commu- tem, but to make it more convenient for evidence the objective seriousness of his nication NFC implants in his hand and arm, people to pay for public transportation. alleged offence could be at “the very bot- including one that he stores documents on. tom” of what could even be considered a Meow-Meow couldn’t be written off as a Meow-Meow’s trial was in the Newtown crime. Although Yehia’s ordered return of nut-case: he dressed smartly and was well- Local Court on March 14, 2018. His lawyer, the fine, she did not rescind the order for spoken. Nicholas Broadbent, argued Meow-Meow Meow-Meow’s payment of court costs. had not defrauded Transport NSW; he had Transport NSW authorities reacted to the no intention to do so; and he complied with With erasure of his criminal conviction and story about Meow-Meow’s innovation by the spirit of the law by using the Opal chip dismissal of the charges Meow-Meow threatening to deactivate his Opal Card ac- to pay for his transportation. Broadbent wrote on his Facebook page that he won a count. A transport spokesperson told the told Magistrate Margaret Quinn that: “He “moral victory.” meadia: “Customers that are caught tamper- describes himself occasionally as a cyborg ing with their Opal Card may have their — that is, a person who implants or has Meow-Meow’s case may have some posi- card cancelled.” The spokesperson said that components of machinery on his person.” tive effect: NSW Transport Minister An- under Opal’s terms of use transit officers Broadbent acknowledged it may seem drew Constance told ABC News that as part can confiscate a misused card. In Meow- “strange” to some people to “implant in of it standard review of transport policies, Meow’s case that would be impossible oneself the chip from an Opal Card,” but he the next policy update may take into ac- since his Opal Card’s chip is implanted in explained one goal of bio-hacking is to count innovative forms of using the Opal his body. reduce a users interface with machines. He Card’s chip technology. argued Meow-Meow’s motive for installing TNSW didn’t deactivate Meow-Meow’s the chip was to “make his life easier” and he Meow-Ludo Meow-Meow’s Facebook Opal Card. Instead they waylaid him. In Au- was “in effect ahead of where the law is.” page is www.facebook.com/meowludo . gust 2017 he was descended upon by a trans- portation officer in the Sydney suburb of The prosecutor, Andrew Wozniak, argued The website for Biofoundry is Newtown when he was seen waving his hand that having a valid ticket means holding an http://foundry.bio . Biofoundry describes to buy a train ticket. After he did not provide Opal Card as it is issued by the state govern- itself as “Australia's first community lab for a physical Opal Card he was cited for two ment, and “Whatever was in the defendant’s citizen scientists. Among Biofoundry’s misdemeanors: attempting to travel without a hand, it certainly wasn’t a card.” projects are: Lab-grown meat; Synthetic valid ticket (i.e., one purchased with an Opal palm oil; and, Analogue Insulin (an Insulin Card); and, not producing a ticket to a trans- Quinn was not receptive to Broadbent’s argu- substitute). port officer upon request. At the time he had ments, and found him guilty of both charges. $14.07 in his Opal Card account, which was She sentenced him to pay a fine of $220 fine Endnote 1: “Passenger Transport (General) sufficient to pay for his ticket. and ordered to pay $1,000 in court costs. Regulation 2017, Clause 76(1)(b) Valid (The fine was in Australian dollars. In US$ smartcards”: His prosecution was the fine was $173 and court costs were $788.) “These terms and conditions for the use of based the Opal a smartcard repeal any previous terms and Card’s terms of use, Outside the courtroom Meow-Meow told conditions for the use of a smartcard pub- which says users reporters his prosecution wasn’t justified lished by Transport for NSW and take effect cannot “misuse, de- because people can use a credit card to on and from 12 March 2018.” face, alter, tamper purchase an electronic ticket on their smart- with, or deliberately phone. He said: “I feel like this is another “Transport for NSW accepts 2 kinds of damage or destroy one of the times where legislation isn’t writ- smartcards, being: Meow-Meow indicates the Opal Card.” The ten correctly, it ends up punishing people 1. Opal Card; and with his fingers where the terms of use don’t who aren’t really doing the wrong thing.” 2. Approved Payment Devices.” Opal chip is implanted in recognize that what His conviction didn’t faze him from planing his left hand (BuzzFeed News) Meow-Meow cont. on p. 7

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 6 ISSUE 75 - SPRING 2019 Du Purton was allowed to remain free on Robert du Purton’s Evi- bond pending the outcome of his appeal. dence That Expert’s Trial His appeal challenged the sufficiency of the evidence on the basis grading and apprais- Testimony Was Unreli- ing coins has subjective factors, and the able, Not Enough To prosecution’s evidence didn’t prove beyond a reasonable doubt that he didn’t honestly Grant Coram Nobis Peti- grade and value the coins he sold. tion One Suffolk Square in Islandia, New York where the In May 2004 his conviction and sentence offices of Robert du Purton’s coin-selling companies were affirmed by the appeals court. Howev- he denial of Robert du Purton’s writ of were located. (Google Streetview, Sept. 2017) er, in 2005 the U.S. Supreme Court granted Tcoram nobis challenging his 2001 feder- day on a $250,000 secured bond. du Purton’s writ of certiorari. Based on al conspiracy and fraud convictions was U.S. v. Booker (2005) the Supreme Court affirmed by the U.S. Second Circuit Court A month later, on April 5, 2000, the 40- remanded his case for further consideration of Appeal on June 4, 2018. Du Purton unsuc- year-old du Purton was indicted for mail of his 51 month prison sentence by the trial cessfully argued that new evidence under- fraud, conspiracy to commit mail fraud, and judge. mines the reliability of key expert testimony conspiracy to commit wire fraud. the jury relied on to convict him. Du Purton The trial judge affirmed du Purton’s sen- was sentenced to 51 months in prison and The charges were based on the govern- tence, which he began serving on October 28, ordered to pay $1,873,819.50 in restitution. ment’s allegation he defrauded purchasers 2005. Du Purton was released from federal of collectable coins by fraudulently misrep- prison on May 8, 2008. He then began serv- The appeals court’s ruling was the latest resenting the condition, value, and market- ing his three years of supervised released. episode in du Purton’s more than 18-year ability of the coins. legal saga. After du Purton’s conviction the govern- The key issued during du Purton’s trial was ment retained Swiatek to appraise 26,612 In 2000 Robert du Purton was the owner of the grade and value of the coins he sold. To coins that it had seized from du Purton in four coin-selling companies in Islandia, New prove he committed fraud the government 2000. Swiatek appraised the coins as worth York.[1] (Islandia is on Long Island about 50 introduced into evidence 702 coins purchased from $430,000 to $460,000. miles east of New York City.) His office was by customers that he had graded and valued. raided in late February 2000 by federal au- The government sought forfeiture of the thorities executing a search warrant. A week The prosecution retained two men consid- 26,612 coins, and in February 2009 a final later he was arrested, and released the same ered experts to examine the coins. Grading order of forfeiture was entered. coins is a subjective art, not a science. One expert was Richard Montgomery, who at In December 2010 du Purton’s coins were Meow-Meow cont. from p. 6 the time was the president of the Profession- auctioned for a total of $1,827,176. al Coin Grading Service. Du Purton did not Online at, object to Montgomery’s opinion testimony Du Purton first learned in April 2014 that https://www.opal.com.au/en/asset/30134 that du Purton had overgraded a little more the public sale netted four times what Swi- 5a5-471f-4303-86d4- than half of the coins. However, du Purton atek had appraised the coins as worth. 38153ae618ff/opal_terms_of_use_march did object to admittance of the testimony of _2018.pdf . Anthony Swiatek, who operated a coin The most sacred doctrine in criminal law is business and had written three books about finality of a defendant’s conviction after Sources: the coin business. Swiatek testified, over the their direct and post-conviction appeals Biohacker Meow-Ludo Disco Gamma Meow-Meow have been unsuccessful, and their sentence who implanted Opal Card into hand escapes convic- objection of du Purton’s lawyer, about his tion, By Meredith Griffiths, ABC.net.au, June 18, 2018 opinion of the value of the coins. The judge has been completed. At that point the defen- dant’s case is sealed tighter than the tomb of Sydney bio-hacker who implanted Opal Card into overruled the objection that Swiatek’s testi- hand fined for not using valid ticket, By Lily Mayers, mony was too speculative. an Egyptian king buried in a pyramid. The ABC.net.au, March 15, 2018 only way to get around finality is by way of Sydney man has Opal card implanted into hand to Du Purton’s defense was that he had not a coram nobis petition. Coram nobis is an make catching public transport easier, By Nick knowingly sold over-graded and over extraordinary remedy of last resort that can Dole, ABC.net.au, June 27, 2017 priced coins. be pursued if a defendant is able to over- Opal card implanted into Sydney man Meow-Me- come a number of difficult hurdles, one of ow could be deactivated by NSW authorities, By After a ten week trial, on May 17, 2001 du which is new evidence proving their con- Nick Dole, ABC.net.au, June 27, 2017 Purton was convicted by the jury of all viction was “irregular and invalid.” The A Self-Described “Cyborg” Who Got A Travel charges. standard for granting a coram nobis petition Card Chip Implanted In His Hand Just Got A Ticket is so high that they are rarely granted in Fine, By Lane Sainty (Australia Reporter), Buzzfeed.com, March 15, 2018 He was subsequently sentenced to 51 federal (and state) court. Only one person months in federal prison to be followed by was exonerated in the United States by the Credit card payments for trips expanded across ferries, light rail, By Matt O’Sullivan, The Sydney three years of supervised release. He was granting of a coram nobis petition in the ten Morning Herald, March 12, 2018 also ordered to pay a special assessment of years from 2008 to 2017. “Passenger Transport (General) Regulation 2017, $2,300 and restitution of $1,873,819.50. Clause 76(1)(b) Valid smartcards” The restitution was based on Swiatek’s tes- Du Purton believed the auctioning of the Meow-Ludo Meow-Meow, Facebook.com timony about the value of the 702 coins coins for $1.8 million proved what he had VivoKey, https://vivokey.com purchased from du Purton. Purton cont. on p. 8

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 7 ISSUE 75 - SPRING 2019 Hobbs Act was based on the government’s The Hyde Amendment didn’t open the Gerald Bove’s Acquittal allegation that from 1997 to 2007 he con- floodgates for reimbursement of the legal Not Enough For Attor- spired with other union officials to extort expenses of a defendant who was acquitted “property from various construction firms or had their conviction overturned on ap- ney’s Fees Reimburse- throughout Western New York.” peal. Federal court’s have so restrictively ment Under Federal interpreted it that only a handful of defen- Bove and three other union member code- dants have been reimbursed their legal ex- Hyde Amendment fendants were acquitted of all charges on penses and costs in the 20 years since it took March 7, 2014. One defendant, Mark N. effect. Court’s have acted on the basis the erald E. Bove was acquitted by a feder- Kirsch, President and Business Manager of Hyde Amendment “places a daunting ob- Gal court jury in 2014 of one count of Operating Engineers Local 17 was convicted stacle before defendants who seek to obtain conspiracy to commit racketeering and one of all charges: conspiracy to commit racke- attorney fees and costs from the govern- count of attempted extortion. In 2016 the teering, conspiracy to commit extortion, and ment following a successful defense of trial judge denied Bove’s application under attempted extortion. In August 2016 Kirsch criminal charges.” the Hyde Amendment for reimbursement of was sentenced to 36 months in federal prison. his attorney’s fees and other expenses he Bove believed he meet the high standard incurred in successfully defending against In 1997 the Hyde Amendment was enacted under the Hyde Amendment, and filed an the charges. Bove appealed. On April 26, to discourage misconduct by federal prose- application for reimbursement of his attor- 2018, the U.S. Second Circuit Court of cutors. It allows a federal judge to award ney and other costs. Appeal affirmed the denial of Bove’s ap- attorney’s fees and court costs to a criminal plication in ruling he didn’t meet the Hyde defendant who retained a private lawyer, Bove’s application was denied by his trial Amendment’s high standard to recover at- “where the court finds that the position of judge on November 7, 2016. He appealed. torney’s fees and costs. the United States was vexatious, frivolous, or in bad faith.”[1] Reimbursement of fees On April 26, 2018 the U.S. Second Circuit At the time of his trial Gerald Bove was the and costs to a defendant come out of the Court of Appeal unanimously affirmed the former Business Representative of Operat- budget of the federal agency involved, typi- district court’s denial of Bove’s application. ing Engineers Local 17, based in Hamburg, cally the United States Attorney’s Office. N.Y. His federal prosecution under the Bove cont. on p. 9

Purton cont. from p. 7 not show circumstances compelling On June 4, 2018 a three-judge panel of the grant of the writ to achieve justice.” contended in 2001, that Swiatek’s trial testi- U.S. Second Circuit Court of Appeal unani- mously affirmed Judge Spatt’s ruling. The We find that du Purton has failed to mony about the value of the coins he sold show a defect in the evidence at his trial, was speculative and unreliable. He retained Court’s ruling in Robert du Purton v. USA, No. 17-151 (2nd Cir., 6-4-2018) stated: and accordingly we AFFIRM the order a lawyer and began retrieving documents to of the district court.” support a coram nobis petition seeking to “In United States v. Morgan, 346 U.S. reverse his conviction and sentence. 502 (1954), the Supreme Court, describ- Du Purton can seek reconsideration of the ing the writ of coram nobis as an “ex- panel’s decision. If that is unsuccessful, he His coram nobis petition was filed in Febru- traordinary remedy” that allows could file a writ of certiorari with the U.S. ary 2015. It argued his conviction should be “[c]ontinuation of litigation after final Supreme Court. Both have extremely long set-aside because the jury relied on Swi- judgment and exhaustion or waiver of odds of success. atek’s testimony, whose methodology was any statutory right of review,” ... “under subjective and “grossly unreliable” in light circumstances compelling such action to Even if the June 4 ruling proves to be the of the public auction. achieve justice.” final word in du Purton’s case, he did re- ... ceive one significant benefit from the 2010 In December 2016 U.S. District Court auction of the 26,612 coins: Enough money Judge Arthur Spatt issued his ruling deny- In Foont v. United States, 93 F.3d 76 (2d Cir. 1996), we stated that a writ of was received to pay-off the large majority ing du Purton’s petition. Spatt dismissed du of his court ordered restitution. Purton’s argument about the importance of coram nobis is available where “errors . the public auction sale price of the coins. . . of the most fundamental character have rendered the proceeding itself ir- Endnote 1. Robert du Purton’s four companies Spatt stated: “The jury could have convict- were: Numisgroup Intl. Corp.; Numismatic Asset ed the Petitioner without Swiatek’s conclu- regular and invalid.” ... We added that, Strategies, Inc.; Galerie Des Numismatique, Ltd.; and, sions. Thus, the Petitioner’s coram nobis “[c]laims of new evidence . . . without Meridian Numismatics, Inc. petition is denied in its entirety.” However, constitutional or jurisdictional error in the underlying proceeding, cannot sup- Sources: that conclusion was contradictory to what Robert du Purton v. United States of America, No. Spatt stated in his summary of the trial: port a coram nobis claim.” 17-151 (2nd Cir., 6-4-2018) (Affirming District Court’s denial of corum nobis petition that was based on new “The key issue at the trial was the grade and Du Purton’s petition does not satisfy the evidence expert’s trial testimony was inaccurate.) value of the Petitioner’s coins.” Spatt’s rul- standard for coram nobis relief. He ar- Robert du Purton v. United States of America, 224 ing disregarded that Swiatek provided the gues that auction results from the sale of F.Supp.3d 187, No. 15-CV-1026 (ADS) (USDC E.D. the Inventory Coins show that Swiatek’s NY, 12-16-2016) (Denying writ of corum nobis peti- prosecution’s only testimony concerning tion that was based on new evidence expert’s trial the key issue of the value of du Purton’s trial testimony regarding valuation was testimony was inaccurate.) coins. [Du Purton v. U.S., 224 F.Supp.3d “factually and objectively inaccurate.” ... United States v. Numisgroup Intern. Corp., 128 F. 187 (USDC E.D. NY, 12-16-2016)] Du Purton’s argument is nothing more Supp. 2d 136 (E.D.N.Y. 2000) than speculation. ... the issue he raises as U.S.A. v. Numisgroup Intern. Corp., 368 F. 3d 880 (2nd Du Purton appealed. Cir., 5-21-2004) (Affirming conviction and sen- to Swiatek’s method of valuation does tence)

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 8 ISSUE 75 - SPRING 2019 Bove cont. from p. 8 (1) the standard of review applicable to a denial of a Hyde Amendment appli- Justice Denied’s The Court ruled the district court judge did cation is “abuse of discretion”; and Article Index not abuse his discretion in ruling Bove (2) the District Court did not abuse its www.justicedenied.org failed to prove his prosecution was “vexa- discretion by denying Bove’s applica- tious, frivolous, or in bad faith.” The tion and concluding that the position of There are links to all Justice De- Court’s ruling in USA v. Gerald E. Bove, the United States was not vexatious, nied articles published since Is- No. 16-384-cr (2nd Cir., 4-26-2018). stated: frivolous, or in bad faith... sue 1 in 1999 in the Justice Bove argues that the government’s We therefore AFFIRM the District Denied Article Index. There are case against him was “frivolous and Court’s Decision and Order of Novem- more than 1,500 articles in the ber 7, 2016. vexatious” because the prosecution’s Index concerning cases or issues theory of the Hobbs Act was “contrary in every state in the U.S., and to clear law and [the District Court’s] The Court made clear that the prosecution’s rulings in the same case.” failure to introduce evidence sufficient to more than 50 countries. The government’s unsuccessful prose- prove Bove’s guilt was irrelevant to the cution of Bove relied on a novel theory judge’s evaluation of his Hyde Amendment of the Hobbs Act ... A person can [] reimbursement application. The prosecu- violate the Hobbs Act under this theory tion’s failure to introduce any credible evi- by using extortion to “replac[e] non dence of a defendant’s guilt doesn’t union workers with union workers,” establish their prosecution was “vexatious, even when the labor at issue is not “un- frivolous, or in bad faith.” wanted, superfluous,” or “fictitious.” Justice Denied’s Wordpress page has The government’s position cannot have The appeals court's ruling in Bove's case the latest articles and information. See, been vexatious. Vexatiousness requires illustrates why the Hyde Amendment has www.justicedenied.org/wordpress some wrongful, harassing purpose; completely failed as an impediment to nothing in the record suggests to us that shady federal prosecutions: the government prosecutors adopted the theory for the is free to prosecute a defendant without any purpose of vexing or harassing Bove. credible evidence of their guilt knowing that defendant has no recourse to recover the Nor was the theory so baseless as to money they spend on lawyers and other Visit the Innocents Database make the government’s position frivo- legal expenses to successfully defend lous. No precedent had expressly adopt- against bogus charges. Includes details about more than ed the government’s theory. But no 129,000 wrongly convicted people precedent in our Circuit definitely fore- Endnote 1. The “Hyde Amendment” was enacted from the U.S. and other countries. closed the theory either. .. An arguable by Congress in the Act of Nov. 26, 1997, Pub.L. No. theory is not a frivolous theory. 105-119, tit. VI, § 617, 111 Stat. 2440, 2519 (1997), www.forejustice.org/exonerations.htm reprinted in 18 U.S.C. § 3006A, Note (2006). The Note ... titled “Award of Attorney’s Fees and Litigation Ex- Visit the Wrongly Convicted Bove also argues that the govern- penses to Defense” provided that: Bibliography ment’s position was in “bad faith” be- “the court, in any criminal case (other than a case cause the prosecution’s evidence was in which the defendant is represented by assigned Database of hundreds of books, insufficient. The government’s “only” counsel paid for by the public) pending on or after law review articles, movies and the date of the enactment of this Act [Nov. 26, evidence against him, he says, was the 1997], may award to a prevailing party, other than documentaries related to wrongful grand jury testimony of witness Phillip the United States, a reasonable attorney’s fee and convictions. other litigation expenses, where the court finds Hale that contradicted Hale’s earlier www.forejustice.org/biblio/bibliography.htm statements to investigators. According that the position of the United States was vexa- tious, frivolous, or in bad faith, unless the court to Bove, the government thus knew or finds that special circumstances make such an should have known that testimony was award unjust.” “not credible.” Sources: We held in United States v. Schneider USA v. Gerald E. Bove, No. 16-384-cr (2nd Cir., 4-26- that a prosecution is not vexatious, friv- 2018) Visit Justice Denied’s olous, or in bad faith simply because a Hyde & Seeking Attorney’s Fees in Cases of Prose- Website witness whose testimony directly incul- cutorial Misconduct, Patterson Belknap Webb & Ty- pates the defendant is arguably not cred- ler LLP, May 2 2018 www.justicedenied.org ible. “Local 17 President and Business Manager Con- victed of Racketeering Conspiracy, Conspiracy to Back issues of Justice: Denied can ... Commit Extortion and Attempted Extortion, Press Re- be read, there are links to wrongful Bove further argues that the govern- lease,” Department of Justice, U.S. Attorney’s Office, Western District of New York, March 7, 2014 conviction websites, and other in- ment’s position was in “bad faith” and Former Local 17 leader gets prison for role in reign formation related to wrongful con- “vexatious” because of several alleged of violence, Buffalo News, August 31, 2016 victions is available. JD’s online instances of prosecutorial misconduct. The “Hyde Amendment” was enacted by Congress Bookshop includes more than 70 ... We conclude that the District Court in the Act of Nov. 26, 1997, Pub.L. No. 105-119, Tit. did not “abuse its discretion” by reject- VI, § 617, 111 Stat. 2440, 2519 (1997), reprinted in 18 wrongful conviction books, and ing Bove’s assertions of prosecutorial U.S.C. § 3006A, Note (2006) JD’s Videoshop includes many misconduct. United v. Isaiah, 434 F.3d 513, 519 (6th Cir.2006) dozens of wrongful conviction mov- In summary, we hold as follows: ies and documentaries.

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 9 ISSUE 75 - SPRING 2019 1) The decision their employment or profession.” Men In Queensland, Aus- maker has to be tralia Can Apply For Ex- satisfied the other Under the legislation all applications for person involved expungement of a conviction from relevant pungement Of Historic in the act or omis- public records must be submitted to the Conviction For Consen- sion was an adult; Director-General of Queensland’s Depart- and, ment of Justice. If an eligible person is de- sual Homosexual Activity 2) The decision ceased, a relative or close personal friend maker does not can submit an application on the person’s en in Queensland, Australia can sub- have to be satis- behalf. Applications are evaluated on a case mit an application to expunge their fied the act or Queensland, Australia by case basis. The Attorney-General decides M Coat of Arms conviction for a consensual homosexual act omission was whether an application is granted or denied. with an adult that is no longer considered a committed in a place the public had crime. At least 464 men are believed to be access to, but is required to be satisfied The DG’s office can be contacted for infor- eligible to submit an application. the act or omission is no longer consid- mation about the expungement process by ered an offense in Queensland. email: [email protected]; or by Consensual adult male homosexual activity regular mail: ceased to be a criminal offense in Queen- The “Criminal Law (Historical Homosexual Office of the Director General sland on January 19, 1991 with passage of Convictions Expungement) Act 2017” was Department of Justice the Criminal Code and Another Act Amend- introduced in Queensland’s Parliament on GPO Box 149 ment Act 1990. Revision of the criminal May 11, 2017. Brisbane QLD 4001 statues was based on political acknowledge- ment that under the changing mores of soci- Queensland’s Attorney General Yvette The Director-General’s website is: ety the private and voluntary acts of adults D’Ath made a statement supporting the Ex- http://www.justice.ql is not a matter of concern for the legal pungement Act: d.gov.au/corporate/b system. The repealed laws included the fel- usiness-areas/office “Forcing the repeated disclosure of ony of committing or attempting to commit of-ddirector-general those convictions and charges to poten- the unnatural act of carnal knowledge (i.e., . tial employers, public administrators anal intercourse); and the misdemeanor of a The Department of Jus- and others has caused people inconve- public or private act of “gross indecency.” tice and Attorney Gen- nience and embarrassment and, worst of Gross indecency included sexual activity eral’s website is at: all, has forced them to continually relive other than anal intercourse, such as oral sex. http://www.justice. the trauma associated with their arrest, qld.gov.au . charge and conviction. This has inhibit- Attorney General Yvette Repealing the laws did not affect the con- ed people from pursuing employment D’Ath (Brisbane Times) viction of men successfully prosecuted pri- The Criminal Law opportunities, volunteering in their or to 1991: it just prevented future (Historical Homosexual Convictions Ex- communities and fully participating in prosecutions. pungement) Act 2017, Act No. 37 of 2017, civic life right up until today.” can be read at: In 2015 the Queensland Government ex- https://www.legislation.qld.gov.au/view/h Parliament passed the expungement legisla- pressed support in-principle for expunge- tml/asmade/act-2017-037 tion on October 23, 2017, with consider- ment of the criminal record for men ation of applications to begin on June 30, convicted of homosexual activity decrimi- The Criminal Law (Historical Homosexual 2018. nalized in 1991. The Queensland Law Re- Convictions Expungement) Bill 2017, Ex- form Commission (QLRC) was tasked with planatory Notes (This explains the history After its passage, D’Ath told reporters: examining the issue of implementing an of the expungement legislation.), can be “Once a conviction is expunged a person expungement process. read at, http://tinyurl.com/y7zzabb8 . does not need to disclose the offence nor be discriminated against for non-disclosure in The QLRC issued its Report on November Queensland is in northeastern Australia. It 29, 2016: “Expunging criminal convictions has a population of 4.9 million and a land for historical gay sex offences” (No. 74). area almost identical to Alaska, the U.S.’s The Report recommended legislation that largest state. Brisbane, 575 miles north of allowed for submission of an application to Sydney, is the most populous city with a expunge a historical Criminal Code offense metro population of 2.4 million. from a person’s criminal history in certain Sources: circumstances. Criminal Law (Historical Homosexual Convictions Ex- pungement) Act 2017, Act No. 37 of 2017, Queensland A Bill was drafted that implemented the Government (Queensland Legislation), Oct. 23, 2017 QLRC’s recommendations, and added cer- Criminal Law (Historical Homosexual Convictions Ex- tain historical ‘public morality’ offenses -- pungement) Bill 2017, Explanatory Notes, Queensland such as behaving in an indecent or offensive Government (Queensland Legislation), Oct. 23, 2017 manner in a public place -- that were in Queensland gay sex convictions finally set aside, By effect before January 1991. The Bill also Stuart Layt, Brisbane Times, June 14, 2018 Criminal Law (Historical Homosexual Convictions made two significant changes to evaluation Expungement) Bill 2017 (QLD), TimeBase.com, May of an expungement application: Queensland is in the northeast corner of Australia. (Google Maps) 12, 2017

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 10 ISSUE 75 - SPRING 2019 dissent to the Ninth Circuit’s decision deny- After about ten years of procedural maneu- Ezzard Ellis’ Habeas ing a rehearing en banc in Anderson v. Calde- vering during which the U.S. Ninth Circuit Corpus Denied Because ron, 276 F.3d 483, 484 (9th Cir. 2001). Ames Court twice remanded Ellis’ case back to was the defense lawyer in that murder case.) the federal district court, in July 2016 the Lawyer’s Unknown Ra- judge denied Ellis’ claim on its merits. cial Insensitivity Doesn’t Ellis also learned of another 2001 Ninth Circuit case in which Ames defended a black Ellis appealed. Constitute Ineffective As- defendant who after his murder conviction and sentence of death learned about Ames’ On July 7, 2018 a three-judge panel of the sistance Of Counsel sentiment toward blacks. In that case the Ninth Circuit affirmed the district court’s defendant’s habeas petition included a claim ruling denying Ellis’ petition. The Court’s he denial of Ezzard Charles Ellis’ habe- that Ames’ attitude about blacks created an Per Curiam Opinion in Ellis v. Harrison, Tas corpus petition by a U.S. District actual conflict of interest in defending him. No. 16-56188 (9th Cir., 6-7-18) stated in Court judge was affirmed by the Ninth Cir- The California state courts denied the defen- part: cuit Court of Appeals. Ellis is black and he dant’s claims. He filed a federal habeas cor- claimed he was provided ineffective assis- pus petition that was denied in the district “Before Ellis’s conviction was final, we tance of counsel solely on the basis he court. The defendant appealed, but his claim decided a case concerning “an appoint- learned many years after his convictions and Ames’ view of blacks created a conflict of ed lawyer who calls [the defendant] to life sentence for murder, that his lawyer was interest warranting a new trial was denied by his face a ‘stupid nigger son of a bitch’ racially insensitive. Ellis did not claim his the Ninth Circuit. Under Strickland v. Wash- and who threatens to provide substan- lawyer failed to adequately defend him. Ellis ington (1984), to establish ineffective assis- dard performance for him if he chooses claimed his lawyer’s racial views constituted tance of counsel a petitioner must show their to exercise his right to go to trial.” Fraz- an “actual conflict of interest” that by itself lawyer’s performance “fell below an objec- er v. United States, 18 F.3d 778, 783 (9th warranted him being granted a new trial. tive standard of reasonableness,” and that Cir. 1994). We held that these facts Perhaps more significant than the Court’s absent that deficient performance there is a “would render so defective the relation- ruling was the concurring opinion endorsed reasonable probability the outcome of their ship inherent in the right to trial counsel by all three judges (See last paragraph.). trial would have been different. In Mayfield guaranteed by the Sixth Amendment v. Woodford, 270 F.3d 915, 925 (9th Cir. that [the defendant] would be entitled to Ezzard Ellis and another man were arrested 2001) the Court ruled: “Mayfield has not a new trial with a different attorney,” and charged in November 1989 with mur- demonstrated that Ames performed poorly ... der, attempted murder, and the robbery of because of the alleged conflicts. According- Frazer’s rule of prejudice per se relied two men who were in their car ordering at a ly, we decline to grant a COA on Mayfield’s in part on the outburst itself. The [attor- McDonald’s drive-through window in San claim that Ames’ alleged conflicts of interest ney’s] ... statement “completely Bernardino County, California. Ellis was 19. caused him to provide ineffective assistance destroy[ed] and negate[d] the channels of counsel.” of open communication needed for the Ellis’ prosecution was based on his identifi- [attorney-client] relationship to function cation by multiple eyewitnesses, including The information was completely new to as contemplated in the Constitution.” a McDonald’s employee who knew Ellis Ellis because during the almost two years “In order to demonstrate that Ames’s from going to school with him. that Ames represented him, Ames did noth- racist views prejudiced him, Ellis must ing indicating to Ellis that he had any racial show either that he knew of these views Attorney Donald Ames was appointed to animosity towards him or blacks in general. during a critical phase of the proceed- represent Ellis. ings, leading to a complete breakdown Ellis obtained counsel who in addition to in communication as in Frazer, or that Ames defense for Ellis was he had been the affidavits used in the Mayfield case, Ames’s racism otherwise adversely af- misidentified by the eyewitnesses. secured affidavits from two of Ames’ fected his performance as counsel. Ellis daughters, several of Ames’ former em- concedes that he was unaware of Ames’s Ellis’ first two jury trials were declared as ployees, and a San Bernardino Superior racism until several years after his con- mistrials because subpoenaed witnesses Court clerk. The affidavits related derogato- viction was final. ... Ellis fails to identify were unavailable. His third and fourth trials ry comments Ames had made about blacks. any acts or omissions by Ames that “fell ended in mistrials because the jury was However, Ames didn’t single out blacks. below an objective standard of reason- unable to reach a unanimous verdict. Ellis’ The lawyers also learned that Ames like- ableness.” ... We are therefore bound fifth jury trial concluded in June 1991 with wise made unflattering comments about his under Mayfield to reject his claim.” his conviction of all charges. He was sen- white daughters, Japanese, and Hispanics. tenced to life in prison without the possibil- In addition to the written Per Curiam Opin- ity of parole. Ellis filed a state habeas corpus petition ion, Vietnamese born Judge Jacqueline based on his claim that Ames provided inef- Nguyen wrote a concurring opinion that was Ellis’ appeals were unsuccessful, and his fective assistance of counsel because his joined by the other two judges: Japanese- convictions and sentence became final in “racial prejudice against AfricanAmeric- American A. Wallace Tashima and Michael May 1996. ans” created an actual conflict of interest Daly Hawkins. Nguyen expressed extreme that required his conviction being vacated personal dissatisfaction with Ames com- Twelve years after his conviction, in the and the granting of a new trial. After the ments about non-whites (Nguyen disregard- spring of 2003 a friend of Ellis’ sent him a state courts denied his petition, Ellis filed a ed that Ames also disparaged white females, newspaper article that described Ames as federal habeas corpus petition that made the e.g., his daughters) -- even though the “deceptive, untrustworthy, and disloyal to his same ineffective assistance of counsel claim. Court’s opinion acknowledged that Ames capital clients.” (The article quoted from the Ellis cont. on p. 12

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 11 ISSUE 75 - SPRING 2019 indictment alleged that on multiple occa- U.S. Attorney’s Of- Simone Swenson’s Indict- sions she matched two prospective families fice. After the last ment Reinstated By Ap- with the same birth mother as a means to continuance her tri- obtain adoption fees from both families. al was scheduled peals Court And Trial She would then avoid contact with the fam- for February 7, Judge Replaced For ilies, and “she would find a way, through 2017. lies and misrepresentations, to get out of the Comment About Incom- double matches” without returning the fees. Before the pretrial The indictment alleged that Swenson ille- conference Swen- petent Women in Law gally collected $111,000 from the scheme. son’s PD expressed concerns to Assis- By Hans Sherrer A bench warrant was issued for Swenson tant U.S. Attorney U.S. District Court Judge and she was arrested. She was released on a Tina Ansari, who Lynn N. Hughes imone Swenson’s federal indictment for $10,000 appearance bond after her arraign- was assigned the case, and Judge Hughes, Smail and wire fraud was reinstated by ment on August 3, 2015. that she still wasn’t being provided all dis- the U.S. Fifth Circuit Court of Appeals on covery documents. July 3, 2018. The appeals court ruled the U.S. District Court Judge Lynn N. Hughes prosecution’s repeated delays in producing was assigned to her case. Hughes gained During a pretrial hearing on Jan. 23 -- two discovery evidence was not sufficient justi- national notoriety in 2003 when he granted weeks before trial -- Swenson’s PD told fication for the trial judge to dismiss Swen- ex-CIA operative Edwin Wilson’s habeas Judge Hughes “that the prosecution was son’s indictment with prejudice. corpus petition. Wilson was released after allowing the victimized families and wit- 22 years of wrongful imprisonment for al- nesses to decide whether evidence was rele- In the summer of 2015 Swenson was 40, legedly transporting explosives to Libya. vant.” To which Hughes responded: “the and the owner and operator of Sans Pareil (At the end of this article is information prosecution was abdicating its duty to deter- Center for Children and Family Services in about Justice Denied’s three articles con- mine whether exculpating evidence exist- Houston, Texas. Her company was licensed cerning Wilson.) ed.” Ansari insisted she wasn’t “hiding to operate as a child placement agency. anything” and said: “I am very open. I give Swenson catered to families that wanted to Swenson retained a lawyer, and her trial everything to defense counsel as soon as I participate in a private (non-CPS) child was scheduled for Feb. 9, 2016. Her lawyer get it, Your Honor. I make copies for every- adoption program.[1] was granted a continuance to prepare for one.” trial. Swenson ran out of money and her Swenson was indicted by a federal grand lawyer withdrew from her case. She was Hughes ordered the prosecution to subpoe- jury on July 29, 2015 for two counts each of then appointed a federal public defender. na all emails between the victimized fami- mail fraud and wire fraud, and the govern- lies and Swenson and turn them over to her ment gave notice of criminal forfeiture. The Swenson’s public defender obtained three lawyer. The prosecutor offered to obtain maximum sentence for each count is 20 more continuances based on not being pro- years in prison and a $250,000 fine. Her vided all requested documents from the Swenson cont. on p. 13

Ellis cont. from p. 11 phen Wayne Anderson. Stephen Anderson counsel under Strickland v. Washington (1984).) was executed in 2002, so Ames apparently Anderson v. Calderon, 276 F. 3d 483 (9th Cir., 12-21- 2001) (Ames provided constitutionally effective assis- conveyed absolutely no inkling to Ellis of didn’t do as good of a job for that white tance of counsel to Stephen Wayne Anderson during his personal opinion during the years he was client as he did for his black client Ellis. The both guilt and punishment phases of his capital trial.) Ellis’ lawyer, and available evidence suggests the nowdec- [REINHARDT, Circuit Judge, with whom Circuit Judges PREGERSON, HAWKINS, TASHIMA, W. there is compelling eased Ames was more color-blind in carry- FLETCHER, and PAEZ join dissenting: “In our May- evidence Ames’ ing out his professional duties than Judge field en banc decision, we not only held (for the second opinion had no ef- Nguyen who wrote in her concurring opin- time) that Ames had acted incompetently in a capital fect on his represen- ion: “If we were writing on a blank slate, I case, but also related facts that made it clear that Ames had been deceptive, untrustworthy, and disloyal to his tation: It was no would vote to grant relief. ... Had we not capital clients. Specifically, in Mayfield, we reported small feat that Ames been bound by Mayfield, I would have that there were “six declarations indicating that Ames was successful in granted Ellis’s petition.” Nguyen, along was racially prejudiced” and that two of those declara- tions “related racial epithets that Ames used in refer- preventing Ellis’ with Tashima and Hawkins, are openly ad- ence to minority clients.” Id. at 924”] conviction until af- vocating for the expansion of affirmative Wade v. Calderon, 29 F.3d 1312 (9th Cir.1994) (Ames ter five trials, and action to include the granting of a habeas provided constitutionally ineffective assistance of Ellis was not sen- corpus petition filed by a black defendant counsel to Melvin Meffery Wade during the punish- tenced to death. based merely on an allegation of secret rac- ment phase of his capital trial.) Mayfield v. Woodford, 270 F.3d 915 (9th Cir.) (en Nguyen also disre- ism by their lawyer. They want the shackles banc) (Ames provided constitutionally ineffective as- Stephen Wayne Anderson garded that the of the current color-blind habeas law re- sistance of counsel to Demetrie Ladon Mayfield during was a white client of attor- newspaper clipping moved so a black can be awarded a new trial the punishment phase of his capital trial.) (“We hold ney Donald Ames. Ste- that the performance of Mayfield’s counsel at the sent to Ellis in 2003 without the cumbersome need to present penalty phase was deficient and that Mayfield suffered phen Anderson was about Ames’ sus- actual evidence their white lawyer was in- executed in 2002 at Cali- prejudice as a result.) fornia’s San Quentin State pect treatment of his volved in an egregious act or omission that People v. Mayfield, 852 P. 2d 331 (Cal. Supreme Court Prison for his 1981 convic- murder clients was resulted in an unfair trial. 1993) (Ames provided constitutionally effective assis- tion of murdering 81-year- tance of counsel to Demetrie Ladon Mayfield during regarding the capi- both guilt and punishment phases of his capital trial.) old Elizabeth Lyman in tal case of a white Sources: her home and the robbery Ellis v. Harrison, No. 16-56188 (9th Cir., June 7, 2018) 16-56188 Ezzard Ellis v. C. Harrison, Oral of money he found. defendant -- Ste- (Ames provided constitutionally effective assistance of Arguments, March 7, 2018

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 12 ISSUE 75 - SPRING 2019 Swenson cont. from p. 12 to share the information it has. ... A continu- Hughes was ordered removed from the case ance, however, would be too much delay. because of his comment during the hearing search warrants for the emails. This is not a particularly complicated case, on February 6, 2017 that the appeals court and there is no reason to extend it farther. judges wrote was “beneath the dignity of a The next day another pretrial hearing was The case will be dismissed.” federal judge.”: “It was lot simpler when held during which the search warrants were you guys wore dark suits, white shirts and signed. Hughes “made clear to the govern- When queried by Swenson’s PD, Hughes navy ties. . . . We didn’t let girls do it in the ment that it should immediately comply clarified the dismissal was with prejudice, old days.” (p. 6)[2] Hughes has been a U.S. with its constitutional and rule-based dis- stating: “to crank it up and take another District Ct. judge since 1985. covery obligations.” three years is unacceptable.” The appeals court’s ruling in Swenson’s Several days later the prosecution dumped The government appealed. case illustrates that federal prosecutors are a large cache of previously undisclosed dis- typically allowed to engage in extensive covery documents on Swenson’s PD. The Fifth U.S. Circuit Court of Appeals shenanigans concerning the disclosure of reversed Hughes’ ruling on July 3, 2018. exculpatory evidence with no consequences. Then four days before trial Swenson’s PD In USA v. Simone Swenson, No. 17-20131 learned as a result of her own investigation (5th Cir., 7-3-2018) the Court rejected The district judge assigned to Swenson’s that she hadn’t been provided a report creat- Hughes’ determination that Swenson’s in- case on remand will set a new trial date. ed by the Montgomery County Sheriff’s dictment had to be dismissed because the Office. When contacted by the PD, the pros- “integrity of the prosecution ha[d] been Judge Lynn Hughes granted Edwin Wil- ecutor turned over that report and a number destroyed” due to its multitude of errors that son’s habeas corpus petition in 2003 based of others that hadn’t been previously dis- included “missed pretrial discovery dead- on the prosecution’s failure to disclose ex- closed. lines,” and the withholding of “some rele- culpatory evidence that he had not illegally vant documents until the eve of trial.” transported explosives to Libya. Wilson Swenson’s PD filed a Motion to Dismiss was released after 22 years of wrongful her indictment on the basis the undisclosed The Court rejected that the prosecution imprisonment. Justice Denied published reports were a Brady violation because they committed any Brady violations because: three articles about Edwin Wilson. The first were exculpatory evidence and refuted an “Even without a continuance, Swenson while his petition was pending, the second FBI report the prosecution relied on to pros- probably could have used the evidence ef- after it was granted, and the third about his ecute her. fectively at trial. Thus, there was no sup- death in 2012: pression and no Brady violation.” The A day before trial a hearing was held re- Court added that Hughes erred dismissing “Ex-CIA Agent Framed by the CIA and garding the Motion to Dismiss. Before it the charges because: “...even if Swenson Federal Prosecutors,” Justice Denied, Issue began the government delivered to Swen- could show a Brady violation, the usual 13, Sept. 2000, online at, son’s lawyer another large file of previously remedy is a new trial, not dismissal with http://justicedenied.org/wilson.html. undisclosed documents. prejudice.” (p. 10) “Federal Judge Tosses Conviction of Ex- CIA Agent Framed by the CIA and Federal Judge Hughes excoriated AUSA Ansari for The Court also rejected that the prosecu- Prosecutors,” Justice Denied, Issue 24, June how disclosure of evidence in the case had tion’s conduct of repeated discovery viola- 2004, online at, been handled: “You’re supposed to know tions warranted the sanction of dismissal of http://justicedenied.org/issue/issue_24/ed what you’re doing. You’re supposed to be the charges: “The district court failed to win_wilson.htm. the one thinking of stuff.” Hughes then said impose the least severe sanction, and the “In Memoriam: Edwin Paul Wilson 1928- offhandedly: “It was lot simpler when you government’s violations of the discovery 2012,” By Hans Sherrer, Justice Denied, guys wore dark suits, white shirts and navy deadlines do not warrant dismissing the Issue 52, Nov. 2012, online at, ties. . . . We didn’t let girls do it in the old indictment with prejudice.” (p. 11) http://justicedenied.org/issue/issue_52/in days.” During a discussion about the prose- _memoriam_wilson_jd52.pdf. cution’s newly produced evidence, Hughes The Court also rejected that the prosecution asked: “What else is out there that you committed misconduct by its multiple dis- Endnotes: misplaced or didn’t think was relevant so covery violations: “Reviewing the record, 1. Sans Pareil had a State foster care license until you didn’t check it at all?” we found nothing to suggest that the prose- August 2012 when it was revoked after State regulators discovered money intended for foster families was cution intentionally withheld the documents used to pay Swenson’s mortgage payments and visits Ansari told Hughes she was not intentional- or acted in bad faith. ... the government’s to a nail salon. ly withholding any information. Even mistakes here did not reach an abhorrent 2. Footnote 3 of the appeals court’s ruling states re- though discovery evidence had been drib- level.” The Court noted: “... it does not ap- garding Hughes’ comments: “At oral argument, Swen- bled to Swenson, Ansari said: “I have been pear that the district court attributed ill intent son’s counsel contended that the record is ambiguous an open book. I never try to keep anything to the prosecution. If anything, it seems the and perhaps the district court was speaking not to the prosecutors, but to other women present at the hearing. back.” district court attributed the government’s Regardless, such comments are demeaning, inappro- mistakes to the prosecutor’s sex.” (p. 12) priate, and beneath the dignity of a federal judge.” Hughes was unimpressed. He addressed the Motion To Dismiss by saying: “the govern- The Court concluded: “We REVERSE and Sources: USA v. Simone Swenson, No. 17-20131 (5th Cir., ment has had this case for three years. That REMAND the judgment dismissing the in- 7-2-2018) (Reversing dismissal of indictment and or- should be more than enough.” He noted the dictment, and we direct the Chief Judge of der case remanded to different judge.) 79 docket entries and said: “So, I could the Southern District of Texas to reassign this Houston Woman Arrested for Adoption Fraud, continue the case for the purpose of allow- case to a different district judge.” (pp. 13-14) Press Release, U.S. Attorney’s Office, Southern Dist. ing the government to prepare its case and of Texas, July 31, 2015

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 13 ISSUE 75 - SPRING 2019 mother called the parked. She said she didn’t want the man Mary Zolkowski Convict- Delta College Pub- prosecuted for rape. ed of Filing False Rape lic Safety Office and told an officer Police interviewed the man Zolkowski Report And Sentenced To that Zolkowski had named as her assailant. He said he had been 45 Days In Jail been raped. with Zolkowski on February 22, but they had Zolkowski talked to never gone to Delta College. He also showed ary T. Zolkowski has been sentenced the officer on the police investigators text messages from to 45 days in jail after pleading guilty phone and said she Zolkowski in which she claimed to have been M Mary Zolkowski mugshot was raped in a cam- raped by a stranger at Walmart after they had to filing a false rape report in Bay County, (Bay County, Mich. Sher- Michigan. Zolkowski filed a police report iff’s Office) pus parking lot at separated that day. He also showed police that she had been raped on February 22, 5:50 p.m. while texts from her that she didn’t want him to 2017, but she told stories claiming the rape walking to her vehicle. She said a man cooperate with the police. He also told them occurred in three different places: a college grabbed her from behind, and then grabbed that Zolkowski was trying to get a refund parking lot; a Walmart parking lot; and in her face and throat and proceeded to rape from Delta for the classes she had dropped. an apartment. her without wearing a condom. She said she only saw her assailant’s hands. She said that After the man was interviewed by the police The man she identified as her assailant told after raping her the man got into the passen- Zolkowski filed a report with the Saginaw police they had consensual sex at a Saginaw ger seat of a car and fled after raping her. Township Police Department alleging that apartment, and he provided his phone that She couldn’t describe anything about the he shoved her to the floor in the apartment had text messages from Zolkowski. vehicle. and raped her on February 22.

In May 2017 Mary Zolkowski admitted to She told the officer she did not want a On May 12 Zolkowski was interviewed for police she lied about being raped. physical exam and did not want to talk to a third time by police investigators. She police investigators about the rape. admitted that she had willingly had inter- Zolkowski was charged on July 31, 2017 course with the man at the apartment in with one count of False Report Of A Felo- The next day Zolkowski met with the col- Saginaw. ny. She was freed on her own recognizance lege’s Public Safety director and the Title after her arraignment in Bay County District XI coordinator. She told them she had Zolkowski was charged on July 31, 2017 Court. dropped courses due to the incident. Al- with one count of False Report Of A Felony though she said her neck and back were based on her admission she fabricated her She pled guilty on March 27, 2018 to filing sore, neither the director or coordinator no- claim of being raped at the apartment on a false felony report. ticed any bruising. She told them she didn’t February 22. She was arraigned on August want a police investigation of the rape. 14, 2017 in Bay County District Court. She The 22-year-old Zolkowski was sentenced was freed on her own recognizance pending to 45 days in jail with no credit for time The subsequent investigation discovered further proceedings. served, on June 18, 2018. She was also that contrary to what she told the director sentenced to two years probation upon her and coordinator, she had dropped the cours- She was not charged with fabricating being release, and ordered to undergo a mental es prior to February 22. raped on February 22 in the Delta College health assessment. Bay County Circuit parking lot, or the same day at Walmart, Judge Joseph Heeran told her that she A woman’s softball team was practicing because she didn’t file a police report about would serve an additional 220 days in jail if near the parking lot at the time of the al- those alleged incidents. she violates her probation. leged rape, and police investigators were told that none of the staff or players noticed Zolkowski is presumed innocent of filing a Zolkowski is currently serving her sentence anything out of the ordinary. false felony report unless and until she is at the Bay County Jail. convicted. Examination of Zolkowski’s car failed to Following is Justice Denied’s August 16, turn up any evidence of a rape. Zolkowski’s case is 1710440FY1 in the 2017 article about Zolkowski’s case that Bay County, Michigan District Court. provides background information: When Zolkowski was interviewed on March 17, almost a month after the alleged Filing a false felony report is a felony under Mary Zolkowski Charged With A Filing incident, she told investigators a different Mich. Penal Code 750.411a, with a maxi- False Rape Report After Claiming She story. She claimed to have actually been mum penalty of four years in prison and a Was Raped In Three Places On Same Day raped on February 22 at an apartment in $2,000 fine. Saginaw Township, about ten miles Sources: ary T. Zolkowski has been charged Woman who lied about being raped on college cam- south of Delta Col- pus gets jail, By Cole Waterman, Bay City News, June Mwith falsely reporting a felony after 19, 2018 admitting she fabricated her claim a man lege. She said she had been intoxicat- Woman pleads guilty to lying about being raped on raped her in Saginaw Township, Michigan. Delta College campus, By Cole Waterman, Bay City ed and didn’t give News, March 27, 2018 In February 2017 20-year-old Mary consent for sex, and Woman charged with falsely reporting she was raped that afterwards the at Delta College, By Cole Waterman, Mlive.com, Au- Zolkowski was a student at Delta College, a gust 15, 2017 two-year college near Bay City, Michigan. man drove her to Delta College State of Michigan v. Mary Zolkowski, No. 1710440FY1 Mary T. Zolkowski (Bay County, Michigan District Court) On the evening of February 22, 2017 her where her car was (Instagram)

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 14 ISSUE 75 - SPRING 2019 Robert Murat-Hinton’s That appeal was based on two arguments: U.S. Supreme Court Ac- 1) He was improperly denied the right to Findings Of Guilty In be present during the testimony of C.O. cepts Constitutional Two Jail Disciplinary D’Ambrosio — who authored the mis- Challenge To Dual Prose- behavior report, and C.O. Hill who wit- Hearings Annulled By nessed the conduct underlying the cutions By State And Court On Appeal report. Both officers gave testimony to the Hearing Officer by telephone. Federal Governments obert C. Murat-Hinton has had two 2) He was denied the right to call wit- By Hans Sherrer Rfindings of guilt in administrative pro- nesses in his defense, specifically, two ceedings while he was jailed in Warren inmates. he U.S. Supreme Court agreed on June County, New York annulled on judicial ap- 28, 2018 to review the “separate sover- While both appeals were pending Murat- T peal. eigns” exception that permits prosecution of Hinton was sentenced to complete serving a person in both state and federal court for his 3 year prison term. He was transferred to In 2013 Robert Murat-Hinton was convict- the same alleged crime. The review in- the New York DOC on March 6, 2018. ed of second-degree assault and sentenced volves the case of Terance Martez Gamble. to three years in prison. He was subsequent- He argued in his petition for a writ of certio- On March 26, 2018 Judge Robert J. Muller ly released on parole. rari that his separate state and federal con- issued his ruling in Murat-Hinton’s first victions for being a felon in possession of a He was arrested in mid-2017 on a probation appeal. He annulled his finding of guilt for two reasons: 1) His regulatory rights were firearm violates his Fifth Amendment right violation. He was booked into the Warren against “double jeopardy.” County Correctional Facility (WCCF). violated because the Hearing Officer made no effort to contact C.O. Polk and ascertain his willingness to testify; and, 2) His regula- Gamble’s case has so far flown under the Soon after his arrest Murat-Hinton was radar of constitutional activists. That can’t charged in a misbehavior report with “inso- tory right to reply to the evidence against be expected to last for long because it is a lence” and “failure to obey.” A disciplinary him was denied because he wasn’t allowed significant and unusual criminal constitu- hearing was held and he was found guilty of to view video evidence that played a signif- tional case. It directly involves reevaluation both charges. That determination was af- icant role in the Hearing Officer’s determi- of a juxtaposition of a State’s rights with firmed on administrative appeal. On Sep- nation. Muller did not order expungement those of the federal government that has tember 1, 2017 he filed a pro se judicial of the record of the disciplinary proceeding. remained undisturbed for 171 years. appeal in the Warren County Supreme Court under CPLR article 78. On July 5, 2018 Muller’s ruling was filed in Murat-Hinton’s second appeal. He an- The Rodney King case in Los Angeles is That appeal was based on two arguments: nulled his finding of guilt on the basis his perhaps the most well-known dual state constitutional right to call witnesses in his federal prosecution. King was a black taxi 1) He was improperly denied the right to defense was violated, because “The record driver whose tasering and beating by sever- have Correction Officer Polk who au- is devoid of any proof whatsoever that the al LAPD officers during his arrest on March thored the misbehavior report — testify Hearing Officer made a good faith effort to 3, 1991 was videotaped by a man from his at the hearing. secure the testimony of inmates Fish and nearby balcony. The videotape was sent to 2) He was improperly denied the right to Marr.” Muller’s ruling issued on June 27 KTLA-TV in Los Angeles, and it was review certain videotape footage of the ordered expungement of the record of the shown by media throughout the world. incident underlying the misbehavior report. disciplinary proceeding and refund of the $20.00 hearing fee. Four officers -- whose defense was King While that appeal was pending, Murat-Hin- was resisting arrest -- were tried in state ton was charged in a misbehavior report Murat-Hinton, 32, is currently incarcerated court for excess force: three were acquitted with “insolence” and “offenses against pub- at Marcy C.F., His first parole hearing date on April 29, 1992 and the jury couldn’t lic order.” A disciplinary hearing was held is scheduled for August 2018. reach a verdict on the fourth. Hours after the and he was found guilty of both charges. acquittals what became known as the 1992 Sources: Los Angeles Riot started. During the next That determination was affirmed on admin- Matter of Murat-Hinton v Farmer, 2018 NY Slip Op istrative appeal. On January 29, 2018 he 50978(U) Decided on June 27, 2018 Supreme Court, six days 63 people were killed, 2,373 in- filed a pro se judicial appeal in the Warren Warren County, Judge Muller (Publication date 7-5-2018) jured, and more than 12,000 arrested. Local County Supreme Court. Matter of Murat-Hinton v Lieutenant Wayne Farm- and state police were so overwhelmed that er, No.220 2018 NY Slip Op 50388(U) Decided on the California Army National Guard, the March 26, 2018 Supreme Court, Warren County, Judge Muller (Publication date 4-10-2018) U.S. Army, and the U.S. Marine Corps had to provide manpower to quell the rioting.

The four LAPD officers were then federally indicted and tried for violating King’s civil rights based on the same evidence relied on Justice Denied’s Facebook page is regu- to unsuccessfully prosecute them in state larly updated with information related to court. On April 16, 1993 two of the officers wrongful convictions. Justice Denied’s were acquitted, and two were found guilty homepage has a link to the Facebook and sentenced to federal prison.[1] page, www.justicedenied.org Warren County Municipal Center Dual Prosecutions cont. on p. 16

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 15 ISSUE 75 - SPRING 2019 Dual Prosecutions cont. from p. 15 federal laws criminalizing equivalent con- the same crime, when the States rely on duct doesn’t violate the Fifth Amendment’s authority originally belonging to them prohibition against double jeopardy. (See, before admission to the Union and pre- Gamble wants the Supreme Court to end the e.g., U.S. v. Lanza, 260 US 377 (1922); served to them by the Tenth Amend- 171-year-old “separate sovereigns” excep- Abbate v. U.S., 359 US 187 (1959); and, ment. Accordingly, we affirm.” tion to double-jeopardy that allowed King’s Heath v. Alabama, 474 U.S. 82 (1985).) In assailants to be tried for different federal its Abbate ruling the Court stated in regards Gamble filed a petition for a writ of certio- and state crimes based on the same incident. to the Lanza case that involved separate rari with the U.S. Supreme Court on Octo- state and federal illegal liquor prosecutions: ber 24, 2017. His petition emphasized the Terance Gamble was convicted in 2008 of “The Court held that the prior state convic- concurring opinion of Justice Ginsburg in felony second-degree robbery in Mobile tion did not bar the federal prosecution. It the Sanchez-Valle case in which she wrote: County, Alabama. As a convicted felon pointed out that the State could constitu- “The double jeopardy proscription is in- federal and state laws bar him for life from tionally make Lanza's acts criminal under tended to shield individuals from the ha- possessing a firearm. its original powers reserved by the Tenth rassment of multiple prosecutions for the Amendment, and the Federal Government same misconduct. [] Current “separate sov- In November 2015 Gamble was stopped by could constitutionally prohibit the acts un- ereigns” doctrine hardly serves that objec- a police officer in Mobile for having a der the Eighteenth Amendment.” (p. 193) tive. ... The matter warrants attention in a faulty tail light. The officer smelled mari- future case in which a defendant faces suc- juana and a search of Gamble’s car discov- Allowing dual state and federal prosecu- cessive prosecutions by parts of the whole ered two baggies of marijuana, a digital tions is known as the separate-sovereigns USA.” (p. 1877) scale, and a 9mm handgun. exception to double-jeopardy. Justice Thomas joined Ginsburg’s concur- Alabama prosecuted Gamble for being a U.S District Court Judge Kristi DuBose rence in Sanchez-Valle, but he wrote a sep- felon in possession of a pistol. He was con- denied Gamble’s motion in June 2016 on arate concurring opinion clarifying that he victed on May 27, 2016, and sentenced to the basis of Supreme Court precedent that agreed with her LAST SENTENCE. Thom- one year in prison. for purposes of criminal prosecutions the as specifically noted: “I cannot join the state and federal governments are separate- portions of the opinion concerning the ap- While his state case was pending, a federal sovereigns. Her Order stated: “According- plication of the Double Jeopardy Clause to grand jury indicted Gamble on April 28, ly, unless and until the Supreme Court over- successive prosecutions involving Indian 2016 for being a felon in possession of a turns Abbate, Gamble's Double Jeopardy tribes.” (p. 1877, underlining added) In oth- firearm based on the gun discovered during claim must likewise fail.” er words, Thomas thinks the separate sover- the traffic stop. eigns exceptions should apply to the States Facing a near certain conviction if he went under the Tenth Amendment as described in Gamble filed a motion to dismiss his federal to trial with a possible 10 year prison sen- the majority opinion, but not to “Indian indictment, arguing it violated his “Fifth tence, Gamble agreed to enter a conditional tribes.” Amendment [right] against being placed guilty plea that preserved his right to appeal twice in jeopardy for the same crime.” Judge DuBose’s denial of his double-jeop- Gamble’s petition presented the following Gamble relied on the U.S. Supreme Court’s ardy claim. Gamble was sentenced to 46 Question for the Supreme Court’s consider- 2016 ruling in Puerto Rico v. Sanchez Valle months in federal prison to be followed by ation: “Whether the Court should overrule that the double jeopardy clause bars a per- three-years of supervised release, and a the “separate sovereigns” exception to the son from being prosecuted for the same $100 assessment. His federal prison sen- Double Jeopardy Clause.” conduct by both the U.S. and Puerto Rico, tence was to run concurrent with his state because the U.S. and Puerto Rico are not sentence, so he would serve a total 46 His petition was based on three primary separate sovereign entities. (See, Puerto month prison sentence. arguments: Rico v. Sanchez Valle, 136 S. Ct. 1863 (2016).) Gamble completed his state prison sentence First, since the early 1800s the U.S. Su- on May 14, 2017. He was transferred to preme Court has ruled exactly opposite of In 1847 the U.S. Supreme Court first recog- federal custody to finish serving his 46 what it should have regarding the separate nized that a prosecution by a state govern- month prison sentence. His scheduled re- sovereigns exception to double jeopardy. ment and the federal government for the lease date is Feb. 16, 2020. Gamble argued that historically under Eng- same conduct doesn’t violate the Fifth lish common law “The rule “that an acquit- Amendment’s double jeopardy prohibition In July 2017 the Eleventh Circuit U.S. tal or conviction by a court of competent because the individual States and the United Court of Appeals affirmed Judge DuBose’s jurisdiction abroad”—i.e., by a separate States are separate sovereign governments. ruling. The Court’s opinion stated: sovereign—“is a bar to a prosecution for the In the 1847 case the Court affirmed a wom- same offense in England...” (7) an’s conviction by the State of Ohio for “The district court did not err by deter- passing a counterfeit U.S. silver dollar, rul- mining that double jeopardy did not Second, that the “separate sovereigns” ex- ing her prosecution was “clearly within the prohibit the federal government from ception violates the principles of federal- rightful power and jurisdiction of the State.” prosecuting Gamble for the same con- ism. Under federalism the states are vassels (See, Fox v. Ohio, 46 US 410, 432 (1847)) duct for which he had been prosecuted of a political system controlled by the feder- and sentenced for by the State of Ala- al government.[2] Gamble argues, “The The U.S. Supreme Court has rejected nu- bama, because based on Supreme Court separate-sovereigns exception turns feder- merous times that a person’s prosecution for precedent, dual sovereignty allows a alism on its head.” the same conduct under separate state and state government and the federal gov- ernment to prosecute an individual for Dual Prosecutions cont. on p. 17

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 16 ISSUE 75 - SPRING 2019 Dual Prosecutions cont. from p. 16 sovereignty. It was the genius of their idea attendant “exercise of arbitrary power” that our citizens would have two political would be frustrated, not safeguarded. [] capacities, one state and one federal, each [P]etitioners’ rule would “marked[ly]” alter Third, that stare decisis doesn’t apply to the protected from incursion by the other.” [] the distribution of crime-fighting authority, precedent established by Fox v. Ohio in Consistent with the constitutional design, as the States “have the principal responsibil- 1847 and affirmed in an unbroken series of the Double Jeopardy Clause does not pro- ity for defining and prosecuting crimes.” cases for 171 years, because legal standards hibit prosecutions by both a State and the (pp. 10-11) and norms have changed. Gamble argued: federal government for the same conduct: ... “The dramatic expansion of federal crimi- “[w]hen a defendant in a single act” breaks “In any event, it is not clear whether a nal law in the years since the separate-sov- the laws of two sovereigns, “he has commit- significant increase in the rate of federal ereigns exception is exactly the kind of ted two distinct ‘offences’” and can be pros- prosecution has actually occurred in areas seismic shift that calls for reevaluation of ecuted for both. [] Each sovereign is entitled of overlap with state authority. [] Under the doctrines, like the separate-sovereigns ex- to “exercis[e] its own sovereignty” to so-called “Petite Policy,” [] the Department ception, premised on the old regime.” “determin[e] what shall be an offense of Justice will generally decline to authorize against its peace and dignity” and prosecute a successive federal prosecution unless it is The Acting Solicitor General and Acting the offender “without interference by the justified by a substantial Federal interest Assistant Attorney General of the U.S. sub- other.” (p. 6) that was “demonstrably unvindicated” by mitted a brief in opposition to Gamble’s the prior state prosecution. [] And in exer- writ. That brief argued in general regard- “Under petitioner’s interpretation of the cising their discretion, sentencing courts ing Gamble’s main contentions: Double Jeopardy Clause, one sovereign’s can take into account the results of any efforts (successful or not) to enforce its own proceedings before another sovereign. [] Regarding Gamble’s first argument: laws would vitiate the other sovereign’s For example, the district court here decided similar law-enforcement prerogatives. But to have [] [Gamble’s] federal sentence for “As this Court recently reaffirmed in San- that cannot be squared with the Constitu- possessing a firearm as a felon run concur- chez Valle [] the Double Jeopardy Clause tion’s bedrock structure of governance. ... rently with his state sentence for being a does not prohibit successive prosecutions by As this Court has recognized, “undesirable prohibited person in possession of a firearm separate sovereigns for offenses that consist consequences would follow” if prosecution ...” (pp. 11-12) of the same elements, because transgres- by any one State could bar prosecution by sions against the laws of separate sovereigns the federal government. ... Similarly, if a The Solicitor General’s brief in opposition do not constitute the “same offence,” within federal prosecution could bar prosecution to Gamble’s writ can be read at, the meaning of the Double Jeopardy Clause. by a State, the result would be a significant http://www.supremecourt.gov/DocketPD ... The Court explained the roots of the prin- interference with the States’ historical po- F/17/17 ciple more than 150 years ago.”” (p. 5) lice powers.” (p. 7) 646/28031/20180116184058367_17 ... 646%20Gamble.pdf. “Petitioner contends [] that these cases were “The dual-sovereignty doctrine thus “finds all wrongly decided because, he asserts, weighty support in the historical under- An amicus curiae brief in support of Gam- they conflict with the plain text and original standing and political realities of the States’ ble’s writ was jointly filed by two organiza- meaning of the Double Jeopardy Clause. In role in the federal system and in the words tions: the Constitutional Accountability so claiming, petitioner largely relies [] on of the Double Jeopardy Clause itself.” ... As Center based in Washington D.C., which English law. But this Court has already Justice Holmes stated nearly a century ago, actively promotes a radical far left political considered and rejected that line of argu- the dual sovereignty doctrine is “too plain to agenda for legal and social issues; and, the ment. In Bartkus, this Court described as need more than statement.” Westfall v. Unit- Cato Institute based in Washington D.C., “dubious” such authorities and stated that ed States, 274 U.S. 256, 258 (1927).” (p. 7) which describes itself as “a nonpartisan they were not “relevant to discussion of our public-policy research foundation dedicated problem.” [] Given our unique constitution- Regarding Gamble’s third argument: to advancing individual liberty, free mar- al scheme, a doctrine rooted in the powers kets, and limited government.” Interesting- and obligations of separate State and federal “Petitioner also contends [] that the “dra- ly, their brief completely disregarded, as did sovereigns will necessarily reflect the matic expansion of federal criminal law” is Gamble’s petition, the key issue that the “American experience, including our struc- a “seismic shift that calls for reevaluation of foundation of the “separate sovereigns” ex- ture of federalism which had no counterpart [] the separate sovereigns exception.” But ception resides in the system established by in England.” ... “We have here two sover- the very point of the dual sovereignty doc- the U.S. Constitution and the Tenth Amend- eignties, deriving power from different trine is to allow each sovereign to enforce ment to the Bill of Rights that the States sources, capable of dealing with the same its laws within their respective constitution- have an “inherent sovereignty” separate and subject-matter within the same territory.” [] al spheres, without undue interference from distinct from the federal government.[3] As even critics of the dual sovereignty doc- the other. An increase in federal criminal trine have recognized, that was not true in enforcement would mean that now more Four of the nine Supreme Court justices England.” (p. 8) opportunities exist for the federal govern- must vote in favor of granting a petition for ment’s actions to impair the “historic right” a case to be reviewed by the Court. On June Regarding Gamble’s second argument: and obligation of each State to define of- 28, 2018 the Court granted Gamble’s peti- fenses and punish offenders within their tion to review his case. The Court doesn’t “This doctrine [of dual-sovereignty by the jurisdictions. [] If the federal government disclose its vote on petitions. However, States and federal government] follows could prevent a State from vindicating its since overturning the almost two centuries from “the basic structure of our federal criminal laws, the Founders’ desire to guard old “separate sovereigns” exception will system.” [] “The Framers split the atom of against a “centralized government” and the Dual Prosecutions cont. on p. 18

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 17 ISSUE 75 - SPRING 2019 Dual Prosecutions cont. from p. 17 Judge Rules PACER Fees ous to its use except serve to expand federal power by undercut- when specific infor- ting State sovereignty, it can be expected Can Be Used For Programs mation is sought that the four liberal justice on the Court Unrelated To Providing concerning a specific voted to grant the petition. It doesn’t seem known case. PACER likely that Justice Thomas voted to do so Federal Court Information allegedly exists to because he is on record as supporting the provide information -- but in many situa- exception in principle, but only questioning By Hans Sherrer if “Indian tribes” warrant being covered tions a user is under it -- which is not an issue in Gamble’s charged more to find n March 31, 2018 U.S. District Court U.S. District Court Judge the information be- petition. OJudge Ellen Huvelle ruled that PACER Ellen Huvelle ing looked for, than fees charged to the public for electronically the cost to download the actual information. No briefing schedule has been posted on the accessing federal court information can be Supreme Court’s website, or when oral ar- used for data processing programs unrelated The concept of PACER is fantastic and the guments will be held. to PACER. PACER has collected substan- information it provides is extremely useful. tially more in fees than it costs to operate the However, since its inception PACER’s policy Endnotes: electronic system, and for many years the 1. For background information see, Rodney King, makers appear to have operated on the as- Wikipedia.org. surplus has been spent on unrelated state and sumption its target clientele is major New 2: Wikipedia defines Federalism thusly: “Federalism is federal programs. Judge Huvelle’s ruling York and Washington D.C. law firms rolling the mixed or compound mode of government, combin- was a resounding victory for the govern- in dough from high buck clients: they will ing a general government (the central or ‘federal’ ment. Unless it is overturned on appeal Pac- pay their PACER billing without any concern government) with regional governments (provincial, er users will not be refunded excessive fees state, cantonal, territorial or other sub-unit govern- for how much it is. That may be the situation ments) in a single political system.” they’ve been charged, and they will continue for them, but not the myriad of PACER users 3. The Supreme Court’s majority opinion in Sanchez to be charged fees disproportionate to the who don’t have $500-$1,000 an hour clients. Valle recognized that: “Because States rely on “author- cost of operating the PACER system. ity originally belonging to them before admission to PACER originated in 1988 the Union and preserved to them by the Tenth Amend- PACER is an acronym for “Public Access to PACER originated in September 1988 when ment,” state prosecutions have their roots in an “inher- Court Electronic Records.” PACER is un- ent sovereignty” unconnected to the U.S. Congress.” the Judicial Conference “authorized an ex- 136 S. Ct. at 1866. known by the general public, but it is impor- perimental program of electronic access for tant to any organization, such as Justice the public to court information...” Sources: Denied, that regularly accesses federal court Terance Martez Gamble v. United States of America, No. 17-646, U.S. Sup. Ct. Docket records. The high charge for electronically In March 1990 the Judicial Conference ap- Terance Martez Gamble v. United States of America, accessing federal court records, and the per- proved an Electronic Public Access (“EPA) No. 17-646, U.S. Supreme Court, On Petition For A Writ sistent surplus resulting from those high rate schedule for accessing court data in Of Certiorari To The United States Court Of Appeals For charges, has been an issue for decades. The Eleventh Circuit (QUESTION PRESENTED: district and bankruptcy courts. The initial Whether the Court should overrule the “separate sover- charges were a yearly subscription fee of eigns” exception to the Double Jeopardy Clause.) The current lawsuit is of particular interest $60 per court for commercial users or $30 Terance Martez Gamble v. United States of America, to Justice Denied because PACER is used per court for non-profits, and a charge of $1 No. 17-646, U.S. Supreme Court, BRIEF FOR THE on a regular basis. However, it is judiciously per minute for commercial users or 50 cents UNITED STATES IN OPPOSITION [to writ of certiorari] used because PACER is structured to maxi- Terance Martez Gamble v. United States of America, per minute for non-profits. Those charges mize charges to the unwary. An uninformed made the PACER system more of a novelty No. 17-646, U.S. Supreme Court, BRIEF OF CON- person can easily rack up $50 to $100 in STITUTIONAL ACCOUNTABILITY CENTER than a practical service, because at the time AND CATO INSTITUTE AS AMICI CURIAE IN charges with a few mouse clicks. For exam- digital access was through a telephone dial- SUPPORT OF PETITIONER [writ of certiorari] ple, every person or case search is charged up connection that was extremely slow. On- US v. Gamble, Dist. Court, Crim No. 16-00090-KD-B for regardless of whether it returns a goose (WO) (USDC SD Ala., 6-20-2016) ly large law firms could afford to use the egg, or 10 pages of cases that may or may system on a regular basis. US v. Gamble, Court of Appeals, No. 16-16760, (11th not include the one being sought. If a case Cir, 7-28-2017) docket is viewed to find information, such Fox v. Ohio, 46 US 410, 12 L. Ed. 213 (1847)) The PACER system of today was effectively when a defendant was sentenced and what created by the Judiciary Appropriations Act of Puerto Rico v. Sanchez Valle, 136 S. Ct. 1863 (2016) their sentence was, the user is charged for Abbate v. U.S., 359 US 187 (1959) 1991, in which Congress authorized that the the number of pages PACER provides -- Judicial Conference “shall prescribe reason- which in a long or complicated case can able fees ... for collection by the courts under exceed 40 pages -- even if the information those sections for access to information avail- “The federal court safety-value was sought is on only a few lines of one page. able through automatic data processing equip- abruptly dismantled in 1996 when There are strategies to try and limit the ment. ... All fees hereafter collected by the Congress passed … the Antiterrorism charges, but they don’t always work to do Judiciary ... as a charge for services rendered and Effective Death Penalty Act. … so. shall be deposited as offsetting collections to We now regularly have to stand by in the Judiciary Automation Fund ... to reimburse Opening PACER’s quarterly statement of expenses incurred in providing these services.” impotent silence, even though it may charges can be a traumatic experience that appear to us that an innocent person isn’t for the faint of heart. The door needs to The Judicial Conference continued with its has been convicted. be closed, the window down, and no one initial public fee schedule. PACER’s man- Federal 9th Circuit Judge Alex Kozinski “Crimi- within earshot! ager was the Administrative Office of the nal Law 2.0,” 44 Geo. L.J. Ann. Rev. Crim. Proc (2015) (Preface, iii) PACER’s charges and policies are deleteri- Pacer cont. on p. 19

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 18 ISSUE 75 - SPRING 2019 Pacer cont. from p. 18 In 2007 the federal judiciary began using selves and a nationwide class of similarly- PACER fees to pay for courtroom technolo- situated PACER users, filed suit against the United States Courts (“AO”). gy “that would otherwise have to be funded United States claiming PACER fees “ex- with appropriated funds” from Congress. ceeded the amount that could be lawfully Federal court records available under the charged, under the E-Government Act of PACER fee system expanded in 1993 when The judiciary’s 2008 budget request to Con- 2002” and seeking “the return or refund of federal Court of Appeals records were add- gress proposed using millions in PACER the excessive PACER fees.” ed, in 1994 when Court of Federal Claims revenue for a Jury Management System records were added, and in 1997 Multidis- (“JMS”) Web Page, and a Violent Crime The government’s motion to dismiss was trict Litigation records were added. Control Act Notification (“VCCA”). denied in December 2016.

Revenue from PACER exceeded the costs The 2009 judiciary budget request assumed The plaintiff’s position was the statute “pro- of providing the service. the use of $68 million in PACER fees for “the hibits the AO from charging more in PAC- courts’ Salaries and Expenses account, there- ER fees than is necessary to recoup the total In 1995 the rate was reduced to 75 cents per by reducing our need for appropriated funds.” marginal cost of operating PACER.” minute for commercial users, and in 1996 it It also included many millions for continua- was reduced to 60 cents per minute “to tion of the JMS and VCCA programs, and The government’s position was of PACER avoid an ongoing surplus.” also a study for the State of Mississippi. fees can be used for more than to cover its operating cost, and they can be used “to In 1996 House and Senate Appropriations In February 2009 Senator Joseph Lieberman fund the dissemination of information Committees issued separate reports stating sent a letter to the Judicial Conference “in- through electronic means.” it was expected any PACER fee surplus quiring whether the judiciary was complying would be used to enhance the quality of with the E-Government Act,” because the On March 31, 2018 Judge Huvelle, in the service and the availability of public access “goal ... was to increase free public access to District of Columbia District Court, ruled the to court information. [court] records.” Lieberman also noted that government did not have to return or refund PACER fees were “still well higher than the any PACER fees because “the statute does Soon after that the Judicial Conference be- cost of dissemination,” and asked “how clearly state that the judiciary has the authori- gan planning for implementation of an PACER fees are determined, and whether ty to use its PACER fees for services that may Electronic Case Filing (“ECF”) system us- the Judicial Conference is only charging ‘to not directly benefit a particular PACER user.” ing surplus PACER fees. the extent necessary’ for records using the Judge Huvelle ruled PACER fees can be used PACER system.” The Judicial Conference for programs unrelated to PACER, and one A PACER web interface was created in responded by claiming PACER revenue was she noted was PACER fees could continue to 1997. Users were charged 7 cents per page “used only to fund public access initiatives.” of information accessed through the federal be used to subsidize electronic court filing. judiciary Internet website. Senator Lieberman was unsatisfied. In However, she did rule PACER fees had im- March 2010 he wrote a letter to the Senate properly been used to fund four programs: a In 2001 a cap was adopted to charge for a Appropriations Committee questioning State of Mississippi study to provide public maximum of 30 pages for any document whether PACER revenue was being used electronic access to state documents, crime accessed via the Internet. for programs “unrelated to providing public victim notification; providing flat screens for access via PACER and against the require- jurors; and most expenditures for enhancing In 2002 the Senate Governmental Affairs ment of the E-Government Act.” courtroom technology. Committee issued a report encouraging “the Judge Huvelle’s ruling was a blow to PACER Judicial Conference to move from a fee Senator Lieberman’s concerns were not on- users paying fees that are double or more structure in which electronic docketing sys- ly ignored, but the Judicial Conference than the cost of operating the PACER system. tems are supported primarily by user fees to thumbed its nose at him. a fee structure in which this information is Unless her ruling is overturned on appeal, freely available to the greatest extent possi- In 2011, the Judicial Conference acknowl- PACER will continue to be the cash cow it ble.” The report noted that “Pursuant to edged that PACER revenue was exceeding has been for decades funding programs unre- existing law, users of PACER are charged the money spent on all programs (including lated to accessing federal court records. fees that are higher than the marginal cost those Lieberman questioned the legality of). Judge Huvelle’s opinion inNational Veter- of disseminating the information.” With PACER taking in more than it was ans Legal Services Program et al., v. United spending it would logically be expected States Of America, Civil Action No. 16-745 The E-Government Act of 2002 amended user fees would be reduced. That isn’t what (ESH) (USDC Dist of Col.) (Memorandum the language authorizing the charging of happened. The Judicial Conference “again Opinion, 3-31-2018) can be read at, PACER fees from “shall hereafter”, with amended the PACER fee schedule, raising http://www.courthousenews.com/wp- “may, only to the extent necessary.” The the per-page cost from 8 to 10 cents.”[1] content/uploads/2018/04/veterans-pacer.pdf. change in language paved the way for a reduction in PACER fees ... but it didn’t From 2010 to 2016 PACER’s revenue was NOTE: [1] The JC gratuitously increased the fee happen. Instead, in 2004 it was increased almost a billion dollars: with $145.4 million waiver amount from $10 to $15 per quarter. A user had to rack up $15 in fees in a quarter before they were from 7 cents per page to 8 cents per page. in 2016. charged -- for all the fees, including the initial $15. PACER fees resulted in a 2006 surplus of PACER lawsuit Sources: PACER Fees Shouldn’t Fund Most Court Tech, Judge $32.2 million The judiciary decided to find On April 21, 2016, three nonprofit organi- Rules, By Britain Eakin, Courthousenews.com, April 2, 2018 new ways to spend the surplus instead of zations: National Veterans Legal Services National Veterans Legal Services Program et al., v. United reducing fees. Program; National Consumer Law Center; States Of America, Civil Action No. 16-745 (ESH) (USDC Dist of Col.) (Memorandum Opinion, 3-31-2018) and Alliance for Justice, on behalf of them-

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 19 ISSUE 75 - SPRING 2019 Menace To The Innocent: out every case possible. Insubstantial Expert Evi- Consequently, the legal system is structured so that the overwhelming majority of con- dence Endangers Inno- victions that rely on the soggy foundation of suspect expert evidence – which may in fact cent People Accused Of A be no more stable than quicksand – fall Crime through the cracks into the black hole of a case closed by a plea bargain. By Hans Sherrer There is relatively little will-power by those enace To The Innocent: Insubstantial within the system to correct this state of M Expert Evidence Endangers Innocent affairs. The four primary actors in the legal People Accused Of A Crime is now avail- system’s operation – judges, prosecutors, able on Amazon.com at, police, and defense lawyers – are integral www.tinyurl.com/yc5u3kqn . parts of the assembly line that generates the steady flow of convictions the system de- Menace To The Innocent was written by pends on for its smooth functioning. The Hans Sherrer, Justice Denied’s editor and increasing reliance on expert evidence to publisher. It is published by The Justice secure convictions assists to grease the Institute. wheels of that system.

The following is an excerpt from the The depth of that reliance is demonstrated book’s INTRODUCTION: by how those primary actors exhibit a quasi form of Stockholm Syndrome by their psy- We live in an age of magic as a way of life. chological alliance with the use of expert 6. Fingerprint Analysis: Voodoo Palmed At least that is how a person who lived 200 evidence that often is insubstantial and un- Off As Science years ago could be expected to think of the dermines the credibility of the system they 7. DNA Probability Estimates Elevated By modern world. In actually, we live in an age are a part of. That psychological state can be Smoke And Mirrors To Certainty of science that to the uninitiated certainly called “Expert Syndrome.” The way experts 8. False Positives – DNA Testings Dark can seem magical. Almost every man-made are viewed and uncritically relied on masks Side process we have today that wasn’t available that their contribution to a case is often no 9. A Random Match Probability And False 200 years ago is the result of applying sci- more reliable than the incantation of a witch Positive Probability Are Divergent entific principles to varying degrees to doctor is to cure an illness or end a drought. 10. Wrongful Convictions Are Cemented achieve the end result. ************** with False Positive DNA Testimony 11. Bite Marks, Hair Analysis, And Other The quest to solve crimes has not been “Menace To the Innocent” goes far beyond Skeptical Forms Of Evidence immune to the application of science. How- identifying the magnitude of the problem: 12. Ill-Founded Expert Testimony Is A ever, this book demonstrates it is not unusu- In its last chapters it proscribes no-nonsense Godsend To Prosecutors al for science to be misapplied, disregarded, solutions to rectify the problem of innocent 13. Minimal Crime Lab Performance Stan- or relied on in name only to “solve” a crime people being ravaged by prosecutors who dards Breed Slothful Conduct and close a case by identifying a person as rely on bogus expert evidence to secure 14. The Subjectivity Of Forensic Evidence the culprit. The result is a crime solved by their conviction. One of those solutions is to 15. Prosecutor’s Fallacy Skews Consider- the magical masquerading as science. This close the FBI crime lab and all local, county, ing A Defendant’s Possible Innocence situation exists because there to no reliable and state crime labs because they are inher- 16. Are Prosecution Experts Criminals? mechanism to ensure the system isn’t ently, and irredeemably biased toward the 17. Double-Blind Testing Can Detect Inac- gamed by the prosecution’s reliance on ex- prosecution. Not incidentally, those crime curate Crime Lab Tests pert “scientific” evidence that in reality is labs operate in a manner that would be 18. Methodic Doubt Can Overcome Patho- no more reliable than a confession to being unacceptable for a university science lab ... logical Science In The Courtroom a witch by a person who simply wants to much less a privately operated commercial 19. Crime Labs Are A 20th Century Inven- stop being dunked into a pond. laboratory. tion That Contribute To Shortshrifting Reasonable Doubt There is generally no scrutiny of crimes The Table of Contents follows: 20. Conclusion “solved” through expert evidence because Author’s Note Works Cited of the resources necessary to do so, and over Introduction Index 95% of convictions in the U.S. are by a 1. The Innocent Are Endangered By Insub- Endnotes guilty plea that precludes any critical exam- stantial Expert Evidence ination of the prosecution’s supposedly ex- 2. Shoddy Work Is The Norm For Crime ********* pert evidence. The overwhelming majority Labs of defendants in this country have limited – 3. Roll Call Of Suspect Crime Labs And Menace To The Innocent can be or- if non-existent – financial resources, and Expert Prosecution Witnesses dered from Amazon.com at, public defenders who handle the over- 4. Doctored Tests And Testimony Under- www.tinyurl.com/yc5u3kqn . whelming majority of criminal cases have mine The Presumption Of Innocence limited budgets, and case load pressure to 5. Destruction of Potentially Exonerating take the path of least resistance and plead Evidence OK With The Supreme Court

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 20 ISSUE 75 - SPRING 2019 rave reviews on Amazon.com, er’s taste buds as well as spark High Fence Foodie with 75% of reviewers giving their imagination to explore Cookbook Now Available! it 4 or 5 stars! Some of the unlimited creations of their comments are: own! She encourages substitu- igh Fence Foodie is a new cookbook by tions to a reader’s individual “A lot of the recipes are tastes or availability of ingre- H Texas prisoner Celeste Johnson that was very imaginative, and fun recently published by The Justice Institute. dients. She is confident users to make. Well worth the of her recipes will enjoy creat- money.” J.C. High Fence Foodie has more than two hun- ing a home-felt comfort dred easy to prepare recipes for meals, “I loved the food and was whether behind the High soups, snacks, desserts, and beverages. inspired by the can-do atti- Fence, or at Your House! These recipes can be made from basic items tude of the ladies involved a prisoner can purchase from their unit’s with this project.” Dan Celeste Johnson does not fi- commissary, or people on the outside can “My daughter got this for nancially profit from sales of purchase from a convenience or grocery her husband for father’s day. High Fence Foodie. All prof- store. They are written by Celeste Johnson, He loves using it!!” J.H. its from the book’s sale are donated to The Justice Institute Justice a woman imprisoned in Texas who loves to “I am a college student making a limited cook and try out new combinations of the Denied to contribute to its work on behalf of income and these recipes are great and wrongly convicted persons. simple food ingredients available to her. fulfilling for people like me who don’thave a ton of $ to spend on grocer- $14.95 High Fence Foodie’s all new recipes are a ies.” Alicia follow-up to the more than 200 recipes in 116 pages, softcover From The Big House To Your House that “I sent this to my daughter. She absolutely was written by Celeste Johnson and five loves this little cookbook!” D. G. Order from Amazon.com at, fellow prisoners at the Mountain View Unit, http://tinyurl.com/y8lgylwo a woman’s prison in Gatesville, Texas. High Fence Foodie continues the high stan- dard of From The Big House To Your House! From The Big House To Your House received Celeste hopes her recipes will ignite a read-

her possible negative reaction if he Phantom Spies, said something incriminating in her Phantom Justice presence, and he didn’t like her.

hantom Spies, Phantom Justice by Although Ms. Moskowitz’s case had PMiriam Moskowitz was published in nothing directly to do with the Rosenberg July 2012 by Justice Denied/The Justice trial that took place four months after her Institute. The book is Ms. Moskowitz’ au- trial, they were tied together because Mr. tobiography that explains how it came to Gold was a key witness against the be that in 1950 she was falsely accused, Rosenbergs and the same prosecutors indicted and convicted of obstruction of and judge were involved in both trials. justice in a grand jury that was investigat- ing Soviet espionage. The books subtitle Phantom Spies, Phantom Justice is a is How I Survived McCarthyism And My compelling story of how an innocent 34- Prosecution That Was the Rehearsal For year-old woman found herself being pub- The Rosenberg Trial. The Afterword writ- licly branded as an enemy of the United ten by Justice Denied’s editor and pub- States. Ms. Moskowitz is now 96 and still lisher Hans Sherrer states in part: seeking the justice of having her convic- tion overturned, although she can’t get Miriam Moskowitz is an innocent per- back the time she spent incarcerated son who was caught up in the whirl- because of her two-year prison sentence. wind of anti-communist hysteria that prevailed in this country at the time of partner, Abraham Brothman, alleg- $19.95 her trial in 1950. We know that be- edly discussed providing false testi- cause of FBI documents she obtained mony to a grand jury investigating 302 pages, softcover through the Freedom of Information possible Soviet espionage. She did Order from Amazon.com at, Act decades after her conviction for not testify before that grand jury. conspiring to obstruct justice during a The FBI documents Ms. Moskowitz http://tinyurl.com/ycodcbor grand jury investigation. obtained are proof that prior to her The prosecution’s case depended trial Mr. Gold told the FBI she was on the trial testimony of FBI infor- not present during that alleged con- mant Harry Gold. He testified that in versation. Furthermore, Mr. Gold 1947 she observed a conversation told the FBI he didn’t speak candidly during which he and her business in front of Ms. Moskowitz because of

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 21 ISSUE 75 - SPRING 2019 FROM THE BIG dorm housing only prisoners with a sen- tence in excess of 50 years. While there HOUSE TO YOUR isn’t much freedom to be found when incarcerated, using the commissary to HOUSE cook what YOU want offers a wonderful Cooking in prison avenue for creativity and enjoyment! They hope these recipes will ignite your With taste buds as well as spark your imagina- Ceyma Bina, Tina Cornelius, tion to explore unlimited creations of your Barbara Holder, Celeste Johnson, own! They encourage you to make substi- Trenda Kemmerer, and Louanne Larson tutions to your individual tastes and/or availability of ingredients. They are con- rom The Big House To Your House has fident you will enjoy the liberty found in Ftwo hundred easy to prepare recipes creating a home-felt comfort whether for meals, snacks and desserts. Written you are in the Big House, or Your House! by six women imprisoned in Texas, the recipes can be made from basic items a $14.95 prisoner can purchase from their commis- 132 pages, softcover sary, or people on the outside can pur- chase from a convenience or grocery store. Order from Amazon.com at, http://tinyurl.com/yd5dmeea From The Big House To Your House is the result of the cooking experiences of six women while confined at the Mountain View Unit, a woman’s prison in Gatesville, Texas. They met and bonded in the G-3

Published by Justice Denied Convicting the Innocent (Chap- ter 4) has not lost its luster as one of the most insightful Edwin M. Borchard – books published on the topic of Convicting The Innocent wrongful convictions. Seventy- one years after its publication dwin M. Borchard – Convicting The Innocent and State the multitude of causes underly- EIndemnity For Errors Of Criminal Justice has been pub- ing the cases of injustice it de- lished by The Justice Institute/Justice Denied. tails not only continue to plague the legal system in the United Yale University Law School Professor Edwin Borchard was an States, but they are arguably early pioneer in exposing the causes of wrongful convictions more prevalent today than when and the inadequacy of compensation for exonerated persons in the book was published, with the United States. So it is important that it be remembered his the exception of confessions ex- works laid the foundation for today’s advocates for wrongly tracted by physical violence. convicted persons, and the encouragement of public policies that may prevent wrongful convictions and ensure adequate Compensating exonerated per- indemnification when they occur. sons is as topical a subject as it was one hundred years after This 358-page book includes Borchard’s key works European Borchard’s article about indem- Systems Of State Indemnity For Errors of Criminal Justice, and nifying wrongly convicted persons. Borchard article (Chapter 3) Convicting The Innocent: Sixty-Five Actual Errors of Criminal makes it clear that many European countries were more ad- Justice. The Table of Contents is: vanced in providing indemnification 100 years and more ago, than is the norm in the United States in 2015. Introduction Chapter 1. Edwin M. Borchard: Pioneer In Analyzing Wrongful $16.95 Convictions And Advocate For Compensation Chapter 2. Edwin Borchard, Law Expert, Dead 358 pages, softcover Chapter 3. European Systems Of State Indemnity For Errors Of Order from Amazon.com at, Criminal Justice http://tinyurl.com/ycjlhdub Chapter 4. Convicting The Innocent: Sixty-Five Actual Errors Of Criminal Justice

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 22 ISSUE 75 - SPRING 2019 Justice:Denied Disclaimer Dehumanization Is Justice Denied’s Mobile De- Justice:Denied provides a forum for people who can make a credible claim of innocence, but who are not yet exoner- vice Homepage Is Online! ated, to publicize their plight. Justice:Denied strives to Not An Option provide sufficient information so that the reader can make ustice Denied’s mobile device homepage a general assessment about a person’s claim of innocence. An Inquiry Into Law However unless specifically stated, Justice: Denied does Enforcement and Prison Behavior Jis online. The mobile friendly homepage not take a position concerning a person’s claim of innocence. has the narrow width recommended for By Hans Sherrer smartphones and other mobile devices. This compilation of essays and reviews Justice Denied’s homepage detects when it explains that the dehumanization charac- is accessed by a mobile device, and the user Justice Denied Back Issues teristic of institutionalized law enforce- is automatically redirected to the mobile Email request for information about ment processes is as predictable as it is homepage. There is also a link to the mobile availability of Justice Denied Issues inevitable. The beginning point of think- homepage in the upper right-hand corner of 30 to 43 in hardcopy to: ing about alternatives to the dehumaniz- Justice Denied’s homepage. ing aspects of law enforcement systems is The mobile friendly homepage was created [email protected] understanding their causes. The essays because more than half of all visitors to JD’s include: website now use a hand-held device. The · Quiet Rage: The Stanford Prison Experi- following shows the growth of hand-held ment devices used to access justicedenied.org. Prison Legal News is a monthly magazine reporting · Obedience To Authority Is Endemic Year Desktop Mobile Tablet on prisoner rights and prison · Dehumanization Paves The Path To 2008 100% conditions of confinement is- Mistreatment 2009 99.7% 0.3% sues. Send $3 for sample issue Softcover. $12 2010 97% 3% or request an info packet. Buy from Amazon.com at, 2011 92% 8% Write: PLN, PO Box http://tinyurl.com/yb7hd4v8 2012 82% 13% 5% 1151,1013 Lucerne Ave., 2013 72% 19% 9% Lake Worth, FL 33460. 2014 61% 28% 11% 2015 51% 37% 12% 2016 50% 39% 11% 2017 49% 43% 8% 2018 47% 45% 8% 2019 45% 47% 8% Justice Denied’s mobile device homepage is www.m.justicedenied.org.

even though the Las Vegas Metropolitan 3rd Revised and Updated Police Department and the Clark County Edition of “Kirstin Blaise District Attorney’s Office obtained evidence Lobato’s Unreasonable three days after her arrest she is innocent. Conviction” Online The 3rd revised edition has 57 pages of new information, that includes: he third revised and updated edition of * An updated Timeline of Ms. Lobato’s TKirstin Blaise Lobato’s Unreasonable case from 2001 to the present, that be- Conviction — Possibility of Guilt Replaces gins on p. 10. Proof Beyond A Reasonable Doubt is avail- * Six new sub-chapters in the Appendix able in PDF format to be read or download- that begin on page 150. Those include a ed at no charge for personal use from Power Point presentation of Ms. Lobato’s Justice Denied’s website.* case and the new evidence in her habeas corpus petition currently under review by The book details how Kirstin Lobato has the Nevada Supreme Court. Ms. Lobato’s twice been convicted of a July 8, 2001 Las petition includes new evidence her jury Vegas homicide when the prosecution didn't hear by more than two dozen ex- doesn’t deny it has no physical, forensic, pert, alibi, and third-party culprit witness- eyewitness, confession, informant, surveil- es that supports her actual innocence. lance video or documentary evidence she Click here to download at no charge was in Las Vegas at any time on the day of Kirstin Blaise Lobato’s Unreasonable Con- The 232-page book written by Justice De- the crime. The prosecution also concedes viction in PDF format from nied’s editor and publisher Hans Sherrer is she was at her home 165 miles from Las www.justicedenied.org/kbl.htm. supported by 427 source endnotes. In docu- Vegas at the time new forensic entomology Justice Denied’s webpage with information ments filed in the Nevada Supreme Court, and forensic pathology evidence conclusive- about the Kirstin Lobato case is the Clark County District Attorney’s Office ly proves the man died between 8 p.m. and www.justicedenied.org/kbl.htm. and the State of Nevada don’t assert there is 10 p.m. The book also details that in 2001 a single factual error in the book. * The book can be printed at no charge for the 18-year-old Ms. Lobato was prosecuted non-commercial use only.

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 23 ISSUE 75 - SPRING 2019 . In Winshipre Juries Juries were first in known known to be instructed to acquit constitutionally required in 1970 unless the prosecution proved the defen- recognized recognized by the U.S. Supreme Court as dant’s dant’s guilt beyond a “reasonable doubt” in the mid- the in court) criminal (London’s Bailey Old 1780s. “Reasonable doubt” was not used as standard a of proof in the U.S. until Proof of guilt beyond the a “reasonable doubt” was 1800s. Justice DeniedJustice P.O. Box 66291 Seattle, WA 98166 VideoShop includes dozens JD’s there are links to wrongfulconvictionto linksare there www.justicedenied.org Visit JusticeVisit Denied website online BookShop includes almost 100 wrongful of wrongful conviction movies and documentaries. conviction books, and Read back issues, back Read websites and JD’s Blog and Facebook pages, and other information related to wrongful convictions is available. JD’s he scales of justice are tipped against inno- cent people all across the country - from ustice:Denied provides a public voice for inno- for voice public a provides ustice:Denied cent people reality. by victimized tragic that T Maineand to Hawaii from to Alaska Florida. J Editor & Publisher Justice Denied’s Amazon.com on page 20 See pg.See 3 PeopleAccused OfACrime MenaceTheInnocent: To Boxer Jack Johnson Pardoned Read about the book with order information from By Hans Sherrer, InsubstantialExpert Evidence Endangers Innocent the the U.S. In 1920. Jack Jack Johnson was granted a Presidential Par- JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 24 don 105 years after he was convicted of vio- a across going for Act Mann federal the lating state line with his white girlfriend. Johnson Champi- Boxing Heavyweight World the was ISSUEon from 1908 to 1915. He fled the U.S. after his conviction in 1913 to avoid serving federal prison 75 his sentence of 1 year and 1 day. returningto after sentence Johnsonhis served - SPRING 2019