Florida Innocence Project's Seth Miller Discusses James Bain Exoneration

Last Thursday morning Christmas came early for James (Jamie) Bain when a judge in Polk County vacated his conviction and dropped all charges against him. Jamie had been in prison for 35 years for a crime that DNA testing proved he didn’t commit. He was only 19 years old when he went into prison and today he walks out a 54-year-old man.

Jamie submitted handwritten motions four times seeking DNA testing, but he was denied each time. He was denied the fifth time, too, but an appeals court overturned that denial. The Innocence Project of Florida (IPF) stepped in to assist Mr. Bain, and he was finally able to get the DNA testing he’d wanted for so many years, and which ultimately proved his innocence.

Jamie Bain is looking forward to seeing his mother in Tampa, and spending the holidays as a free man with his family. Yes, Virginia, there is a Santa Claus.

The petition to Florida Supreme Court for a Florida Innocence Commission

The petition to Florida Supreme Court for a Florida Innocence Commission

http://www.floridasupremecourt.org/pub_info/documents/petitions/Filed_12-11-2009_Innocence_Commission_Petition.pdf

NORTH CAROLINA ACTUAL INNOCENCE COMMISSION

NORTH CAROLINA ACTUAL INNOCENCE COMMISSION -MISSION STATEMENT, OBJECTIVES, AND PROCEDURES

I. Mission Statement

The North Carolina Actual Innocence Commission is established to provide a forum for education and dialog among prosecutors, defense attorneys, judges, law enforcement personnel, legal scholars, legislative representatives, and victim advocates regarding the common causes of wrongful conviction of the innocent and to develop potential procedures to decrease the possibility of conviction of the innocent in North Carolina, thereby increasing conviction of the guilty.

Members of the Commission have varying viewpoints with regard to capital punishment and the necessity for a moratorium in North Carolina. Members unanimously agree that the Commission will not take a position on these issues and that individual Commission members will not represent their personal viewpoints on these issues as being shared by other Commission members or the Commission as a whole.

II. Problem Summary

Recent developments in DNA testing have confirmed the long standing fear that, despite the superior nature of our justice system, there still exists the possibility that individuals can be convicted of crimes they did not commit. Exoneration cases in North Carolina include Ronald Cotton, Leslie Jean, Leo Waters all of whom were exonerated by DNA; and Terrence Garner, Charles Munsey, and Tim Hennis, whose exonerations were not based on DNA. Although it is believed that the risk of conviction of an innocent person is small in North Carolina, the cause of even one innocent conviction should be identified and corrected if possible. Wrongful conviction of the innocent not only destroys the lives of those convicted and their families; it allows the actual perpetrator of the crime to go unpunished and to be free to potentially commit additional crimes. Additionally, injustices negatively impact public trust and confidence in the justice system.

III. COMMISSION BACKGROUND

On November 22, 2002, North Carolina Chief Justice \. Beverly Lake invited key representatives from the criminal justice system and legal academic community to meet with him to discuss the issue of the wrongful conviction of the innocent. The impetuses for the meeting were the recent exonerations in North Carolina and the Chief Justice's continued concern regarding the general public's negative perceptions and decreasing confidence in the justice system.

Discussion during the meeting on November 22nd was candid and productive, with agreement among representatives that causation issues associated with conviction of the innocent need to be understood by all members of the enforcement and justice system and that corrective options should be identified and actions implemented where possible. The Chief Justice thereby made the decision that a working study commission should be established.

IV. OBJECTIVES

www.lnnocenceproject.org/docs/NCJnnocence_Commission_Mlssion.html



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· No~c(rolina Actual Innocence Commission -Mission 12/11/0911:49 AM

" The primary objective of the North Carolina Actual Innocence Commission is to make recommendations which reduce or eliminate the possibility of the wrongful conviction of an innocent person. Through its work, the Commission hopes to raise awareness of the issues surrounding wrongful convictions. It is anticipated that accomplishment of this objective will increase the conviction of the guilty, positively impact public trust and confidence in the State's justice system, and decrease the overall cost of the prosecution, trial and appeal processes.

Specific Commission objectives are:

1) To identify the most common causations of conviction of the innocent, both nationally and in North Carolina.

2) To provide education to members regarding each type of causation.

3) To provide a forum for open and productive dialog between Commission members regarding each type of causation.

4) To identify current North Carolina procedures implicated by each type of causation.

5) To identify, through research, experts, and discussion, potential solutions in the form of

procedural or process changes or educational opportunities for elimination of each type of

causation.

6) To consider potential implementation plans, cost implications, and the impact on conviction of the guilty for each potential solution.

7) To issue interim reports recommending solutions for each causation issue identified, including recommended implementation plans, cost implications, and potential impact on the conviction of the guilty.

V. Rules of Procedure

(a) The Commission will meet once every six to eight weeks.

(b) The Commission shall meet at such time and place as determined by the chairman announced at least one month in advance of meetings with notice to each member.

(c) To the extent possible meetings will take place during lunch time or after business hours to minimize disruption to work routines.

(d) At all meetings, fifteen shall constitute a quorum for the transaction of business. Voting may be in person, by proxy, by letter or by telephone. Any matter or proposition discussed shall not be binding upon the Commission without the affirmative vote of at least half of the number of the current membership of the Commission. Additionally, a representative from prosecution, defense, law enforcement, judiciary, and victim assistance network is required to be present at any meeting where a majority vote is reported.

(e) Although the Commission will benefit from the expertise of its membership, it will be necessary to provide the Commission members with research materials as topics are reached. A research analyst will conduct research and accumulate and distribute materials; however, members will be encouraged to discuss issues with the constituencies and come to meetings http://www.lnnocenceproJect.org/docs/NCJnnocence_Commisslon_Misslon.html

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North Carolina Actual Innocence Commission -Mission 12/11/0911:49 AM

prepared as representatives to discuss the viewpoints of members of their area of expertise. Additionally, experts from North Carolina and other states will be invited to speak to the Commission as topics are reached.

(f) Studies and surveys of North Carolina practices will likely be conducted as part of the Commission's work.

(g) Topics to be studied by the Commission may include eyewitness identification procedures, DNA evidence/testing, false confessions, discovery and disclosure, informant/accomplice testimony, law enforcement and attorney investigation procedures, rules of professional conduct and their interplay with innocence, and the post conviction review of claims of actual innocence. A concrete topic list will not be established, as it is antiCipated that issues will be raised and considered throughout the Commission's work.

(h) Local law school students will be recruited to assist with research for the Commission. Additional research may be contracted out.

(i) The Commission may look at individual cases where innocence has already been proven for the purpose of identifying causations of those convictions. However, unproven innocence claims will not be reviewed.

G) Written minutes will be kept of all meetings.

(k) All research will be organized and consolidated for future reference.

(I) The Commission will issue interim reports outlining its findings and recommendations as the study of each topic area is completed. Additionally, the Commission will issue a final report outlining all findings and recommendations.

(m) The Commission will hereafter adopt any additional rules as are necessary to carry out its objectives.

VI. Commission Composition

The Commission is a "working" commission of no more than thirty members, invited to participate at the

discretion of the Chief Justice. Individuals who are invited to participate will be reminded of the substantial

commitment of time and energy that may be requested of them.

Additional expertise and constituent representation may be provided by organizing the Commission into task

forces, with persons in addition to Commission members being asked to serve on each task force. However,

the majority of the Commission's work will be done as a whole and not as task forces.

Initial Commission members were invited to voluntarily participate in the Commission's work based upon

individual competence, experience, and anticipated commitment. Invitations were further based on the need

for the Commission to be diversely representative of the criminal justice system.

Although members are invited to participate at the discretion of the chair, representation must include at least one member from the following constituencies: prosecution, defense, law enforcement, judiciary, and victim assistance network. The specific number of representatives from each constituency will not be established and may vary over the life of the Commission at the discretion of the chair.

The initial representation of the Commission is made up of three judicial representatives, two representatives

http://www.innocenceproject.org/docs/NCJnnocence_Commission_Mission.html

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\ Nortffocirolina Actual Innocence Commission -Mission 12/11/0911:49 AM

from the Governor's office, three defense attorneys, six law enforcement representatives, five prosecution representatives, three law professors, one victim assistance representative, one journalism professor, and two general interest representatives. Following is a list of the initial roster of Commission participants.

The Honorable Bryan E. Beatty, Secretary of Crime Control and Public Safety Robert Brown, Jr., Public Defender, Durham County Professor James Coleman, Duke University Law School The Honorable Roy Cooper, North Carolina Attorney General Chief Michael R. Gauldin, Burlington Police Department The Honorable Donald Harrison, Sheriff, Wake County Malcolm R. Hunter Jr., Executive Director, N.C. Office of Indigent Defense Services The Honorable Robert F. Johnson, District Attorney, Alamance County The Honorable William Kenerly, District Attorney, Rowan County The Honorable I. Beverly Lake, Jr., N.C. Supreme Court Chief Justice Chris Mumma, Legal Counsel, N.C. Center on Actual Innocence Associate Dean Theresa Newman, Duke University Law School The Honorable Robert Orr, N.C. Supreme Court Justice Robin Pendergraft, Director, N.C. State Bureau of Investigation Donna Pygott, N.C. Victims' Assistance Network Professor Richard Rosen, UNC School of Law The Honorable Thomas W. Ross, Executive Director, Z. Smith Reynolds Foundation Chief Darrel Stephens, Charlotte-Mecklenburg Police Department The Honorable Donald Stephens, Senior Resident Superior Court Judge, Wake County Dick Taylor, Executive Director, Academy of Trial Lawyers Thomas Walker, N.C. Assistant Attorney General Pete Weitzel, Executive Director, N.C. Center on Actual Innocence The Honorable Colon C. Willoughby, Jr., District Attorney, Wake County Nina Wright, Deputy Chief, Charlotte-Mecklenburg Police Department Reubin Young, Deputy Legal Counsel, N.C. Governor's Office

These individuals offer differing perspectives and expertise that will enable the Commission to meets its overall mission and specific objectives.

Senate and House representatives will be added to the Commission at a later date. Additionally, Commission members may suggest the addition or substitution of members as the work of the Commission progresses and/or if a current member is unable to participate on an ongoing basis.

It is anticipated that the work of the Commission will take approximately two years. With the exception of the chairman, members of the Commission serve on a voluntary basis and are invited to serve for two years. However, Commission members may provide for termination of membership of a member under appropriate circumstances and upon approval of the Chief Justice as chair.

VII. Officers

The officers of the Commission shall be a chairman, an executive director and/or vice chairman, a secretary and a treasurer. The Commission's chair will be the Chief Justice or his designee. The executive director and/or vice chairman, the secretary and the treasurer shall be elected by the Commission on recommendation of the chairman.

The executive director will be responsible for supervisory and administrative responsibilities; performing and compiling research, data and reports; identifying and coordinating expert testimony where appropriate; and assuming an oversight role by developing expertise in, keeping abreast of, and contributing to the substantive

http://www.innocenceproject.org/docs/NCJnnocence_Commission_Mlssion.html

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• North Carolina Actual Innocence Commission -Mission 12/11/0911:49 AM

f

work of the Commission and task forces. Research associates, through law school externships and volunteer student work, as well as contractor services, will assist the executive director with these tasks.

VIII. Funding

A grant application for $37,250 annually has been submitted to the Governor's Crime Commission. Funds will be paid through and managed by the AOC, as a receipt-supported activity. With the assistance of the AOC's grants administrator, Commission staff will process requisitions and other expense documentation. Grant funding will be used to cover copying, mailing, meeting expenses, expert travel expenses and consulting fees, and contractor services for excessive administrative or research needs.

Commission members will be donating their time, energy and expertise. Expenses for travel by Commission members will be paid through grant funds.

IX. Effective Date

The effective date of the organization of the NC Actual Innocence Commission shall be deemed to be February 14,2003 as of the time of the initial meeting of the full body of the Commission as reflected by the minutes.

http://www.innocenceproject.org/docs/NC_lnnocence_Commission_Mission.html



http://www.lnnocenceproject.org/docs/NCJnnocence_Commlsslon_Misslon.html

Video - Jamie Bain and Barry Scheck

Klick on the link to watch the video.

JEFFREY BROWN: James Bain is a free man tonight. Yesterday, he was released from a Florida prison, where he had spent 35 years for a crime he didn't commit. A court-mandated DNA test proved Bain was wrongly convicted of sexual assault in 1974.


JAMES BAIN: I am going to see my mom, the one I just got off the phone to. That's the most important thing in my life at this moment, besides God. The one thing I have to say about this DNA, ladies and gentleman, it's going to do one of the two. And I tell these gentlemen in prison that have this type of case, it's going to do one of the two, free you or lock you.



JEFFREY BROWN: Bain's release was in fact the third of its kind just this week, all the result of work by the Innocence Project based at the Benjamin Cardozo School of Law at Yeshiva University.



According to the Project, since 1989, there have been 248 post-conviction exonerations based on DNA evidence. Seventeen of those exonerated served time on death row. Twenty-seven states, the federal government and the District of Columbia, compensate individuals who were wrongfully incarcerated.



Joining me for an update is Barry Scheck, co-founder and co-director of the Innocence Project.



Well, Mr. Scheck, James Bain was held longer than anyone now exonerated by DNA testing. But is his case unusual in any other way?



BARRY SCHECK, co-director, Innocence Project: No. As a matter of fact, what's remarkable about his case is that it's a single-perpetrator sexual assault case with a mistaken identification. And the single greatest cause of the conviction of the innocent has been eyewitness misidentification.



JEFFREY BROWN: Eyewitness, in most of the cases, you still find that that's what lead to the wrongful conviction?



BARRY SCHECK: Yes.



I mean, we know what the causes of wrongful convictions are, eyewitness misidentification, false confessions, invalid or improper forensic science, prosecutorial police misconduct, or inadequate lawyering, jailhouse snitches. Those are the causes, but the one that has caused more miscarriages of justice is eyewitness identification.



And we now know, after 30 years of really solid social science research, how to minimize that with best practices that can reduce the number of misidentifications, without reducing the number of correct ones.



JEFFREY BROWN: Tell us a little bit more about the DNA evidence. What is it, and how often is it available so many years later?



BARRY SCHECK: Well, the trick, frankly, is finding the evidence.



And, here, this case was 1974. And the problem -- Mr. Bain was asking for testing for quite a long time, but the problem always is finding the evidence. In Dallas, Texas, where there have been more DNA exonerations than any city in the country, the main reason for it is that they can find the evidence.



It's also lead to the creation of a wonderful conviction integrity unit in the Dallas District Attorney's Office that really assists the Innocence Projects in trying to get people out. But it's finding the evidence that's the biggest problem.



JEFFREY BROWN: Now, you said Mr. Bain was trying to get people to look at it, and that leads to an obvious question. How easy or difficult is it to get a court to take a new look at DNA evidence?



BARRY SCHECK: Well, when Mr. Bain started doing this, it was very difficult. We had a lot of trouble in Florida getting courts to allow DNA testing. We had one case that went up and down through the system, Wilton Dedge.



Finally, Florida has created a post-conviction DNA statute. And now 48 states have such statutes on the books. And the federal government has one as well. But, when we started this work, there were no states that had post-conviction DNA statutes. And, in fact, trying to get into court was very difficult, because there were statutes of limitations, where courts wouldn't even look at newly discovered evidence, even evidence as powerful as DNA testing.



JEFFREY BROWN: Now, I wonder, how often is the true perpetrator found through DNA testing? How often does that occur?



BARRY SCHECK: A lot.



Right now, there are 105 individuals who have been identified as the real assailants in these cases, out of the 248 post-conviction DNA exonerations. And what's really important to emphasize here is that DNA is only present in about 10 percent of cases, in other words, biology that can be tested, that can be determinative of who really committed the crime.



So, what about the other 90 percent of the cases where there is eyewitness misidentification and false confessions and bad lawyering and misconduct and invalid or improper forensic science? That is the challenge.



We really need to learn from this incredible set of cases lessons which can help enhance the capability of law enforcement to catch the real perpetrator, at the same time that we protect the innocent. And that's the real meaning of these cases.



JEFFREY BROWN: Well, there was a congressional hearing this week where -- about the backlog of cases where there is evidence still awaiting testing. This was specifically, I think, mostly about rape cases.



How big a problem is that, just not only to find the evidence, but then that it's sitting around waiting for somebody to get to it?



BARRY SCHECK: Well, that's a very serious problem. And it's confounding, because -- you know, take sexual assault cases. And here in New York City, we had to work with the prosecutors off the police department to get them to look at all these unsolved rape cases that were just piling up.



So, it's absolutely essential. As you wait to do DNA testing on an unsolved case, the real assailant can go out there and commit a lot of rapes and murders, because, very often, these are serial offenders. And when the cases are in backlog, you know, you can find that the same person committed more than one crime if you begin to test them.



So, so much could be done to improve the criminal justice system if, within seven to 10 days after the commission of a serious crime, you had DNA testing. They have had that in the United Kingdom for a long time. And it has significantly improved the clearance rate in cases.



JEFFREY BROWN: And just in our last minute, finally, I want to ask you about the compensation system. I understand that Florida just last year passed a law that someone in this situation would be paid I think it's $50,000 a year per year served. That will help in the case of Mr. Bain. But I gather it's a rather haphazard system around the country?



BARRY SCHECK: Yes. And there are laws in some jurisdictions, not in others. There are restrictions that shouldn't be there.



And, frankly, it's not enough money. You know, just think about it. When these cases get to trial and federal civil rights actions, when the very small needle can be threaded by a claimant, jurors routinely give them a million dollars a year, as well they should, given what, really, somebody is entitled to who has been incarcerated in a maximum security prison as an innocent person for even a year.



JEFFREY BROWN: All right, Barry Scheck of the Innocence Project, thank you very much.



BARRY SCHECK: Thank you.



Source: www.pbs.org

Editorial: Make DNA testing routine

Make-DNA-testing-routine


Editorial: Make DNA testing routine
Editorial • December 19, 2009

http://www.news-press.com/article/20091219/OPINION/91218053/1015/opinion/Editorial--Make-DNA-testing-routine

Wherever you stand on the death penalty you have to believe that the state should be as sure as possible that people on death row are guilty.


That means DNA testing should be routine whenever it might establish guilt or innocence.


James Bain, convicted and sentenced to death for the 1974 rape of a 9-year-old Polk County boy, was turned down four times for DNA testing to see if semen found on the boy’s shorts could have been Bain’s.


Finally, an appeals court overturned the denial of his fifth appeal. Thursday, Bain was released after serving 35 years for a crime he did not commit. The victim had identified him as the attacker, but DNA testing showed he could not have been the rapist.


It’s hard to imagine how DNA testing could be withheld at this point. Some 248 people have been exonerated now by DNA testing, including 10 others in Florida and 17 on death rows around the country, according to The Innocence Project, which helped Bain.


Public support for the death penalty, as well as its actual use, have been declining, in part because of doubts raised by DNA.


We still believe the ultimate penalty is appropriate in the worst cases.


But if Florida and other states fail to fund and expedite DNA testing in death cases, no matter how old, support for capital punishment will continue to erode—and deservedly so.

Wrong Convictions Merit Study

Wrong Convictions Merit Study

Published:
Saturday, December 19, 2009 10:08 AM EST

http://www.polkcountydemocrat.com/articles/2009/12/19/opinion/our_viewpoint/doc4b2c049d920bd357907470.txt

As much as our Constitution, our body of laws, and our court system work to prevent it, occasionally an innocent person is sent to prison.

Not innocent in the sense that he didn’t do precisely what he was charged with; innocent in the sense that the wrong person was convicted.

Our judicial system is weighted heavily in favor of the accused, and our sense of justice deems it better that a guilty person go free than that an innocent person go to prison.

But on the rarest occasions, the innocence of a convicted felon is proven, usually by DNA technology that was not available at the time of the original trial.


Such a case emerged last week in Polk County, when Innocence Project of Florida, an advocacy group for the wrongfully convicted, was able to have DNA evidence tested in a 35-year-old case of a Lake Wales man convicted of sexually assaulting a nine-year-old boy.

The imprisonment for three-and-a-half decades reportedly is the longest wrongful imprisonment of any of the 245 people who have been exonerated throughout the country by analysis of DNA evidence.

Until a few years ago, compensation of those wrongfully imprisoned in Florida took a special act of the Legislature.

After a $2 million claims bill was passed in 2005 for a man imprisoned 22 years for a crime he did not commit, the Legislature passed a bill that automatically awards $50,000 per year to people wrongfully sent to prison, provided they have no other felony convictions.

It was a sound decision.

Presumably, James Bain will be awarded $1.75 million for the years he spent in prison. We do not begrudge him a dime.

In the wake of the discovery of Bain’s wrongful conviction, 66 lawyers petitioned the Florida Supreme Court last Friday to create a panel to study the 11 Florida cases that have been overturned in recent years.

Eleven egregious errors out of the thousands and thousands of people convicted is not statistically significant, perhaps . . . except to those 11 defendants.

We hope the court will grant the petition.

One thing may be assumed in Bain’s case: it wasn’t for lack of competent representation.

Bain was defended by the late Jack Edmund, one of the finest criminal defense lawyers in Polk County’s history. He was a master practitioner.

One factor undoubtedly was the absence of DNA technology 35 years ago. Its development has proved to be a valuable tool — usually for the prosecution, occasionally for the defense.

Proper use of that technology now presumably results in fewer wrongful convictions, and in more correct ones.

In addition to looking at the 11 cases that demonstrably went wrong, the committee also should examine why, in Bain’s case, four previous attempts since May 2001 to have DNA tested were rejected.

It was not until Innocence Project got involved, and offered to pay for the testing, that the test was conducted.

If, as we hope, post-trial DNA testing proves that 99.9 percent of convictions are supported by DNA results, society will have the satisfaction of knowing that justice was achieved.

And if one case in a thousand shows a wrongful imprisonment, society will have the satisfaction of seeing an injustice corrected.

Peoria native says James Bain is a testament to human spirit

Peoria native helped free innocent Florida man
Peoria native says James Bain is a testament to human spirit

http://www.pjstar.com/news/x1599182529/Peoria-native-helped-free-innocent-Florida-man

By Elyse Russo (erusso@pjstar.com)
Journal Star

Posted Dec 18, 2009 @ 10:02 PM
PEORIA —

Watching James Bain walk out of the Polk County courthouse in Bartow, Fla., a free man Thursday really got to Peoria native Melissa Montle.

"I normally can hold back my tears, but I couldn't yesterday with him," the attorney with the Innocence Project said Friday. "He is such a sweet, kind, loving human being."

Montle, 31, was part of the team of lawyers that helped exonerate Bain, who was behind bars for 35 years for a crime he did not commit.

"I think (Bain's case) teaches us all something about the power of the human spirit and forgiveness, and I think we could all be a little more like him," Montle said.

Montle graduated from Notre Dame High School in 1996 and Bradley University in 2000. After receiving her law degree from Tulane University and working five years as an attorney, she moved to Tallahassee, Fla., in July 2008 with her husband, John McCarroll, to accept a position with the Innocence Project.

"I feel so lucky and so blessed to be here, and to get to know these men," Montle said, adding she has not yet had a case with a female client. "All of my clients are amazing human beings with strength that I can't imagine having."

When Innocence Project heard about Bain's case, Montle said IP thought, "Holy mackerel! This guy needs a lawyer."

Bain was convicted of kidnapping and raping a 9-year-old boy in Lake Wales, Fla., in 1974, before DNA testing was developed. Since 2001, Bain had handwritten five pro se motions for DNA testing, and they had all been turned down until 2006, when the ruling on the fifth petition was reversed by a higher court. That's when the Innocence Project got involved.

When Bain finally was granted DNA testing on Oct. 16, 2009, the Innocence Project's lab ran the tests and "unequivocally excluded" Bain's DNA from the semen found on the victim's underwear, Montle said.

According to the Innocence Project, Bain was behind bars longer than any of the other 246 inmates exonerated by DNA nationwide.

"She is so compassionate," Bonnie White of Peoria said about her granddaughter.

Melissa's parents, Lynn and Tony Montle, live in the Lake Camelot subdivision in Mapleton.

Melissa Montle said besides the Bain case, she has about a dozen other cases that are in different stages of progress.

"I have a lot more Jamie Bains, I hope," she said.

Elyse Russo can be reached at 686-3251 or erusso@pjstar.com.

"Justice delayed is justice denied."

From the blog of Jeff Gamso :

Commentary by an Ohio criminal defense lawyer

http://gamso-forthedefense.blogspot.com/2009/12/justice-denied.html

Thursday, December 17, 2009

Justice Denied
"Justice delayed is justice denied."

That's generally attributed to William Gladstone, though nobody seems to be able to find just where he might have said it. Regardless, it's an old idea, at least as old as Magna Carta. Back in 1215 King John was made to sign off on it.

To no one will we sell, to no one deny or delay right or justice.
The perhaps-Gladstonian phrase crossed the Atlantic at least by 1924 when the Ohio Supreme Court used it in Gohman v. City of St. Bernard (no free copy available, sorry) to describe a Nebraska case that kicked around the courts of that state for some ten years.

Whatever the idea's pedigree, nobody seems to have sent the memo to Florida.

His name is James Bain. He's a free man today, and it's about time.

Back in 1974, a 9-year-old boy was kidnapped and raped by a man he described as having bushy sideburns and a mustache. He picked Bain out of a lineup. Convicted. 35 years in prison. 35 years.

In 2001, Florida enacted a law permitting cases to be reopened for DNA testing.

Bain wrote a motion asking for the testing. Longhand. Denied.
Bain wrote another motion asking for the testing. Longhand. Denied.
Bain wrote another motion asking for the testing. Longhand. Denied.
Bain wrote another motion asking for the testing. Longhand. Denied.
Pepe Le Pew said, "You know, most men would get discouraged by now, fortunately for you, I am not most men." Fortunately for Bain, neither is he.

Bain wrote another motion asking for the testing. Longhand. Denied.

This time, he appealed. And he got the Florida Innocence Project involved. The court of appeals said he was entitled to a hearing. It turns out that there was something to test. And, oh, yeah. Bain is innocent. Wholly.

According to AP, Bain said.

"No, I'm not angry," he said. "Because I've got God."

That's OK. I've got enough anger for both of us. Not because he was convicted. That just makes me sad. Those 27 years Bain was in prison, doing life, because eyewitness identification is altogether unreliable but almost always believed, that's how it goes. It's awful and inexcusable, but in some sense understandable.

The last 8 years is something else. Bain spent those in prison because the courts and the prosecutors didn't give a damn. Why would they want actually to apply the law that was designed to check for miscarriages of justice. They know better. There are no miscarriages of justice. Kids don't lie or make mistakes and juries are never wrong (except when they acquit). Why double check? Why bother?

Because it matters. Because one request should be all it takes. Because, frankly, they ought to be checking on their own. Because even the lives of people in prison matter. Because the fantasy land of courts and prosecutors is a fantasy land. Because of James Bain.

Thanks to Sarah, at Preaching to the Choir, who wrote movingly about this.
Posted by Jeff Gamso at 3:02 PM

Another day, another exoneration

From the blog "Preaching to the choir" :


Wednesday, December 16, 2009

Another day, another exoneration

http://rantsofapublicdefender.blogspot.com/

Do you think that when the Florida legislature passed a statute authorizing the reopening of cases for DNA testing that they intended for courts to deny a guy's handwritten four times and dither for 8 years before finally getting around to the testing? Maybe the delay between this defendant's first motion and the eventual results only seems so outrageously long in this case because the test revealed the defendant wasn't a match.

In 1974, someone kidnapped a 9 year-old boy and raped him. Fortunately, the bad guy left the child alive. And he left behind a sample. Unfortunately, James Bain was wrongly picked out as the bad guy and languished in Florida prisons for 35 years. While they were all wrong, the last 8 seem particularly unnecessary. If a court had just treated his first motion with respect or his second or maybe even his third, he could have been released while still in his 40s (he's 54 now). But as it stands, he had to wait those extra 8 years. And now the court and the prosecutors are all working to make sure he's out in time for Christmas. Boy, then that judge and those prosecutors can feel all warm and fuzzy about doing justice. I wonder if they can totally shut out that nagging voice reminding them that by opposing and denying his earlier motions, they cost him an extra 8 Christmases behind bars.

Mr. Bain is actually lucky that he did prevail on his fifth motion. A successive motion like that could have been considered an abuse of process that should be sent straight to the circular file. Just like week, my state supreme court considered the question of when, if ever, a district court can simply ban a litigant from filing any further motions. Well, here we have evidence that sometimes defendants are persistent not because they're annoying but because they have a meritorious claim that the courts are ignoring. It's pretty hard to argue that Mr. Bain's motions were properly denied now that we know the results of the test.

I am very happy to know that James Bain will get to spend Christmas with his mother, who was beginning to worry she would die before her son ever got justice. But I wish I could have been offering him my well-wishes 8 years ago.

Boston Bar Association: Provide Access to DNA Tests

Innocence Blog
Boston Bar Association: Provide Access to DNA Tests

Posted: December 16, 2009 6:10 pm


A report released today by the Boston Bar Association lays out a sweeping strategy for improving the accuracy of the state’s criminal justice system and calls for the enactment of a law providing access to DNA testing in cases where it can prove innocence.

Massachusetts is one of just three states without a DNA access law, and the Innocence Project today called on state lawmakers to work to pass such a measure in the months ahead.

“Over the last several years, nearly every state in the nation has passed a law granting prisoners access to DNA testing that can prove innocence or confirm guilt. In just the last two years alone, Mississippi and South Carolina passed laws granting access to post-conviction DNA testing, but Massachusetts still hasn’t,” Innocence Project Policy Director Stephen Saloom said today. “This report makes a serious, well-reasoned, broadly supported case for finally passing legislation in Massachusetts to grant DNA testing to prisoners, and we hope the State Legislature and the Governor act on it.”

The Bar Association report was created by a task force chaired by two former prosecutors and including representatives of the law enforcement, defense and forensic communities.


Task force co-chairman David E. Meier told the Boston Globe that a broad group of experts was necessary to create the report because fixing the criminal justice system is in everyone’s interest.

“The wrongful conviction of an innocent defendant strikes at the foundation of the criminal justice system,’’ (Meier) said in an interview. “It impacts everyone: the defendant, the victim and the victim’s family, the integrity of the system, and, perhaps most importantly, the public’s confidence in our system of justice.’’

Boston Bar Association press release.
http://www.bostonbar.org/ebusiness/bbapublications/newsreleaseitem.aspx?ID=7

Download the full report. (PDF)

http://www.bostonbar.org/prs/reports/BBA-Getting_It_Right_12-16-09.pdf

The two other states that lack post-conviction DNA access are Alaska and Oklahoma, but some states offer extremely limited access to testing and need improvements. Visit our interactive map to learn about the details in your state.

Man exonerated, freed from prison after 35 years - VIDEO

Man exonerated, freed from prison after 35 years

December 17, 2009 12:16 p.m. EST December 17, 2009 12:16 p.m. EST

http://www.cnn.com/2009/CRIME/12/17/florida.dna.exoneration

DNA test frees man after 35 years

NEW: "You are a free man. Congratulations," judge tells James Bain
Bain imprisoned for 35 years in abduction and rape of a 9-year-old Florida boy
DNA testing excluded Bain from crime, authorities say
His case was reopened after his fifth request to use DNA evidence

Bartow, Florida (CNN) -- After more than three decades in prison, a Florida man was set free Thursday after a DNA test showed he did not kidnap and rape a 9-year-old boy in 1974.

"I'm not angry," James Bain, 54, told reporters after a brief hearing in Bartow, Florida.

Bain was 19 when he was convicted on charges of kidnapping, burglary and strong-arm rape. He received a life sentence. He's going home for the first time in 35 years.

"I got God in my head," said Bain, surrounded by supporters and wearing a T-shirt with "Not Guilty" across the front. "I knew one day he will reveal me."

Of the 245 people in the United States whom DNA testing has exonerated, none has spent more time behind bars than Bain, according to the Innocence Project, a national organization dedicated to exonerating wrongfully convicted people through such testing.

In 2001, Florida passed a statute allowing cases to be reopened for DNA testing. Bain submitted handwritten motions four times seeking such testing but was denied each time. His fifth attempt was successful after an appeals court ruled he was entitled to a hearing.

Bain initially was expected to be freed with some conditions as the state wanted a further review of DNA test results. But the review was completed ahead of Thursday's hearing.

Polk County State Attorney Jerry Hill told the judge that DNA testing had excluded Bain from the crime.

"He's just not connected with this particular incident," Hill said.

"Mr. Bain, I'm now signing the order, sir," the judge said, referring to an order vacating the judgment and sentence.

"You are a free man. Congratulations," he said, and the courtroom erupted into applause.

In 1974, the 9-year-old Lake Wales, Florida, victim had told police that his attacker had bushy sideburns and a mustache. After being shown five photos of potential suspects, the victim picked out one of Bain, the police report said.

The victim, now 44, lives in Florida and was made aware of Bain's situation, according to multiple sources.

Speaking to reporters Thursday, Bain said he was going home with family. "I'm going to see my mom," he said.

His mother, Sarah Reed, has been in and out of hospitals in recent years. She said she is putting her house and her car in her son's name. "I want him to have something by himself. He's suffered enough," she said.

Asked about prison, Bain said, "So many things can happen to you at any time." But now, "I guess I kind of feel like when they first landed on the moon. We have touchdown," he said, laughing.

DNA Exonerates Inmate After Serving 35 Years for Kidnapping, Rape

DNA Exonerates Inmate After Serving 35 Years for Kidnapping, Rape

Thursday, December 17, 2009

http://www.foxnews.com/story/0,2933,580468,00.html


BARTOW, Fla. — James Bain used a cell phone for the first time Thursday, calling his elderly mother to tell her he had been freed after 35 years behind bars for a crime he did not commit.

Mobile devices didn't exist in 1974, the year he was sentenced to life in prison for kidnapping a 9-year-old boy and raping him in a nearby field.

Neither did the sophisticated DNA testing that officials more recently used to determine he could not have been the rapist.

"Nothing can replace the years Jamie has lost," said Seth Miller, a lawyer for the Florida Innocence Project, which helped Bain win freedom. "Today is a day of renewal."

Bain spent more time in prison than any of the 246 inmates previously exonerated by DNA evidence nationwide, according to the project. The longest-serving before him was James Lee Woodward of Dallas, who was released last year after spending more than 27 years in prison for a murder he did not commit.

As Bain walked out of the Polk County courthouse Thursday, wearing a black T-shirt that said "not guilty," he spoke of his deep faith and said he does not harbor any anger.


"No, I'm not angry," he said. "Because I've got God."

The 54-year-old said he looks forward to eating fried turkey and drinking Dr Pepper. He said he also hopes to go back to school.

Friends and family surrounded him as he left the courthouse after Judge James Yancey ordered him freed. His 77-year-old mother, who is in poor health, preferred to wait for him at home. With a broad smile, he said he looks forward to spending time with her and the rest of his family.

"That's the most important thing in my life right now, besides God," he said.

Earlier, the courtroom erupted in applause after Yancey ruled.

"Mr. Bain, I'm now signing the order," Yancey said. "You're a free man. Congratulations."

Thursday's hearing was delayed 40 minutes because prosecutors were on the phone with the Florida Department of Law Enforcement. DNA tests were expedited at the department's lab and ultimately proved Bain innocent. Prosecutors filed a motion to vacate the conviction and the sentence.

"He's just not connected to this particular incident," State Attorney Jerry Hill told the judge.

Attorneys from the Innocence Project of Florida got involved in Bain's case earlier this year after he had filed several previous petitions asking for DNA testing, all of which were thrown out.

A judge finally ordered the tests and the results from a respected private lab in Cincinnati came in last week, setting the wheels in motion for Thursday's hearing. The Innocence Project had called for Bain's release by Christmas.

He was convicted largely on the strength of the victim's eyewitness identification, though testing available at the time did not definitively link him to the crime. The boy said his attacker had bushy sideburns and a mustache. The boy's uncle, a former assistant principal at a high school, said it sounded like Bain, a former student.

The boy picked Bain out of a photo lineup, although there are lingering questions about whether detectives steered him.

The jury rejected Bain's story that he was home watching TV with his twin sister when the crime was committed, an alibi she repeated at a news conference last week. He was 19 when he was sentenced.

Florida last year passed a law that automatically grants former inmates found innocent $50,000 for each year they spent in prison. No legislative approval is needed. That means Bain is entitled to $1.75 million.

Fla. man exonerated after 35 years behind bars

Fla. man exonerated after 35 years behind bars

By MITCH STACY (AP) – 29 minutes ago

http://www.google.com/hostednews/ap/article/ALeqM5h-Io4q44R7xoFi78PEyLMe8G1qzQD9CL78R01

BARTOW, Fla. — James Bain used a cell phone for the first time Thursday, calling his elderly mother to tell her he had been freed after 35 years behind bars for a crime he did not commit.

Mobile devices didn't exist in 1974, the year he was sentenced to life in prison for kidnapping a 9-year-old boy and raping him in a nearby field.

Neither did the sophisticated DNA testing that officials more recently used to determine he could not have been the rapist.

"Nothing can replace the years Jamie has lost," said Seth Miller, a lawyer for the Florida Innocence Project, which helped Bain win freedom. "Today is a day of renewal."

Bain spent more time in prison than any of the 246 inmates previously exonerated by DNA evidence nationwide, according to the project. The longest-serving before him was James Lee Woodward of Dallas, who was released last year after spending more than 27 years in prison for a murder he did not commit.

As Bain walked out of the Polk County courthouse Thursday, wearing a black T-shirt that said "not guilty," he spoke of his deep faith and said he does not harbor any anger.

"No, I'm not angry," he said. "Because I've got God."

The 54-year-old said he looks forward to eating fried turkey and drinking Dr Pepper. He said he also hopes to go back to school.

Friends and family surrounded him as he left the courthouse after Judge James Yancey ordered him freed. His 77-year-old mother, who is in poor health, preferred to wait for him at home. With a broad smile, he said he looks forward to spending time with her and the rest of his family.

"That's the most important thing in my life right now, besides God," he said.

Earlier, the courtroom erupted in applause after Yancey ruled.

"Mr. Bain, I'm now signing the order," Yancey said. "You're a free man. Congratulations."

Thursday's hearing was delayed 40 minutes because prosecutors were on the phone with the Florida Department of Law Enforcement. DNA tests were expedited at the department's lab and ultimately proved Bain innocent. Prosecutors filed a motion to vacate the conviction and the sentence.

"He's just not connected to this particular incident," State Attorney Jerry Hill told the judge.

Attorneys from the Innocence Project of Florida got involved in Bain's case earlier this year after he had filed several previous petitions asking for DNA testing, all of which were thrown out.

A judge finally ordered the tests and the results from a respected private lab in Cincinnati came in last week, setting the wheels in motion for Thursday's hearing. The Innocence Project had called for Bain's release by Christmas.

He was convicted largely on the strength of the victim's eyewitness identification, though testing available at the time did not definitively link him to the crime. The boy said his attacker had bushy sideburns and a mustache. The boy's uncle, a former assistant principal at a high school, said it sounded like Bain, a former student.

The boy picked Bain out of a photo lineup, although there are lingering questions about whether detectives steered him.

The jury rejected Bain's story that he was home watching TV with his twin sister when the crime was committed, an alibi she repeated at a news conference last week. He was 19 when he was sentenced.

Judge orders release of inmate James Bain after 35 years

Judge orders release of inmate James Bain after 35 years

http://xml.orlandosentinel.com/news/local/os-james-bain-release-20091217,0,7580399.story

The Associated Press
10:21 a.m. EST, December 17, 2009


BARTOW, Fla. - A judge in Central Florida has ordered the release of a man who spent 35 years in prison before being exonerated by DNA evidence.

James Bain's release was ordered by Judge James Yancey at a Thursday morning court hearing in Bartow. Bain was expected to walk out of the Polk County jail later Thursday.

Bain was convicted in 1974 or kidnapping a 9-year-old boy and raping him in a nearby field in Lake Wales.

But results of DNA testing received last week showed that semen left in the victim's underwear could not have come from Bain.

The Florida Innocence Project says Bain has spent more time in prison than any of the 245 inmates around the country who previously have been exonerated by DNA evidence.

Bain hearing set Thursday

Bain hearing set Thursday

Stella Reeves, Bain’s mother, speaks at a press conference last week.

By TOM STAIK
Staff Writer
Published:
Wednesday, December 16, 2009 11:24 AM EST

Freedom from a lifetime behind bars may be less than 24 hours away for Lake Wales native James Bain. Acting on new DNA evidence that has seemingly exonerated Bain in the 1974 rape of a Lake Wales 9-year-old, state justice officials have scheduled a hearing before Judge James A. Yancey for Thursday morning at the Polk County Courthouse in Bartow.

“The motion will be to release (Bain) pending the conclusion of proceedings,” a senior official at the District X Office of the State Attorney told the Lake Wales News Tuesday afternoon.

The Polk County Courthouse confirmed a motion is scheduled to be heard before Judge Yancey at 9 a.m. Thursday. They would not confirm the nature of the motion.

Innocence Project of Florida (a public advocacy group that championed the DNA testing on behalf of Bain) said they are pleased with the timeliness of Thursday’s hearing. It comes just one week after the new DNA evidence was made public.


“We are very pleased that the state attorney has been so diligent in working closely with the public defender and the Innocence Project to get James Bain home as soon as possible,” said Seth Miller, executive director of the Innocence Project of Florida, by phone to the Lake Wales News on Tuesday.

Bain was convicted of taking a 9-year-old boy from bed – leaving the boy’s also sleeping brother and sister behind – and raping him in a field near his Lake Wales home on March 4, 1974. The boy woke and was raped after being ordered to take off his pants. He returned home wearing underwear, secured by law enforcement at the time, that contained semen.

The victim described his attacker as a young man between 17 or 18 with a mustache, beard, and sideburns.

According to Seth Miller, executive director of the Innocence Project, the victim’s uncle, an assistant principal at Lake Wales High School, led the boy to believe the description sounded like Bain. Investigators too, Miller asserts, led the victim to identify Bain by asking him to pick out “Jimmie” Bain, not his attacker.

The Innocence Project was unsuccessful in its first four petitions to have DNA testing ordered on the semen in the victim’s underwear.

According to the advocacy group, witness misidentification and faulty forensics are two of the leading causes of wrongful convictions. Witness misidentification contributed to nearly 80 percent of the 245 wrongful convictions later overturned by DNA testing nationwide. If cleared, the Lake Wales man would have served longer than any of the other 245 persons nationwide who’ve seen their convictions overturned after DNA testing.

The local case may also be the catalyst for the state to create a special panel that could review such situations. That story can be found on page 17.

Discredited forensics may upend rulings

Discredited forensics may upend rulings

Meg Laughlin, Times Staff Writer
In Print: Saturday, December 13, 2008


In 1998, Panhandle high school teacher Jimmy Ates was convicted of murder for shooting his wife seven times in the couple's Okaloosa County home. There were conflicting witness accounts and a time line with wiggle room. But the testimony of an FBI expert was indisputable: The bullets that murdered Norma Jean Ates in the couple's bedroom came from Jimmy Ates' box of bullets.

Prosecutor Rod Smith hammered the point home to jurors: "Of all the millions and billions of bullets that are made by any given company in any given time frame, the bullets that killed Norma Jean were manufactured from the same batch that were found in the box in the back room."

But now, a decade later, another prosecutor has taken an unprecedented step and asked that the sentence be invalidated because "the fairness of the defendant's trial was severely jeopardized." The move could affect murder cases around the country, including a death row appeal in St. Petersburg.

The turnaround for Gainesville prosecutor Geoffrey Fleck came in late May, after he received a letter from the head of the FBI lab. The letter said that the FBI expert who testified at the Ates trial "did not provide sufficient information to the jury to allow them to understand how bullets are made," which meant the jury "could have misunderstood the probative value of the evidence."

The letter to the Gainesville State Attorney's Office was among hundreds of letters the FBI sent out in the past year in support of what FBI agents said in November 2007 on 60 Minutes — that FBI bullet lead analysis is now a "discredited forensic tool" because the distribution of metal alloys in a bullet is not linked to when and where the bullet was made.

"We are going the entire distance to ensure that justice is served," FBI assistant director John Miller said on 60 Minutes.

But Fleck is the first prosecutor to step forward and ask that a sentence be overturned because of the "FBI junk science."

This week, defense attorney Barry Scheck, director of the National Innocence Project, called Fleck's request "exemplary" and said he hoped it would be "the example other prosecutors would follow."

"Getting the murder convictions based on faulty ballistics overturned is a slow process, but it's working because of the FBI's commitment," said Scheck.

Last year in St. Petersburg, appellate attorney Martin McClain used the 60 Minutes information to ask Pinellas Circuit Judge Mark Shames to vacate the conviction of death row inmate Derrick Smith, convicted of killing cabdriver Jeffrey Songer in 1983. But prosecutors have argued against giving Smith a new trial, and, so far, the judge has agreed with them.

But several weeks ago, McClain made a new request asking the judge to reconsider "in light of Ates" saying that, as in the Ates case, the primary evidence — the bullet link to the defendant — was "fundamentally flawed" causing "the fairness of (Smith's) trial to be fundamentally jeopardized."

McClain is waiting for a decision.

Meanwhile, on Wednesday, Ates will attend a hearing in Okaloosa County, where, according to lawyers for the Innocence Project of Florida and Fleck, he is expected to be released on bail by the judge while prosecutors decide if he should be retried.

Louise Kortaba, Norma Jean Ates' mother, said for a few years after her daughter was shot in 1991 she thought her son-in-law was innocent. But she eventually changed her mind and "felt he was guilty." But now, she says, she's "not clear on what happened."

"If I've been wrong, I hope God and Jimmy will forgive me," said Kortaba.

Prosecutor Rod Smith, who became a state senator and is now a civil lawyer in Gainesville, has also rethought the conviction of Jimmy Ates.

"If we'd known then what we know now, we obviously wouldn't have put that FBI evidence in," said Smith. "But now we know what we know and the state has to meet its obligation."

In his motion asking the judge to vacate the sentence, Fleck also said that police investigators withheld suspicious fingerprint evidence in the house from the prosecutor and the defense.

"The jury was misled about important evidence at trial," he concluded.

Fleck concedes that his position as the first prosecutor in the country to ask that a murder sentence be vacated because of faulty FBI bullet testimony is not popular with everyone. But he says he's thankful his office is supporting him.

"While successful prosecutions are nice, justice is better," he said.

Contact Meg Laughlin at mlaughlin@sptimes.com.



To read the Times previous coverage of tainted bullet evidence go to links.tampabay.com.


[Last modified: Dec 18, 2008 12:06 PM]

DNA tests mean Bain could be released Thursday in 1974 Polk County rape case

DNA tests mean Bain could be released Thursday in 1974 Polk County rape case

By Meg Laughlin, Times Staff Writer
In Print: Wednesday, December 16, 2009

http://www.tampabay.com/news/courts/criminal/bain-could-be-released-thursday-in-1974-polk-county-rape-case/1059002

Attorneys for the Innocence Project of Florida said Tuesday that they will request the release of James Bain at a hearing Thursday.

Bain has spent 35 years in prison for the rape of a Polk County child that new DNA results show he did not commit.

"We're happy to report that we're working well with the public defender and the Innocence Project of Florida to do what's appropriate," said Polk County Assistant State Attorney Chip Thullbery.

Bain is being moved from the Okeechobee Correctional Institution to the Polk County Jail for the hearing.

"We are pleased that the state has acted so diligently in working with the public defender and the Innocence Project of Florida to make sure James Bain gets home before Christmas," said Innocence Project executive director Seth Miller.

If all goes as expected, Bain should be released with conditions by Thursday afternoon. The terms of Bain's possible release are still unclear.

In 1974 in Lake Wales, a 9-year-old boy was lifted out of his bed while sleeping. He was taken by a man he described as "17 or 18 ... with bushy sideburns who said his name was Jim" to a nearby baseball diamond where he was raped. When he returned home and described the rapist to his uncle, his uncle commented that it sounded like "Jimmy Bain."

Upon hearing of the DNA results and the upcoming hearing, Bain's 1974 prosecutor Ed Threadgill said this: "It appears a terrible injustice has been done. It's too bad we didn't have DNA testing back then. It would have saved a lot of people a lot of misery."

Times researcher Caryn Baird contributed to this story.

Our views: Still seeking justice (Dec. 16)

Our views: Still seeking justice (Dec. 16)

Innocence panel welcome, but probe of Preston-era prosecutions still needed
December 16, 2009

http://www.floridatoday.com/article/20091216/OPINION/91215024/1004/Our+views++Still+seeking+justice+(Dec.+16)

The story is far too familiar.


Friday, DNA tests proved the innocence of James Bain, a Lakes Wales man who has spent the last 35 years in prison for a 1974 rape he didn’t commit.


Last year, former Satellite Beach resident William Dillon was released from prison after tests proved his DNA was not on a T-shirt that was a key piece of evidence in his 1988 conviction for the slaying of James Dvorak.


In 2004, similar testing exonerated Wilton Dedge of Port St. John of a 1981 rape charge after he served 22 years behind bars.


In recent years, at least 11 convictions in Florida have been reversed through new DNA evidence, often after inmates sought the tests for years, but were unconscionably stonewalled by state prosecutors.


The sickening roster of injustice is why there’s no denying the need for scrutiny of the state’s justice system.


It has caused untold human suffering, piled costs for needless incarceration on taxpayers and left the real perpetrators of heinous crime free to possibly rape or murder again.


Friday, a group of lawyers led by former Florida State University President Sandy D’Alemberte proposed such a probe, petitioning the state Supreme Court to create an “actual innocence commission” to examine the facts in the slate of wrongful convictions.


The court should quickly authorize the panel, which would be modeled on one North Carolina created in 2002 that led to reforms to ensure more innocent persons weren’t locked away.


The Florida commission would be made up of judges, prosecutors, public defenders and law enforcement agents, and should also include victims’ advocates.


Panel members should cast the broadest possible net to find the flaws in the handling of criminal cases that lead to the erroneous verdicts.


And scrutiny of police procedures — such as the accuracy of eyewitness identification — should be a top priority for the group.


Misidentification of suspects by witnesses, as happened to Dedge and Dillon, is a factor in 74 percent of the 245 post-conviction exonerations based on DNA evidence in the U.S. since 1989, according to the Innocence Project.

(2 of 2)



It’s our hope the commission’s findings result in specific remedies and changes to state law to protect the innocent from gross travesties of justice in the future.


But its role will be advisory, without authority to hold accountable any prosecutors or law enforcement agents who may have broken the law in the Brevard-Seminole State Attorney’s Office during the 1980s.


In that era, officials used fraudulent dog handler John Preston and other sham tactics — such as tainted witnesses and jailhouse snitches who trade testimony in return for lesser sentences — to pin convictions on Dedge, Dillon and others.


Roger Dale Chapman, for example, apologized to Dillon in Tallahassee last month, saying he was told to lie by Brevard County Sheriff’s Office Detective Thom Fair. In exchange, he said, the state dropped sex charges against him.


That testimony spurred Sheriff Jack Parker to reopen the Dvorak homicide investigation, a warranted step to assure public safety as much as possible after such a long interval since the crime. But also not enough.


What’s still needed is this:


Gov. Charlie Crist or Attorney General Bill McCollum to order a grand jury investigation of repeated miscarriages of justice in the cases involving Preston.


They’ve ignored previous calls for a probe, but the issue isn’t going away.


We remind them again of their sworn responsibility to pursue justice.


That means determining whether individuals in the State Attorney’s Office did conspire to illegally win convictions and, if so, seeing they are prosecuted and punished.

It’s our hope the commission’s findings result in specific remedies and changes to state law to protect the innocent from gross travesties of justice in the future.


But its role will be advisory, without authority to hold accountable any prosecutors or law enforcement agents who may have broken the law in the Brevard-Seminole State Attorney’s Office during the 1980s.


In that era, officials used fraudulent dog handler John Preston and other sham tactics — such as tainted witnesses and jailhouse snitches who trade testimony in return for lesser sentences — to pin convictions on Dedge, Dillon and others.


Roger Dale Chapman, for example, apologized to Dillon in Tallahassee last month, saying he was told to lie by Brevard County Sheriff’s Office Detective Thom Fair. In exchange, he said, the state dropped sex charges against him.


That testimony spurred Sheriff Jack Parker to reopen the Dvorak homicide investigation, a warranted step to assure public safety as much as possible after such a long interval since the crime. But also not enough.


What’s still needed is this:


Gov. Charlie Crist or Attorney General Bill McCollum to order a grand jury investigation of repeated miscarriages of justice in the cases involving Preston.


They’ve ignored previous calls for a probe, but the issue isn’t going away.


We remind them again of their sworn responsibility to pursue justice.


That means determining whether individuals in the State Attorney’s Office

Wrongfully convicted man says he's far from alone

Wrongfully convicted man says he's far from alone

Staff photo by CHRIS URSO

"There’s more innocent people in prison,'' said Alan Crotzer, 48. "Without a shadow of a doubt.''

http://www2.tbo.com/content/2009/dec/14/wrongfully-convicted-man-says-hes-far-alone/

By RAY REYES The Tampa Tribune

Published: December 14, 2009

Related Links

Crotzer discusses his case
Former inmate gets $1.25 million
Photos of the case
Bain case reviews DNA

ST. PETERSBURG - Alan Crotzer knows what it is like to be innocent of a crime even when a jury decides otherwise.

Convicted of kidnapping, robbery and rape when he was 19, Crotzer grew old in prison and thought he was going to die there.

Then technology set him free.

DNA testing, which did not exist when Crotzer was convicted of kidnapping, robbery and rape in 1981, exonerated him of the charges in 2006. The same technology may help inmate James Bernard Bain, who was convicted of raping a Lake Wales boy in 1974.

DNA test results released Thursday showed Bain's DNA does not match any samples taken from the 9-year-old victim's underwear. The Tallahassee-based Innocence Project of Florida, which took on Crotzer's case, is now working to reunite Bain with his family by Christmas.

The Innocence Project screens and investigates cases with evidence — typically the DNA in biological evidence — that a person has been wrongly imprisoned.

"The technology is a godsend. Without it, we would've died in prison," Crotzer said Monday night before he took the stage for a roundtable discussion on wrongful imprisonment hosted by the Stetson University College of Law and The Studio@620 in St. Petersburg.

The discussions are held for the public about five times a year. It was coincidence that Bain's case made headlines a week before the Social Justice Roundtable was to present the issue of wrongful imprisonment, although that particular discussion was planned months in advance, coordinator Alizza Punzalan-Hall said.

"We're honored to have somebody like Alan who can really talk about second chances," Punzalan-Hall said.

But the second chances don't come easy and re-entering society can be harrowing, Crotzer said.

"When I got out, I didn't know what a cell phone was," Crotzer said. "To me, it was like a tri-corder on 'Star Trek.'"

Bain, who was 19 when he was convicted on rape charges, faces similar hurdles after 35 years behind bars, Crotzer said.

"It's going to be tough," Crotzer said. "The community needs to get behind him. The community was the reason I was able to function."

Crotzer said he is working with various agencies to establish a program that helps released inmates readjust to society. He said there may be hundreds of Florida inmates doing time for crimes they did not commit.

"There's more innocent people in prison," Crotzer, 48, said. "Without a shadow of a doubt."

In 2007, the state compensated Crotzer $1.25 million for his wrongful imprisonment. He now works with the state's department of juvenile justice, mentoring teens.

He said he feels no bitterness about what happened to him but has lost faith in the justice system. He said he hopes Bain will also receive compensation and gets the support he needs to find a job, a place to live and a purpose in his life.

"He's going to get a crash course," Crotzer said. "It's a brand new world."

Bain's attorneys are submitting motions for his post-conviction release. Meanwhile, the Polk County State Attorney's Office has received the DNA test results and is reviewing Bain's case.

The Innocence Project In Print - Winter 2009

The Innocence Project In Print - Winter 2009

http://innocenceproject.org/news/winter09.php

The Florida Actual Innocence Commission

From the blog Plain Error :

The Florida Actual Innocence Commission

Seth — December 15, 2009 @ 9:00 AM — Comments (0)

This sounds like something every state should have but most states, including Florida, do absolutely nothing to study the cases where someone is later freed based on DNA or other evidence of actual innocence. The innocent person gets out, there is lots of hoopla and it is a wonderful event for them, their family, and their supporters. But when the lights of the news cameras go out and the buzz from the exonerations fade, all we are left with is the same criminal justice system that wrongfully convicted these individuals in the first place.

IPF Board Member and former ABA president, Sandy D’Alemberte is aiming change all that. With the support of IPF and dozens of high-profile, esteemed Florida attorneys supporting him, Sandy has filed a petition with the Florida Supreme Court to create an Actual Innocence Commission that can study cases of wrongful conviction, find out how and why they happened, and make recommendations for reform based on those findings.

A St. Pete Times editorial states:

On Friday, a group of renowned attorneys that includes former Florida Supreme Court justices, former presidents of the American Bar Association and former Florida Bar leaders, petitioned Florida Supreme Court Chief Justice Peggy Quince for the formation of an actual innocence commission. The request is modeled after a similar undertaking in North Carolina that brought together judges, police, prosecutors, defense lawyers, victims’ advocates and academics for a two-year review of procedures in the criminal justice system. The commission isolated factors that helped lead to wrongful convictions and recommended changes.

. . .

An innocence commission would comprehensively evaluate investigatory and court procedures, including those for eyewitness identification in cases like Bain’s, and suggest new safeguards. According to the Innocence Project of Florida, witness misidentification contributed to almost 80 percent of the 245 convictions later overturned by DNA testing nationwide.

We should not allow the canard that we have the best criminal justice system int he world to block efforts for reforming a system that is clearly broken. Wrongful convictions are proof that the system needs help. A truly healthy criminal justice system is one that recognizes its faults and endeavors to fix them.

This Innocence Commission is a wonderful idea that could pave the way to curing much that is wrong with Florida’s system and it is one we should all support.

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James Bain Round-up

From the blog Plain Error :

James Bain Round-up

Seth — December 14, 2009 @ 4:59 PM — Comments (0)

Well folks, we had a successful release of James Bain’s DNA test results which prove that he did not rape a little boy in 1974 and that he has been wrongfully incarcerated for over 35 years. Bain’s family was present and made some wonderful comments as well about how the wrongful incarceration has hurt them.

There has been a lot of press coverage and I wanted to point you all to some of it:

Lakeland Ledger (with video)
St. Pete Times
Tampa Tribune

Tampa Tribune again

AP Story in Miami Herald and dozens of other papers around the world
Fox TV in Tampa (with video)
ABC Action News Tampa (with two good videos)
Bay News 9 (with video)
Here is some video from the press conference courtesy of the Lakeland Ledger:


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‘I’ve been waiting ... for this miracle’

‘I’ve been waiting ... for this miracle’

http://www.lakewalesnews.com/articles/2009/12/12/news/local/doc4b22baf1358ad533402705.txt

BY TOM STAIK
Staff Writer

(Photo by Tom Staik) James Bain’s father, Kenneth Bain Sr., reads a published account of his son’s possible exoneration.

By TOM STAIK
Staff Writer
Published:
Saturday, December 12, 2009 10:07 AM EST

A computer must have seemed the work of science fiction to James Bain in 1974. Thirty-five years later it is a computer that may have given him back his life. Bain, 19 when he was imprisoned for the 1974 rape of a 9-year-old Lake Wales boy, has proclaimed his innocence ever since the conviction.

Modern science, it appears, agrees. Of the 245 people in the U.S. who have been exonerated by DNA testing, none has spent more time behind bars than James Bain.

A DNA test, ordered by Circuit Court Judge James A. Yancey in October of this year, has exonerated Bain in the rape, representatives of the Innocence Project of Florida announced Thursday afternoon on the steps of the Polk County Courthouse in Bartow. Attorneys for the Innocence Project said they plan to file a motion soon to throw out Bain's conviction and get him released. They called on prosecutors to drop the case quickly so Bain can be home for Christmas.

State attorney's office spokesman Chip Thullbery said prosecutors are reviewing the new evidence. He said he didn't know when a decision would be made about the next step.

"Our plans are to do the right thing, and we have to determine what that is," Thullbery said. "We will certainly try to do that as expeditiously as possible."

Bain, the advocacy group says, knew he would be exonerated.

"I always knew I was innocent," the advocacy group quoted Bain as saying when he was informed of the DNA results. "I've been waiting well over half my life for this miracle. I hope to be back with my family real soon."

Bain’s father is happy, too.

“I’m glad he’s getting out,” said his father Kenneth Bain Sr., 81, from his home on West Northside Drive in Lake Wales on Friday. “I thank the Lord for that. After 35 years it really was good news ... It’s a very long time to be locked up.”

“All the best of his life is gone. He don’t know what it is out here now. He never seen a computer,” he added.

Bain was convicted of taking a 9-year-old boy from bed – leaving the boy’s also sleeping brother and sister behind – and raping him in a field near his Lake Wales home on March 4, 1974. The boy woke and was raped after being ordered to take off his pants. He returned home wearing underwear, secured by law enforcement at the time, that contained semen.

The victim described his attacker as a young man between 17 or 18 with a mustache, beard, and sideburns.

According to Seth Miller, executive director of the Innocence Project, the victim’s uncle, an assistant principal at Lake Wales High School, led the boy to believe the description sounded like Bain. Investigators too, Miller asserts, led the victim to identify Bain by asking him to pick out “Jimmie” Bain, not his attacker.

The Innocence Project was unsuccessful in its first four petitions to have DNA testing ordered on the semen in the victim’s underwear.

According to the advocacy group, witness misidentification and faulty forensics are two of the leading causes of wrongful convictions. Witness misidentification contributed to nearly 80 percent of the 245 wrongful convictions later overturned by DNA testing nationwide.

“Seems like it took a lot (of praying). Some people let out of prison killed three or four people walking around the streets,” Kenneth added. “Lord it’s funny. I never understood the law.”

Bain's 77-year-old mother, Sarah Reeves, attended Thursday’s press conference.

"I didn't think I was going to make this day," said Reeves, who is poor health. "And I'm praying to God to help get him out so I can still be here. He's a good son."

If Bain gets out of prison, his mother said, the family would "celebrate all night."

“We are going to have a party,” his father added. “All of the family will get together and have a shindig.”

Sister Jannie Jones – Bain’s twin and together with him the youngest of Bain brook – had always been confident that DNA testing would someday exonerate her brother.

"Thirty-five years of his life is gone," she said. "He'll never get that back. We're going to move on, and we'll be there for him."

The victim, now 45, lives in Central Florida, the St. Petersburg Times is reporting. A veteran of the Marine Corps, he has served time behind bars for several offenses. The newspaper quotes his father as saying he is “very upset” by the development.

(The Associated Press contributed to this report.)