Supreme Court to decide on compensation for miscarriages of justice

2 June 2010

A man who was wrongly convicted of murder and released after 14 years in prison has won permission for his compensation claim to be heard by the Supreme Court.

Daniel Machover, partner at Hickman and Rose, said the Supreme Court would have to decide what exactly was meant by the phrase ‘miscarriage of justice’ for the purposes of statutory compensation.

Machover is acting for Andrew Adams, who was convicted and jailed for life in 1993 for the murder of former science teacher Alfred ‘Jack’ Royal. Royal was gunned down on his doorstep in Gateshead.

The Court of Appeal quashed Adams’ conviction in 2007, on the grounds that evidence had been missed by his original defence team. However, the same court decided last year that he should not be awarded compensation.

Delivering the leading judgment in R (on the application of Adams) v Secretary of State for Justice [2009] EWCA Civ 1291, Lord Justice Dyson held that it could not be said in the case of Adams that errors by counsel had caused something to go “seriously wrong” with the trial process.

“These errors were committed by experienced and apparently competent counsel acting conscientiously in good faith in the best interests of their client,” he said.

“It cannot fairly be said that the errors showed that the appellant was deprived of effective representation.”

As a result, Dyson LJ concluded that there was not a “miscarriage of justice” according to Lord Bingham’s definition in R v Home Secretary ex parte Mullen [2004] UKHL 18. Lord Justices Waller and Lloyd agreed.

Machover said that the Court of Appeal’s approach meant that compensation would be paid for miscarriages of justice by the state in only one or two cases a year, where a victim could show beyond reasonable doubt that he was innocent.

“You must have been exonerated by new forensic evidence, especially DNA evidence, delivering a knock-out blow to show it could not have been you,” he said.

“Or the true perpetrator must have confessed, or the complainant felt guilty and retracts their evidence.”

Machover said the key issue was the meaning of ‘miscarriage of justice’ and whether it included cases where something went badly wrong even if the victim could not show beyond reasonable doubt that he was innocent.

He said that in the case of Adams the Court of Appeal accepted that, under section 133 of the Criminal Justice Act 1988, there was “new or newly discovered” evidence.

At least three law firms are understood to have similar compensation claims to Adams, which have been stayed pending the Supreme Court judgment.

Machover added that since the ‘ex gratia’ scheme for miscarriages of justice had been abolished by the Labour government, the only other ways Adams could obtain compensation was by suing the police or the CPS for malicious prosecution or suing his original legal team for negligence.

The order granting permission to appeal to the Supreme Court was made by Lords Rodger, Brown and Clarke. The appeal will be heard early next year.

DNA Database Search Could Free Man on Florida’s Death Row; Legal Papers Filed to Force State to Allow Search for Real Perpetrator in 1986 Murder Case

(TALLAHASSEE, FL; June 9, 2010) – The Innocence Project today announced that it has filed a petition asking the Florida Supreme Court to order a DNA database search that could prove beyond any doubt whether a Hernando County man on death row was wrongfully convicted. The order is necessary, attorneys said, because the state has gone to “enormous lengths” to block the search despite assuring the Court five years ago that it would actively pursue all available means to obtain the truth.

“This one-time database search is in everyone’s interest, because it could not only provide conclusive proof that Paul Hildwin is innocent, but at the same time, identify who actually committed the crime,” said Innocence Project Senior Staff Attorney Nina Morrison. “That’s why most prosecutors in Florida and around the country routinely work with us to conduct searches like these without delay. But in Mr. Hildwin’s case, the Attorney General’s office has spent more than five years opposing our request for a search, even though they have never denied that a database hit to another offender could both prove the innocence of a man on death row and permit the state to prosecute the real killer.”

In 2003, DNA test results proved that Paul C. Hildwin was not the man whose semen and saliva were found on key items of evidence in the vehicle of the woman he was convicted of murdering in 1986. The Innocence Project, affiliated with Cardozo Law School, is now seeking to have that same DNA sample searched in the federal DNA databank, known as CODIS, and in Florida’s state database system. In a matter of days, such a search could determine whether the DNA in Hildwin’s case comes from another offender — potentially someone with a history of similar murders — whose profile is contained among the millions now stored in the system.

In legal papers filed June 8th, the Innocence Project asked the Florida Supreme Court to invoke its “all-writs” jurisdiction under the state constitution to order the CODIS search. This little-used procedural step is an appropriate use of the court’s authority not only because of the state’s continued stonewalling, but also because of the court’s role as “the ultimate arbiter of fairness and equity in the administration of capital cases,” according to the Innocence Project petition. The petition further notes that recourse to the Florida Supreme Court under an all-writs petition is necessary because the state has taken the hard-line position that no court, state or federal, has the power to order the search under traditional legal routes if, as here, the state chooses not to conduct a search on its own.

Morrison is co-counsel in the case of Hildwin, who was convicted of murdering Vronzettie Cox, a 42-year-old woman whose body was found in the trunk of her car in Hernando County 25 years ago. Her death was due to strangulation. Because the victim’s corpse was nude, and unidentified semen stains were found on a pair of her underwear in the back of her vehicle, investigators also concluded that she had likely been sexually assaulted.

Hildwin became a suspect in the murder after stolen property from the vehicle was found in his possession. When questioned, he told investigators that he had hitched a ride with the victim and her boyfriend several days earlier, and admitted stealing property from the vehicle, including the victim’s checkbook. But he denied assaulting or murdering her, and insisted that he left the victim with her boyfriend by the roadside after the two got into an argument and pulled over the car. (The victim’s boyfriend, William Haverty, has since been convicted of multiple violent sexual offenses against children and is presently serving prison sentences for those crimes.)

At the time of Hildwin’s trial, the only forensic evidence connecting him to the crime was a serology test showing that stains from semen and saliva on a pair of panties and a washcloth found in the back seat of Cox’s car may have belonged to a “non-secretor”—that is, the 11 percent of the population whose blood type doesn’t show up in other bodily fluids. According to prosecutors, these results meant that Hildwin, a non-secretor, had likely sexually assaulted Cox before murdering her, making the crime even more serious (Cox’s boyfriend Haverty was a secretor, and prosecutors argued this eliminated him as a suspect). Because Cox’s body was badly decomposed, however, it was impossible to tell for sure whether she had been raped. Nonetheless, the prosecutor made every effort to use this evidence to convince the jury to convict Hildwin — including, according to one news report, waving Cox’s tattered bra at the jury in his closing argument.

In early 2003, DNA tests on those same samples proved that Hildwin was not the source of the semen or saliva after all. Based on this important new exculpatory evidence, Hildwin’s lawyers requested a new trial. The Florida Supreme Court denied the request in 2006 by a narrow 4-3 margin, saying that although the new evidence was “worthy of consideration” it would not “probably” produce an acquittal at retrial. Three members of the Court strongly disagreed, writing that “justice demands a new trial for Paul Hildwin” because the new evidence would have provided strong support for his innocence claim and likely caused a jury to have a reasonable doubt about his guilt.

The Court issued this close ruling only after the State explicitly assured the Justices at a 2005 hearing that it would allow a CODIS search once an eligible DNA profile was available from a state-approved laboratory. Such a profile has been available since 2008, the Innocence Project said in legal papers, yet the state continues to oppose the databank search, notwithstanding its earlier promise to the Court.

Hildwin’s attorneys believe that a DNA “hit” from the CODIS databank could produce precisely the additional evidence the Court requires to order a retrial — and could, in fact, avoid the need for a new trial altogether by providing clear proof of his innocence. Florida’s database system, according to government reports, produces “an approximate 50 percent match rate – that is, about half the time, a known sample is linked to a forensic (unknown) sample.”

The Innocence Project also noted in its filing that many of the 254 individuals exonerated through DNA evidence to date involved defendants who had appeared unquestionably guilty in light of the evidence offered against them at trial (including multiple eyewitness identifications, detailed confessions to the crimes, and various non-DNA forensics). In addition, the dozens of DNA exonerations facilitated by CODIS searches over the last decade include many cases in which – as with Hildwin – the defendant had previously failed to secure a retrial based on exclusionary DNA results alone.

Hildwin, now 50 years old and suffering from cancer, is represented in his death row appeal by attorney Martin J. McClain of the law firm McClain & McDermott in Wilton Manors. McClain today filed an appeal before the Florida Supreme Court challenging the constitutionality of Hildwin’s death sentence on various grounds.

Read the full petition to the Florida Supreme Court here.

Media Contact: Emily Whitfield; 212-364-5346;

EWhitfield@innocenceproject.org

Congo renews death sentence on Norwegian mercenaries

Joshua French and Tjostolv Moland face death penalty for a second time after a similar verdict last year was overturned

Two Norwegian ex-soldiers have been sentenced to death for a second time in
Democratic Republic of the Congo by a military tribunal.

Joshua French, 28, who has dual citizenship with Britain and briefly served in the British army, and Tjostolv Moland, 29, were originally found guilty of murder and espionage by a Congolese court last year.

The men, who had been working as private military contractors in other countries and were operating in Congo under murky circumstances, denied shooting dead their driverAbedi Kasongo in May 2009. They claimed bandits killed him.

During the first trial the court also fined Norway $60m (£41m), alleging that the Norwegian men were spies.

The death sentences were upheld on appeal, but in April a military court in the capital Kinshasa overturned the convictions for technical reasons and ordered a retrial with fresh judges.

That took place in the north-eastern city of Kisangani, near where Kasongo was killed. Colonel Pierre Agabu, the prosecutor, said today that French and Moland had again been sentenced to death for murder, attempted murder, criminal association and spying.

The original fine, which was calculated to represent one dollar per Congolese citizen, was also upheld, with the Norwegian government jointly liable. A payment of $4.5m (£3m) was due to Kasongo's widow and his father, the court ruled, with a further $100,000 (£68,000) payable to the Kisangani drivers' association.

French and Moland, who had tried to establish a security company in Uganda early in 2009, crossed the border on motorcycles into eastern Congo, a highly unstable part of the country, in April that year.

Two weeks later Kasongo, who had been hired as their driver, was found dead beside a road. The Norwegians, who fled the scene – fearing for their lives, they said – were arrested separately several days later.

In the original trial, prosecutors claimed that French and Moland were carrying military ID cards at the time of their arrest. They produced a photograph allegedly taken by French that showed Moland grinning widely as he washed blood from Kasongo's Toyota Landcruiser on the day he was killed.

British legal charity Reprieve today described the court proceedings as a "show trial" and alleged the prosecution witnesses were bribed with large sums of money.

"This farce of a trial would be comical if the stakes weren't so tragically high," said Reprieve campaigner Tineke Harris. "Each time the military prosecution changes their theory, the witnesses all obligingly change their story. It is now clear why the DRC's own constitution forbids the military from administering justice."

The case has attracted huge media coverage in Norway and strong criticism of Congo from the Norwegian government. Norway says the men have had no ties to it since 2007 when they served in the elite Telemark battalion.

The Foreign Office said it was disappointed at the latest verdict and would work to ensure the execution was not carried out. In recent years most death sentences issued in Congo have been commuted to life imprisonment.

Reprieve said Moland had been extremely ill in jail after contracting celebral malaria and was delusional during the first trial and appeal. It said French, who had a British father and spent part of his childhood in Margate, was forced to sign a confession after being beaten.