Justice denied for Oscar Grant

John Green and Alessandro Tinonga report on the verdict in the trial of the cop who killed Oscar Grant--and the bitter response in a city with a long history of police violence.

July 9, 2010

As many as 1,000 people gathered in downtown Oakland to protest the verdict for officer Johannes Mehserle on July 8 (Alessandro Tinonga | SW)
A JURY voted to convict the transit police officer who killed an unarmed Oscar Grant III on an Oakland station platform 18 months ago, but of the least serious possible manslaughter charge, leaving Grant's family and their supporters--and the community that Grant called home--bitter and angry.
The jury, without a single African American among its 12 members, deliberated for only six-and-a-half hours before delivering its guilty verdict on the charge of involuntary manslaughter. The white officer, Johannes Mehserle, will spend up to four years in prison--and probably much less.
About 1,000 people--Black, white, young, old--converged on downtown Oakland after the verdict was announced to make it clear they don't believe justice was done.
"Had it been a Black person [shooting a white officer], it would have been life," said Janay Washington, an Oakland high schooler who joined more than 1,000 people at a demonstration after the verdict was announced. "It's an outrage. Can we at least get justice?"
The protests continued into the night, with running battles between demonstrators and police, and some reports of broken windows at buildings in the downtown area.
Mehserle was the first police officer in California to be tried for murder for a shooting committed while on duty, and the jury's vote to convict him is a break from a long history of cops walking free, no matter how brutal their crimes.
But to protesters in Oakland, the involuntary manslaughter conviction was a stark contrast to the evidence that people around the world saw after the killing in the early morning hours of New Year's Day last year--video from at least five sources of Mehserle standing over an unmoving Grant, pulling out a weapon and firing it at point-blank range.
Grant had been dragged off a BART train along with several friends by a group of transit officers that included Mehserle. Witnesses on the crowded platform described the cops acting belligerently as they began to handcuff the youth. A number of passengers used their cell phones to record the incident--the video shows Mehserle helping to hold down Oscar, then standing up, taking his pistol out of his holster, pointing it at Oscar's back, and firing.
The bullet entered Oscar's back, traveled through his body, ricocheted off the concrete floor and punctured his lungs. Grant died several hours later.
Mehserle's lawyers claimed the officer mistook his pistol for a Taser gun he meant to use on Oscar. This story doesn't account for how Mehserle could have confused the two weapons--or even why it was necessary to shoot a man who was laying face down with his arms behind his back. But the jury apparently accepted Mehserle's testimony that the shooting was a mistake, and therefore convicted him of only involuntary manslaughter.
Involuntary manslaughter is a far cry from justice, but Meserhle's conviction is still the first example in recent memory of an on-duty California cop being held accountable for shooting someone. "At least he's not acquitted--this shows there's some penalty," said Jasmine Thana at the rally. "He wouldn't have been charged in the first place unless people stood up in January."
John Burris, a lawyer representing Oscar Grant's family, said the guilty verdict represented a "small victory. But this verdict is not a true representation of what happened to Oscar Grant. This was not an involuntary manslaughter case."
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THE DOWNTOWN protest began minutes after the jury announced its verdict in Los Angeles--where the trial was moved on the grounds that Mehserle couldn't get a "fair trial" in Oakland--and soon swelled to five city blocks, as more and more people reacted in shock and anger.
Emotions at the rally ran from anger to deflation, frustration to determination. The fact that the jury was majority white--with no African Americans and half the jurors claiming police officers as family members--was lost on no one. "It's about racism," said protester Cece Ward. "Most people out here are victims of police--victims of authority."
The turnout after the verdict might have been even larger without the constant fearmongering over the past week by political leaders and the media, who warned of violence and rioting if Mehserle was acquitted or convicted of a lesser charge.
City officials had plenty of riot cops to intimidate protesters and bystanders alike. The city even tried to co-opt the downtown speakout and rally by organizing a counter-event at the same location. But anti-police brutality activists didn't give that a chance to get off the ground.
Speakers battled to be heard over the crowd, sharing personal anecdotes of police brutality, frustration at the injustice system and commitments to continue the struggle. Speakers led chants of "I am Oscar Grant" and "F--- your tears"--the latter a reference both to Mehserle's crying when he was on the witness stand and to city leaders' newfound interest in the Grant case over the past few days.
If politicians truly cared about violence after the verdict, they could have taken a few more positive steps. Eighteen months later, BART police still carry guns to enforce transit system rules. Eighteen months later, there is no independent BART police oversight board. Eighteen months later, all of the systemic racism, police brutality and poverty that sparked rioting when Oscar Grant was laid to rest remain as bad as ever.
Activists will meet next week to coordinate next steps. Oscar's friends and family will be advocating for maximum punishment at Mehserle's upcoming sentencing hearing, pursuing a civil wrongful death suit, and pressing for a federal prosecution for civil rights violations. Meanwhile, the struggle against police violence in Oakland goes on.

What causes people to give false confessions?

After 14 hours of interrogation in a small, windowless room, Kevin Fox simply gave up. He knew he hadn't sexually assaulted or murdered his 3-year-old daughter, but police had rejected his requests for a lawyer and told him they would arrange for inmates to rape him in jail, according to court records.

The distraught father later testified that detectives also screamed at him, showed him a picture of his daughter, bound and gagged with duct tape, and told him that his wife was planning to divorce him, the records show.

Fox finally agreed to a detective's hypothetical account of how his daughter, Riley, died in an accident, thinking investigators would realize that the phony details didn't match up with the evidence, his lawyer said. Instead, he remained in Will County jail for 8 months, released only after DNA evidence excluded him as a suspect. In May, another man was charged with the crime.

What could be a similar story is now unfolding in Lake County, where Jerry Hobbs III, 39, is accused of murdering his 8-year-old daughter and her 9-year-old friend. Hobbs, who had a criminal record, has been in jail five years, in large part because of a confession that emerged after hours of high-pressure interrogation. Prosecutors planned to seek the death penalty in his October trial, even though his DNA did not match semen found on his daughter's body.

Authorities recently matched the DNA with another man accused of rape and robbery in Arlington, Va., offering Hobbs a chance at exoneration and once again raising the possibility that police coerced a suspect to falsely confess.

Both cases raise a question: Why would anyone confess to such horrific crimes — especially involving their own child or loved one — if they didn't commit them? Seemingly unfathomable, it happens far more often than most people believe, experts say.

"The interrogation itself is stressful enough to get innocent people to confess," said Saul Kassin, a psychology professor at John Jay College of Criminal Justice in New York. "But add to that a layer of grief and shock and perhaps even some guilt — 'I should have been there' — and then that the parent is trying like hell to be cooperative because they want the murder of their child solved."

Trauma, lack of sleep and highly manipulative interrogation techniques are a few factors that can cause the most level-headed people to falsely confess to a crime — even one as heinous as a child's murder, according to experts. Researchers believe that false confessions lead to about 25 percent of wrongful convictions, a statistic underscored by the increasingly sophisticated use of DNA evidence.

Over the past two decades, 254 people have been exonerated by DNA evidence, including 17 who were on death row, according to the Innocence Project, a nonprofit legal clinic based at Yeshiva University in New York.

"We know that for certain kinds of people, particularly those with mental illness and mental deficiencies, but other people as well, the psychological intensity of an interrogation can prove absolutely as torturous as physical pain," said Lawrence Marshall, a Stanford University law professor who co-foundedNorthwestern University's Center on Wrongful Convictions.

Confessions carry powerful weight with juries, and, as shown in the Hobbs case, they also strongly influence authorities. In 2008, Lake County Judge Fred Foreman agreed with prosecutors that Hobbs should remain imprisoned without bail, despite the revelation that his DNA did not match the semen found on his daughter's body.

Prosecutors suggested that Hobbs' daughter Laura had gotten the DNA in her body because she was found in a wooded area where people apparently go to have sex — in spite of the fact she was fully clothed.

Lake County prosecutors have not said if they have ruled out Hobbs as a participant in the crime, but they announced they're renewing their investigation in light of the DNA evidence.

In the Fox case, the Will County Sheriff's Department plans to hire an outside firm to evaluate its procedures and determine if they need to be changed.

"Obviously, there were some things that went wrong in this investigation," the sheriff's spokesman, Pat Barry, said. "We are in the process now of vetting a couple of firms … that will come in and review the Fox case for us."

Confessions that are not backed up with corroborating evidence should be viewed as suspect, Marshall said.

"I think what we are seeing right now is there has become an overdependence on confessions," said Marshall, who is appealing the case of Juan Rivera of Waukegan, who in May 2009 was convicted for the third time of the rape and murder of an 11-year-old girl despite DNA evidence that excluded him. Lake County prosecutors suggested the girl was sexually active to undercut the DNA.

While law enforcement agencies have long relied on the "Reid Technique" method of interrogation to elicit confessions, some critics argue it's based on faulty assumptions of deceptive behavior. Investigators are taught how to base their questions and method of interrogation on a suspect's verbal and non-verbal cues and mood, sometimes using a "baiting" approach to elicit confessions.

Even those who believe such techniques are effective in obtaining true confessions say they can be misused by authorities.

"There is a lot of coercion that can happen, short of the (former Chicago police Cmdr. Jon) Burge case where they are torturing someone to get confessions," said Fred Hunter of Hinsdale, a licensed polygraph administrator. Burge, 62, was convicted last month of obstruction of justice and perjury for lying about torturing suspects in a civil case.

Those most vulnerable to overzealous police work often are "throwaway people," said Hunter, referring to suspects who lack education, advocates or resources to represent themselves.

Dr. Robert Galatzer-Levy, a psychiatrist on the faculty of the University of Chicago and the Chicago Institute for Psychoanalysis, said interrogations are designed "not simply to get information," as the police often portray them. Instead, he said, interrogations are "well-thought-through psychological manipulations to get a confession."

Police do that by first developing a rapport with suspects. They then give them their Miranda rights, though in such a way that suspects feel they are being uncooperative if they invoke them. Finally, he said, police confront a suspect, saying they know he committed the crime but offering a way out that acknowledges guilt but to something less heinous.

The stress that comes with the death of a child, as in the cases of Hobbs and Fox, makes it all the worse. In such cases, experts say, it is natural for the police to focus their attention first on the child's parents or siblings. Many murders of children, it turns out, are committed by family members.

"People all say, 'I'd never confess. Not in a million years,'" said Galatzer-Levy. "But it turns out that people who are vigorously interrogated will confess — even if they're innocent. The terrified but rational person might give police a story just to end the interrogation, or because they think it might improve their situation."

Richard Leo of the University of San Francisco law school said no research has been done on whether the death of a family member makes a suspect more susceptible to interrogation. But, he said, "it kind of stands to reason. They're grief-stricken. They're distressed. They've often not gotten a lot of sleep. Those are all conditions that contribute to false confessions."

In the book "True Stories of False Confessions," Rob Warden and Steven A. Drizin of the Center on Wrongful Convictions write that reasons for false confessions range from desperation suspects feel as they endure lengthy interrogations to police exploiting suspects' mental handicaps.

Warden draws parallels between the case of Fox and Hobbs. In May, officials announced DNA matched a sex offender, Scott Eby, who has been charged in Riley Fox's murder.

Fox and Hobbs were accused of killing their children, leaving the two fathers especially distraught and more vulnerable to what Warden called "the emotional and intellectual manipulation that interrogators are taught to use."

Hobbs' interrogation ran for close to 20 hours. Although both confessions were videotaped, the interrogations were not — even though a new law had been signed that required the videotaping of interrogations in murder cases. The law at that point had not gone into effect.

"You can't imagine you'd ever confess to something you didn't do," said Warden. "But at some point people simply lose their will to resist. That's the danger of prolonged interrogation."

What's more, police often have preconceived notions of how a father, say, should react to the death of a child. When a suspect's behavior strays from those notions, police may ratchet up pressure.

"Either you're crying too much or you're not crying enough," said Warden. "Both touch off suspicion. You can't win either way."

Oakland's Verdict

By: Rekia Jibrin

The recent verdict of involuntary manslaughter in the criminal case brought against Johannes Mehserle reveals the duplicitous scandal of the enforcement of law and its participation in institutionalized and violent racism against black and brown people in America. This criminal case is far from a unique story in this country’s history. It is not just about an instance that involves this one police officer and this young African American man; this case is about the terrifying and truthful reality of state brutality and state violence in America that has been legally sanctioned by a line of work that calls itself public protection.  This reality is fact, and it must not be buried behind the scenes of courtrooms dramas, behind the limelight of the police-supported, corporate media frenzy, or amidst exhaustive deliberations about agitators who may pose as outsiders to Oakland’s city. Let’s not get the story twisted: this case reflects a reality about violence in America.  This is not an issue of violence enwrapped in homicide statistics or “stop the violence” scare tactics.  No.  This violence, this extralegal violence, is and has been a political reality that our society and city must contend with.

What function does the black body have in our political democracy? What function does handcuffing a young black man to a stop sign in broad daylight, and asking him to lift up his nuts while being searched or habitually detained on the street, have within a “free and liberal” society?  What does that image impress upon our psyche public? What becomes normalized to passersby, tourists, residents, students and children?  Imagine walking down a neighborhood street in West Oakland.  Police officers pull up to a home on the street and position themselves, pointing their weapons.  Out of the home walks a four-year-old little black boy with his hands up. What have we done?  Each day, children, teenagers, mothers and fathers walk out of their homes, with their hands up in the air, and still they face the threat of death. As BART police overtly demonstrated their pre-emptive fear of the black and brown youths’ on that BART platform, what opportunity was afforded to the youths to articulate their fear of the violent presence of the enforcers of the law?  Who could they have gone to?  And who would have listened to them? What honest answer can you offer?

According to Oakland’s December 11, 2008 Citizens’ Police Review Board’s Policy Forum on Officer-Involved Shootings, an estimated 45 reported officer-involved shootings occurred from 2004-2008 in Oakland.  Victims’ ages ranged from 16-50 years old; of these victims, 36 were African American males, 7 were Hispanic males, and the remaining 2 were an Asian male and an African American female.  All of the shootings were “deemed to be in compliance with Departmental policy.”  In 2008/2009 the Oakland City Attorney’s office paid out $3,755,698 for documented claims and lawsuits on police matters.  These payouts were founded in claims and litigation about excessive police force and fatal/non-fatal police shootings. These claims do not reflect the thousands of complaints brought to the Oakland Police Department’s Internal Affairs Department, nor does it reflect experiences of harassment, violence and racism of residents at the hands of the police that go undocumented.

Some residents of Oakland believe that black and brown people engage in criminal activity more than other groups of people and they believe that black and brown people deserve to be apprehended by police violence.  These residents gravitate towards Neighborhood Watch Groups that celebrate gentrification’s development while living their lives in fear within their homes.  These residents need to take a hard look at the institutional racism and ideological racism that has played them and shaped their ignorance.  Crime does pay—it keeps the police paid, it keeps prison contractors paid, and it eclipses the role of authorities who allow the sham of police as a legitimate response to public safety to breed even more racial divisions along class lines.  Crime and gang hysterias, police layoffs, and (declining) homicide statistics have intentionally veiled our senses to the inordinate political power of a police union who can take public stands against city officials, post bail for Johannes Mehserle, and pressure the pockets of city councilors who allow our city to run as a police state.  We live in a city that spends more than half of its budget on police (police and fire departments account for 85 percent of the money the city has to spend)—evidence enough to conceive of Oakland as a police state.

Furthermore, the daily socialization of black and brown people by police stops, searches, and harassment generates an overabundance of black and brown people on paperwork.  While these interactions are both financially and psychologically disruptive to the everyday lives of people who are criminalized based on their skin culture, these interactions also act as rhetorical justification to normalize policing as a legitimate response to public fear of black and brown people.  Poor black and brown people present an ontological dilemma, a dilemma of being, to the scandal of the law—the law designates differences between poor black and brown people and the rest of the public through racist presumptions of criminality and contradictory claims of public safety as an assurance towards a racial democracy.  The “criminal irrationality” of black and brown people thus necessitates the irrational exercise of fatal police power which then yields black death just so that white American life can continue to live.  Already confined and silenced to the criminality of their skin, black and brown people confront the legality of their illegality when they meet the police.  The police embody the reminder of that continuing reality of violence, and the police come to be seen as a criminal and racist threat to community well being.

On July 8, 2010, jurors decided that the ex-BART police officer who shot unarmed Oscar Grant, III, in the back, on the Fruitvale BART platform on New Year's Day 2009 in Oakland, California had no intention of killing Grant. Whereas a murder conviction demands establishing an intent to kill, jurors believed that Mehserle was criminally negligent and acted with "reckless disregard for human life." While this was the first documented case in California history in which a police officer was charged with murder for an on-duty shooting, but it is far from the first time that a police officer has murdered a black man while on-duty.  Jurors, the media, nonprofits, city and police authorities do not acknowledge that Johannes Mehserle represents a workforce of police officers who professionally presume criminality within the blackness of one’s skin.  This assumption of the criminality of one’s black skin, allows police violence to become police negligence, a matter of mere oversight or of a lack of proper training.  And so the scandal continues and the “pain” of racial tension that police chief Anthony Batts urges us to talk about resides romanticized in the memory of a dream unfulfilled, rather than in the exposure of the egregious ravages of racists violence that Batts’ officers exercise on poor, residents of Oakland.

To think that police violence against the black body is unintentional police negligence is to believe the lie that racism is over, or that the Klu Klux Klan is an emblematic vestige of the past, or that the anti-blackness that manifests as anti-poorness is a construction of the past in a post-racial Obama era.  To believe such a farce is to fool yourself and to deny that anti-blackness is still made in America, made under the “legality” of the law. The extra-legal practice of gratuitous violence on black and brown people in America has served its function, and it continues to do so.  This racial violence exploits vulnerable people in their communities hastening their death; this institutionalized violence occurs without fear of political consequence or moral shame. Every case of violence, excessive force, misconduct, and corruption on the part of the police is emblematic of the historical and current reality of political violence in our cities.  It is precisely why police authorities, city, state, and federal authorities must not condone such violence and must publicly denounce and prosecute its criminality, as it threatens the legitimacy of any semblance of a democracy.  Instead, Oakland is met with city, police, and nonprofit authorities who make irresponsible, criminal decisions based on political fears of delegitimizing the police force and its police union.

The verdict on July 8th 2010 was condoned, defended, and legitimized by city, nonprofit, and court authorities who in actuality neglect to serve the representative functions of their jobs.  To defend the extralegal execution of police violence over the poor is to legitimize and perpetuate the terrifying and truthful reality of gratuitous state violence against black and brown bodies.  To perpetuate this history amidst current city politics is to condone racism, institutional racism and to lynch any semblance of a racial democracy in America. To condone such violence is to ensure that racial violence will also continue in America. 

Calif. jury awards $1.7M to TV news camerawoman

The Associated Press 

LOS ANGELES -- A Los Angeles jury has awarded $1.7 million to a television news camera operator who said she was brutalized by police during a 2007 May Day protest.

Jurors awarded the damages on Friday to KTTV-TV camerawoman Patricia Ballaz. The panel also awarded $39,000 to KPPC radio reporter Patricia Nazario but failed to reach a verdict for KTTV reporter Christina Gonzalez.

The journalists claimed police used excessive force on them as officers clashed with immigration protesters at MacArthur Park.

Attorneys for the city argued that the journalists were only shoved after they refused to get out of the way and fought police.

Last year, the city agreed to pay nearly $13 million to settle lawsuits filed by attendees who said they were injured or mistreated during the rally. 

Wrongfully convicted veteran could get $6.3 million from city

By Maurice Possley and Carlos Sadovi, Tribune reporters

A man who spent 25 years behind bars for a brutal rape he did not commit stands to get $6.3 million from the city of Chicago under a legal settlement the City Council Finance Committee recommended today.

If the full City Council approves Wednesday, the money will go to Jerry Miller, who was an honorably discharged military veteran with a good work record and no criminal background when he was arrested at age 23 on what turned out to be a mistaken witness identification.

Miller was released from prison in 2006. While on parole in 2007, DNA testing determined he did not commit the crime. He has since been pardoned and sued the city in civil court.

That same DNA evidence indicated the crime was committed by a serial rapist, Robert Weeks, who is serving a life sentence but could not be prosecuted for the 1981 rape because the statute of limitations had long since expired.

Miller alleged that the Chicago police crime lab withheld evidence that would have cleared him even before trial.

“It’s another one of those sad tales of how sometimes the criminal justice system does not work for all those who come into it,” said Ald. Edward Burke, 14th, the committee chairman.

At Miller’s trial for the September 1981 beating, robbery and rape, two garage attendants working where the attack took place identified Miller as the offender, Burke said. The victim testified that he was possibly her attacker.

“Mr. Miller was convicted largely on the basis of unequivocal witness identification,” said attorney Karen Seimetz, first assistant to the city’s top lawyer. “Unfortunately, he very much resembled the actual perpetrator of the crime. And of course, back in 1981 there was no DNA testing.”

But Chicago police evidence technician Raymond Lenz reported that tests of semen on the victim’s slip were inconclusive, Seimetz said. A highly regarded forensic scientist prepared to testify for Miller if his case went to trial determined that test, for blood types before DNA testing was available, should have ruled out Miller.

John Stainthorp, Millers’ attorney, said he was prepared to argue that Lenz had not made a simple mistake.

“There was misconduct,” he said. “There was a culture (at the crime lab) of not reporting results unless they helped the prosecution, unless they went along with the police theory.”

The department has since disbanded its crime lab and uses technicians from the crime lab run by Illinois State Police.
Miller sought $27 million in the case.  “Obviously, we feel great sympathy for the plaintiff in this case, and I think probably the concern was that a jury would feel great sympathy for him as well,” Seimetz said.
Here is an April 2007 story about the case from the Tribune archives:
    Jerry Miller could be angry that a rape victim misidentified him, or that he spent a quarter of a century in prison for a crime he did not commit. He could be bitter that he was paroled as a registered sex offender, forced to wear an electronic monitoring ankle bracelet that signaled his every move.

    But Miller, 48, says he is "blessed."Since his release in March 2006, he moved in with a cousin in the south suburbs and got two jobs, one at a bus service for the disabled and one as a cook in a Dolton barbecue joint.

    At the same time, he continued fighting to prove his innocence, a battle he has finally won.

    On Monday, prosecutors will ask a Cook County Circuit judge to erase Miller's conviction and sentence because recent DNA tests on evidence have excluded him as the attacker.

    "I am not angry. I am thankful and I feel proud of myself," Miller said Friday in an interview at an office near the Zion Christian Center in Dolton, where he attends weekly services. "I accomplished what I set out to do -- to show that they lied on me .... I made it. I'm not swept under the rug anymore."

    Miller's will be the 200th exoneration in the nation based on DNA evidence, according to the Innocence Project, a non-profit legal clinic in New York.

    It will be the 27th DNA exoneration in Illinois.

    Gary Dotson became one of the first in the nation in 1989, when DNA tests showed he had not committed a rape for which he had been convicted in a Cook County court -- a case that hung over his head years after his accuser recanted.

    Since then, the use of DNA to exonerate the wrongly accused has exposed flaws in the criminal justice system and led to myriad changes, such as videotaping of interrogations and overhauls of lineup procedures.

    An analysis of the 200 exonerations, performed by the Innocence Project, shows that three out of every four wrongful convictions were marked by mistaken eyewitness identification, including Miller's case.

    Crime lab errors or faulty science were present in 65 percent of the cases, according to the analysis.

    The defendants in one out of every four cases were said to have confessed to the crime, although the DNA tests later proved their innocence.

  
Erasing an error

    Cook County prosecutors, joined by Miller's attorneys, assistant public defender William Wolf, and Barry Scheck and Peter Neufeld, founders of the Innocence Project, filed a motion Friday saying they would appear in court Monday morning to request that Miller's conviction be vacated.

    On Sept. 16, 1981, the 44-year-old victim went to the roof of a parking garage at 506 N. Rush St. at about 9:30 p.m., heading home from work. According to evidence at Miller's trial, the woman was about to get into her car when a man came up behind her and shoved her inside.

    The man threatened to kill her if she looked at him, she testified. She said the man beat her, robbed her, then forced her into the back seat and raped her. The attacker then forced her into the trunk and tried to drive out of the parking garage, according to testimony.

    A parking lot attendant recognized the car when it pulled up to the exit and asked the driver if it was his. The man said it was, but the attendant was suspicious and ordered him to back up. When another attendant approached, the man got out of the car and fled.

    The victim began banging on the lid of the trunk. The attendants heard her cries, found a set of keys on the floor of the car and rescued the woman, according to their testimony.

    Shown an array of photos at a hospital, the victim said she could not positively identify her attacker. The parking lot attendants and the victim provided a description that was used to create a composite sketch.

  
Zeroing in on a suspect

    Miller became a suspect because, days before the crime, Chicago Police Officer Kenneth Fligelman had stopped him in the 500 block of West Armitage Avenue for allegedly "looking" into parked cars, according to court records. Miller was not arrested at the time.

    When the composite sketch was circulated in the Police Department, Fligelman believed it looked like Miller and brought him in for a lineup, where the two attendants identified him as the attacker.

    At the time, Miller had never been convicted of a crime and he was working as a cook after completing a 31/2-year hitch in the Army.

    Now retired, Fligelman said in an interview, "He matched the composite. My partner and I, when we saw the composite at roll call, we remembered him."

    At trial, the attendants identified Miller. The victim said she thought Miller looked like her attacker, even though the attacker was described as having a few days' growth of facial hair and Miller had a full goatee.

    Miller testified that he was not involved and at the time of the crime was home watching a championship boxing match between Tommy Hearns and Sugar Ray Leonard.

  
'I was devastated'

    The jury found him guilty of rape, robbery, aggravated kidnapping and aggravated battery. Judge Thomas Maloney sentenced him to 45 years in prison.

  

    "I was devastated," Miller recalled. "And the judge -- he told me the evidence was overwhelming. I was very depressed."

    Shortly after arriving at Stateville Correctional Center near Joliet, Miller decided that he had to find a way to "improve myself. I went to school. At first, I got my GED. Then I took vocational classes in small engine repair and I got a job as a mechanic on the [prison] grounds crew ... repairing lawn mowers and tractors."

    At the same time, he battled loneliness, as many of his family members and friends did not come to visit him in prison.

    "They had me so guilty," Miller said. "I asked, 'Why me?' You lose hope every day; you have to find a way to gain hope every day. I had found God as a boy. Now I found God in my cell. You open your eyes and you can see there's something here that's more than just me."

    At the urging of his mother, Miller began to read everything he could get his hands on.

    "Mostly, though, it was spiritual books and philosophy," he said. "I missed joy. I missed happiness. It was very painful, being locked up every night. But I decided I didn't want the pain, the disappointment, the hurt. I just didn't want it no more."

  
'Life is to be lived'

    Miller said he became a better man.

    "I matured. I came to understand life is to be lived no matter where you are," he said. He credits his faith in God with helping him cope in prison, along with a desire to educate himself and "make something of myself. This [exoneration] is the hand of God."

    Miller said he wrote hundreds of letters to lawyers and others seeking help. His letter to the Innocence Project, affiliated with the Benjamin N. Cardozo School of Law at Yeshiva University, ultimately triggered the DNA testing.

    Mark Ertler, deputy supervisor of the Cook County state's attorney's office DNA Review Unit, said the Innocence Project reached out last year on behalf of Miller. Ertler located the evidence in the case, including the victim's half slip, which contained the attacker's DNA.

    "This case is a good example of what the DNA unit was intended to do," Ertler said. He said that although the victim has declined to speak publicly, "It was never her intention to have someone who is innocent be prosecuted."

    After Miller was excluded by the DNA tests, the unknown DNA profile was submitted to the FBI's convicted offender database and a match was found, Wolf said. Prosecutors have not identified the suspect whose DNA was a match. But because the database was formed well after the 1981 crime, the presence of the real attacker means he not only escaped prosecution for the 1981 crime, but he committed at least one other crime later.

  
Help from relatives, friends

    Miller's cousin, Karen Hicks, owner of Yes We Can transportation service, which transports disabled people and others to medical appointments and therapy, said she took Miller into her home after he was released. She said Miller "teaches me patience and to pay attention to people. And I am going to be there all the way for him."

    Meanwhile, Miller has relearned how to drive a car, use an ATM, operate a gas pump, and, for the first time, learned to use a cell phone.

    "I've got emotional stuff to deal with -- how to deal with women," he said. "I've had a lot of emotions locked up and I've got friends who are helping me."

    Fligelman, told that Miller was exonerated, said, "I have always wondered how people can pick someone out of a lineup when things happen so fast. It's unfortunate he had to spend that kind of time in jail if he didn't do it. ... That kind of thing churns my stomach. ... Who knows how many other cases like this might be out there?"

$175,000 settlement includes training for Denver police

By The Denver Post

The city of Denver will make sure police get proper training on how to enforce restraining orders in the wake of a $175,000 payout to settle a wrongful arrest lawsuit, officials said Monday.

Mel Thompson, the city's deputy manager of safety, told the City Council that all officers will receive ongoing training on the proper protocol.
The council on Monday agreed to pay $175,000 to settle a federal lawsuit filed on behalf of Amy Shroff. Officer Frank Spellman mistakenly arrested Shroff on Feb. 23, 2006, for violating a restraining order that was supposed to protect her.
The order barred her former boyfriend from coming within 100 yards of Shroff and was not reciprocal, the city now says. Spellman arrested Shroff after she complained to police that her former boyfriend used his truck to block her from exiting the parking lot of the District 3 police station.
Shroff spent a night in jail. Her 4-month-old baby became ill because she had a medical condition that prevented her from digesting formula. Christopher Osher, The Denver Post

City police lose brutality case

Jury awards 2 men $150,000 after arrests, scuffle

By Danielle M. Horn TELEGRAM & GAZETTE STAFF

WORCESTER —  A federal jury has awarded two men $150,000 after finding that police falsely arrested them and used excessive force against them outside a gay nightclub in 2001.

The verdict, which means the city will pay both compensatory and punitive damages for the actions of four Worcester police officers, represents the second time in 17 years that a jury has ruled against Worcester police in a brutality case.

City lawyers, who more often than not have been victorious when such civil cases reach a jury, were disappointed by the verdict and say they will file post-trial motions to address “legal deficiencies” in the trial. The plaintiffs, meanwhile, expressed relief at the end of a nearly decade-old case with bizarre twists and turns.

“I have great relief and the feeling that justice has prevailed,” said Richard N. Tousignant of Brookline outside Judge F. Dennis Saylor IV’s courtroom in U.S. District Court. “I’ve learned a lot of people have suffered at the hands of the Worcester Police Department, and we had an attorney who believed in our cause that was willing to go ahead and fight.”

Mr. Tousignant, formerly of Gardner, and Brandon S. Blair, a California resident who used to live in Boston, saw their case upheld after dismissals and two changes of counsel: the first after lawyer W. Theodore Harris was suspended from practice for an unrelated case, and the second after their new lawyer, Stephen M. Campobasso, killed his fiancée and himself.

In 2007, Judge Saylor — the same justice who oversaw the jury trial — dismissed the case after city lawyers argued police had been improperly served with papers in the suit. Then the appeals court upheld the dismissal. In 2008, however, the U.S. Circuit Court of Appeals resurrected the case when it overturned Judge Saylor’s decision.

After a weeklong trial and 90 minutes of deliberation, an eight-member jury yesterday found that Officers Daniel Dowd, James Moore, Jose Ortiz and Peter Towler had falsely arrested and used excessive force against Mr. Tousignant and Mr. Blair when they responded Dec. 23, 2001, to a fight at the now-closed A-Men club on Commercial Street.

Police charged both men with assaulting a police officer and resisting arrest. Soon after a jury in 2002 found Mr. Tousignant and Mr. Blair not guilty of the charges, the men filed suit in U.S. District Court.

In addition to the four officers, the case initially named as defendants the city, then-Police Chief James M. Gallagher, Officers Thomas Dowd, Thomas Falcone, Jonathan Thomas, Thomas C. Duffy, and then-Lt. Edward McGinn. Mr. Tousignant and Mr. Blair later dismissed them as defendants.

According to a summary of evidence from lawyer Michael L. Altman of Boston, Mr. Tousignant yelled at an officer to stop after seeing him “kick and pummel” two bar patrons. Police told Mr. Tousignant to leave the bar or be arrested. When he and Mr. Blair went to his car, a police vehicle prevented them from leaving. They talked to police about moving the cruiser, and Mr. Blair said he wanted to file a complaint over what they saw inside the club. One officer then signaled to others, who reportedly knocked Mr. Blair and Mr. Tousignant to the ground. Mr. Tousignant hurt his face and elbow, and had his face pounded to the pavement several times.

City solicitors, however, said in a press release yesterday that Mr. Tousignant became belligerent after watching police arrest a customer. After several exchanges with police, he started grabbing people outside of the club, inciting them to “get the police!” When officers started to arrest Mr. Tousignant, Mr. Blair allegedly jumped on one of the officers.

Both sides agreed the men received minor physical wounds: Mr. Blair had scrapes on his knees and face while Mr. Tousignant had a small scrape on his face. Mr. Altman alleged Mr. Tousignant and Mr. Blair also suffered emotionally.

The city is now responsible for paying $90,000 in damages related to the false arrest claim and $60,000 for excessive force. The jury award excludes yet-to-be-calculated legal fees Mr. Tousignant and Mr. Blair’s lawyers will pursue.

Included in the jury’s $150,000 assessment of damages were punitive damages totaling $45,000 — $15,000 for each officer except Officer Dowd.

City Solicitor David Moore thought it noteworthy that the majority of damages were related to the false arrest.

“In the jury’s mind, the fact that police arrested these guys was twice as important as any excessive force they saw,” he said.

Since 1993, seven Worcester police brutality cases have progressed to a full jury trial. Police won five of them, said Mr. Moore, noting that lawyers generally refuse to settle out of court when they feel they have a strong case.

“We did think we had a strong defense in this case, and that the officers were justified,” Mr. Moore said.

The last jury trial for a civil suit that Mr. Moore could remember police losing was in 1993, when a federal jury awarded $90,000 (not including legal fees) to city resident Joseph F. Consolo III, whose lawyers argued police were indifferent to his medical needs when he was arrested on a drunken driving charge.