Thursday’s Quick Clicks…

Exoneration and Freedom for Evin King in Ohio

Today, prosecutors in Cuyahoga County (Cleveland)  vacated the conviction of long-time Ohio Innocence Project client Evin King.  King was convicted in 1995 of murdering his girlfriend despite no direct evidence of guilt (eyewitness or forensic).  He always maintained his innocence, from arrest and trial and then throughout his 23 years of incarceration.

When he is released, which will hopefully be later this week, King will be the 25th person the OIP has freed on grounds of innocence since its founding in 2003.  Together the 25 innocent Ohioans spent more than 470 years in prison for crimes they didn’t commit.


Evin King prison photo

DNA testing confirmed that the semen found in the victim’s vaginal cavity after the attacked matched male skin cells found under her fingernails (a hand-to-hand struggle appeared to have taken place during the attack, as the victim was strangled).  This male DNA in both locations did NOT match Evin King, but rather, an unknown male.
[Watch this moving video of Assistant Clinical Professor Jennifer Bergeron informing Evin King, in prison, that he is about to regain his freedom after 23 years in prison for a murder he didn’t commit…]
Prosecutors had for years failed to respond to King’s motions for relief, even after the exclusionary DNA test results were obtained.  And the trial court sat on King’s post-conviction motions for nearly a year-and-a-half before denying relief.  Fortunately, the 8th District Court of Appeals reversed the trial court’s decision last year and sent the case back to the trial court for a hearing, while specifically observing that the DNA evidence supports King’s innocence claim.  On Friday, the OIP learned that after newly-elected prosecutor Michael O’Malley took office in January, he put new prosecutors on the case to look into it with a fresh eye.  When O’Malley was later informed of the details of King’s case from these prosecutors, he ordered that King’s conviction be overturned and that he be released.
OIP Assistant Clinical Professor Jennifer Bergeron has represented King for many years, as did OIP staff attorney and Ohio Public Defender attorney Carrie Wood (now at the Cincinnati Public Defender’s Office).  OIP student fellows on the case include Taylor Freed, Katie Wilkin, Mallorie Thomas, Joe Wambaugh, Bryant Stayer, Steve Kelly, Morgan Keilholz, Jon Walker, Scott Leaman, Thomas Styslinger, John Markus, and Julie Payne.  The Ohio Public Defenders Office, particularly Kris Haines, worked on King’s case as well for many years.  King’s case is another example of the importance of determination and perseverance, as Bergeron, Wood, Haines, and the students never gave up even though at times King’s prospects appeared bleak given the initial stiff resistance of the trial court and the prosecutors.
OIP co-founder and director Mark Godsey said, “While the initial delay in obtaining justice for Mr. King is disturbing, Michael O’Malley and the Cuyahoga County Prosecutor’s Office deserve credit for turning this case around and correcting an injustice.  As we have seen in other counties with other cases, prosecutors far too often fight back hard against an exoneration even when the evidence of innocence is strong.  But in several past cases in Cuyahoga County, and today with Evin King’s case, the prosecutors in Cleveland put justice above winning.  O’Malley’s involvement in the case since his recent election, along with his decision to put new prosecutors on the case, may have been the pivotal factor that secured freedom for an innocent man, and we are thankful for his heroic intervention.”

Jack McCullough, Exonerated, Sues Prosecutors for “Pervasive Misconduct”

We’ve reported about Jack McCullough on this blog several times previously. See here, here, here, and here.

Prior to having his conviction overturned and being exonerated, this case was touted as the “oldest cold case ever solved.”

It will be interesting to see where this suit goes, since prosecutors are supposed to have absolute immunity to civil suit for actions taken while pursuing their duties as prosecutor. They can, however, be held responsible for criminal actions.

See the CNN story here.


Blood test for Shaken Baby Syndrome?

From the Blind Injustice Facebook group:

Blood test for shaken baby syndrome? I would sure like to know more about this. History shows that far too often, in the rush for answers, these newly-developed theories or tests are put into use before they are adequately tested in a controlled environment that considers other factors that could lead to the same blood test results. And that leads to wrongful convictions. If the 2009 National Academy of Sciences report on forensic means anything, it means that we have to be very careful with claims like this…

Article about alleged blood test here.

Weekend Quick Clicks

  • Newspaper articles focuses on cost to taxpayers of “shoddy” and “reckless” police work that led to a wrongful conviction.   That’s the kind of coverage the public needs to see more of–the cost of wrongful conviction to their own pocketbooks, because the cost to the public is high in a variety of ways.
  • One year after release, Keith Harward travels country to point out failures of forensic science, help the wrongly convicted
  • New exoneree compensation law in Michigan provides $50k for each year behind bars

Friday’s Quick Clicks…

Today’s Widespread Use of Pre-Trial DNA Testing Won’t End Wrongful Convictions


As we enter an era in which DNA evidence is routinely used in criminal investigations, errors that led to wrongful convictions—including mistakes later corrected with DNA tests—may seem to be fading into history. This, however, isn’t true, says law and criminal justice professor Daniel Medwed, who edited the book, Wrongful Convictions and the DNA Revolution, which was published last month.

Many of the underlying issues that plagued the U.S. criminal justice system before DNA evidence rose to the fore still exist, he says, and will continue to produce flawed convictions unless they’re remedied.

Here, Medwed explores some of those procedural deficiencies as well as the deeply rooted sense of justice that animates his work.

Why do wrongful convictions occur, and what are some of the factors that lead to convicting an innocent person?

The phrase “wrongful convictions” could encompass a range of flawed convictions. Yet the concept typically refers to the case of a factually innocent person: Someone who simply didn’t commit the crime for which she was convicted. I think innocence cases largely derive from good-faith mistakes rather than malevolence on the part of, say, police or prosecutors. Those mistakes include eyewitnesses who simply get it wrong; zealous prosecutors who can’t look objectively at contrary evidence because of tunnel vision; suspects who falsely confess to crimes due to cognitive deficits; defense lawyers who are overworked and underpaid; and reliance on forensic “science” that lacks sufficient grounding in the scientific method.

In Wrongful Convictions and the DNA Revolution, you examine what we’ve learned after 25 years of exonerating innocent prisoners through DNA evidence. What are those lessons?

We’ve learned about the substantive factors that contribute to wrongful convictions, as mentioned earlier, but we’ve also unearthed the procedural deficiencies in our system. The more than 300 documented exonerations of innocent prisoners through post-conviction DNA tests from 1989 to 2014 show that the traditional mechanisms of error correction in our system are insufficient. The direct appeal (in which a defendant challenges a criminal conviction secured at the trial level to a higher court), is ill-suited to address errors based in fact as opposed to law. And classic “collateral” remedies, such as habeas corpus, are replete with statutes of limitations and other procedural hurdles too high even for the innocent to clear. Going forward, we need to address both the substantive and the procedural flaws that can yield miscarriages of justice.

What has motivated you to study wrongful convictions and DNA evidence, and what inspires you to keep studying it?

First, inspiration comes from deeply-held personal beliefs. In my view, the hallmark of a civilized society is the extent to which we protect those in the weakest position to defend themselves—most notably, criminal suspects facing the potentially massive power of the government. All too often, criminal suspects are people of color with limited financial resources. This dynamic not infrequently produces disturbing outcomes for the individual, and sometimes results in the conviction of an innocent person. Imagine what it must be like to have the system fail you so dramatically, to have your cries of innocence fall on deaf, cynical ears. Thinking about that provides all the motivation I need.

Second, I feel as if we’re at a unique stage in history. DNA testing is now commonly used at the front end of the criminal process to weed out the innocent before a case even gets to trial. That means post-conviction DNA exonerations of inmates will inevitably dwindle to almost nothing; many of the DNA cases that generate headlines concern prisoners convicted years ago. But a decline in DNA exonerations will not signify that the system has become error-proof. Rather, the factors that initially gave rise to those  will remain and infect criminal cases that lack biological evidence suitable for DNA testing at all. Only an estimated 10 to 20 percent of criminal cases have testable biological evidence at all; what’s more, that  is often lost, destroyed, or degraded over time. So, I think we need to capitalize on the lessons learned from the DNA era to reform the underlying sources of error for all cases. And we need to do this before the rate of DNA exonerations wanes too much and the public gets the misimpression that the innocence problem is fixed.


Indigenous Injustice Again – Conviction Overturned in Australia

imagesI’ve written before about the many injustices that the Indigenous people of Australia face when caught up in the criminal justice system (for example see here…. and here…. and here ). I’ve also had occasion to write about the flawed investigative techniques of Australian police officers (see here… ). Both issues combined to see the wrongful conviction of a young Aboriginal man, convicted of the 2010 manslaughter of 21 yr old Josh Warnecke. However, justice has finally been done with his wrongful conviction overturned after over four years in prison.

Gene Gibson had given police a confession – induced by false evidence – when he was intellectually incapable of understanding the legal process. Gibson had been interviewed without an interpreter (despite having little English language) and no lawyer present. Gibson retracted his confession but was still convicted. He was supported in his efforts to win his freedom by the mother of the victim (who claims to feel ‘hoodwinked’ by the police), and some of Australia’s best legal professionals, working for free.

The Police Commissioner is planning to meet with Gibson after his release to personally apologise. In an earlier investigation into the police handling of the case, a scathing report found the problems with the case were a symptom of wider “failures and weaknesses” in the Western Australian Police handling of major cases. A total of eleven police officers face disciplinary action over their handling of the case.

Read more here:

WA Court of Appeal overturns Gene Gibson conviction for manslaughter of Josh Warneke

Gene Gibson’s manslaughter conviction for Josh Warneke killing thrown out

and earlier reports from 2015 on the police disciplinary action:

WA police stood aside over arrest of Aboriginal man charged with murder

Wednesday’s Quick Clicks…

  • Man exonerated and set free in Australia after finding of “unsafe” confession
  • Jeff Sessions and the odds of imprisoning innocents
  • New England Innocence Project client Fred Weichel was granted a new trial Monday. Judge Raymond Veary found that prosecutors failed to give the defense a police report suggesting an alternate perpetrator. The only evidence against Weichel was an eyewitness who identified him as the shooter (said eyewitness had at the time just finished a 6 pack of beer and was 180 feet away, at night.)  Click here for decision.

New York passes massive innocence reform bill…

From The Innocence Project:

(Albany, NY — April 10, 2017) – The New York Legislature has passed the FY18 budget that incorporated reforms which will greatly reduce wrongful convictions. Specifically, these changes will mandate law enforcement to record interrogations and adopt standardized best practices for conducting police lineups, and respective safeguards to prevent false confessions and eyewitness misidentifications.

“We applaud lawmakers in Albany for taking a tremendous step forward in protecting New Yorkers from wrongful convictions,” said Barry Scheck, co-director of the Innocence Project, which is affiliated with Cardozo School of Law. “I want to especially thank the governor for sticking by these key reforms right through the end of this process, and Assemblyman Joe Lentol for championing the wrongful conviction bill over the past 10 years.”

“The provisions mandating the recording of interrogations are some of the most stringent in the country, which we know will makes a huge difference in preventing false confessions,” said Peter Neufeld, co-director of the Innocence Project. “The new rules for identification procedures, which require that the lineups be conducted by an officer that is unaware of the identity of the suspect, include the most critical reforms. These changes will immediately make a tremendous difference in establishing a reliable and accurate criminal justice system.”

There have been 224 wrongful convictions overturned in New York. In the 30 that have DNA-based evidence, misidentification or false confession played roles in all of them. This ultimately means that every time someone is wrongfully convicted and incarcerated, the person who committed the crime went free, posing a threat to public safety and committing more crimes.

“This has been a long time coming for those of us who have suffered the horror of being imprisoned for a crime someone else committed. No financial settlement or words can replace the decades stolen from us and our families. However, knowing we have finally changed New York law gives us some solace and hope for the future,” said Yusef Salaam, a member of the Central Park Five and now an advocate for interrogation reform.

“We have worked over the years to make sure that what happened to us 28 years ago doesn’t happen to anyone else. It’s incredible to know we finally have made a difference, and maybe our conviction, as terrible as it was, has some meaning,” said Raymond Santana, also a Central Park Five exoneree and New York advocate.

Kevin Richardson, also exonerated of the notorious Central Park jogger rape case, and now a criminal justice advocate added, “If this had been law when we were interrogated, we may have never seen the inside of a prison, but now we can say, these long–awaited changes shows New York’s commitment to preventing the crime of putting innocent people behind bars and allowing the guilty to remain free.”

Rebecca Brown, policy director for the Innocence Project added, “Getting this critical legislation passed wouldn’t have been possible without the help of many people, but especially New York exonerees who never missed an opportunity to explain to lawmakers why these reforms are needed to prevent other people from being wrongly convicted.”

New York has 35 exoneration cases that involved false confessions and 76 where witness misidentification was a factor. If electronic recording of entire custodial interrogations had already been adopted, these numbers would likely be much lower. Recording is the most commonly recommended safeguard against wrongful convictions stemming from false confessions. It deters against coercive or illegal interrogation practices and alerts investigators, judges and jurors if suspects have mental illness, intellectual disabilities or other vulnerabilities that make them more susceptible to false confessions.

The U.S. Department of Justice, National Academy of Sciences and International Association of Chiefs of Police all recommend identification best practices—which includes using a “blind administrator” who is unaware of the suspect’s identity to conduct a lineup and therefore unable to provide unintentional cues—for reducing the risk of eyewitness misidentification.

“We applaud the governor, the legislative leaders and the entire legislature for passing this law to address wrongful convictions, by requiring video recording of custodial interrogations involving serious crimes and reforming eyewitness identification procedures—a long-standing legislative priority of the New York State Bar Association,” New York State Bar Association President Claire P. Gutekunst commented. “The new law is a positive step toward addressing wrongful convictions and rebuilding public trust and confidence in New York’s criminal justice system. It is essential to ensure that those who are innocent of crimes remain free and that the guilty are not free to commit more crimes. Wrongful convictions erode that fundamental tenet of our society.”

“Today, we embrace the passage of the New York Budget. In 2008, I first testified for the passage of legislation that required the electronic recording of interrogations.  Year after year, when called upon, I testified before the senate, assembly, city council—anywhere my voice could be heard.  Hopefully, from this day forward, interrogations will be recorded and we can avoid as many wrongful convictions as possible,” said Marty Tankleff, a New York exoneree, attorney and advocate.

Judge Jonathan Lippman, Chief Judge of the New York Court of Appeals remarked: “I could not be more delighted that the wrongful conviction legislation for which we have fought for so long has finally passed. I salute the Innocence Project for its stellar leadership and unswerving commitment to ensuring that this day would come to pass. The work of the Innocence Project and the court system’s own Justice Task Force paved the way for this monumental achievement. Today, New York moves one step closer to making the ideal of equal justice a reality each and every day in our state.”

New York has now joined 20 additional states that employ the blind administration of lineups and is 1 of 22 states that require the recording of interrogations.

This critical budget bill had recently gained strong support from the New York Hotel Trades Council and their President Peter Ward, placing their efforts behind what has been a decade-long advocacy campaign for the Innocence Project.

Many players have helped see this bill to fruition and it would not have been possible without the help of the New York State Bar Association and former president Glenn Lau-Kee;  Peter Ward and the New York Hotel Trades Council; Families of the Wrongfully Convicted and Lonnie Soury;  Kevin Richardson, Yusef Salaam, Raymond Santana, Jarrett Adams, Sharonne Salaam, Marty Tankleff, Jeff Deskovic, Johnny Hincapie, David McCallum, Derrick Hamilton, Shabaka Shakur, Steven Barnes, Sylvia Barnes, Frank Sterling, Al Newton, Fernando Bermudez, Everton Wagstaffe, Doug Warney, Kevin Smith, Dewey Bozella, Barry Gibbs and Alice Lopez, widow of William Lopez.


NYTimes Editorial Criticizes Trump/Sessions Decision to Kill New Forensic Science Commission

The evidence as to why this is needed is clear.  Those in this movement had worked for such a commission for decades.  This is a horrible decision that could really set back innocence reform–and justice–for years.   Editorial here

Tuesday’s Quick Clicks…

New Facebook Group on Wrongful Convictions Issues…

If you’re interested in staying up on wrongful conviction issues on Facebook, I’ve started a new group called Blind Injustice.   It will also be a place people can discuss these issues, etc. in an open forum.

Join the group here:

Trump Administration kills Forensic Commission

Horrible, horrible news for those who care about accuracy in our criminal justice system.  Read story here.


Federal Judge Overturns Arizona’s Diaper Changing Child Molestation Law

Arizona’s justice system is truly something to behold. After all, it’s the home of Sheriff Joe Arpaio. And get this – Arizona’s Attorney General and Maricopa County’s Attorney have publicly stated that there are “no” wrongful convictions and “no” Brady violations in Arizona. Really?!   Arizon Bradypdf

But here’s one for the books. Arizona actually has a law that says anyone who knowingly and intentionally touches a child’s genitals is guilty of child molestation – without a requirement of sexual intent. So anyone who changes a child’s diaper or bathes a child can be charged with child molestation. All it takes is a vindictive spouse or partner, or even just a casual witness (eg: changing a baby’s diaper in a public restroom) to make a charge. And as you certainly would guess, numerous innocent parents and caregivers have been ensnared by this law.

When the Arizona legislature wrote and passed the law, they specifically removed the requirement for sexual intent. The governor signed it, and the Arizona Supreme Court upheld it.

Recently Federal District Judge Neil V. Wake, in a testy opinion, ruled the law unconstitutional. See that ruling here.  Thank goodness sanity has prevailed. Hopefully this will eventually lead to relief for all those wrongfully imprisoned by this bogus statute.

Last week Judge Wake also overturned the conviction of Stephen May, a school teacher and swim instructor, who was convicted largely based upon this law’s definition of child molestation.  See the article by Jacob Sullum on  here.

See the story by Mark Joseph Stern writing for Slate here.

Breaking News: Arson Conviction Based on Bad Science Tossed in Illinois

Defendant Bill Amor represented by Illinois Innocence Project.  Click for decision… amor.opinion.dupage.

More pics of the big exonerations in South Africa

Blogged about yesterday here



Thursday’s Quick Clicks…

  • Maine law makers consider expanding timeframe for inmates to bring innocence petitions with new evidence beyond current one-year limit; prosecutors oppose.
  • New study suggests that when indigent defendants get to choose their public defender, the system works better
  • A new bill under consideration in Montana would require prosecutors to tell defendants that they plan to use an incentivized witness and the terms of the deal made in exchange for testimony. It also would allow defense counsel to request a pre-trial hearing where a judge can weigh the credibility of the testimony and if there is enough other evidence to corroborate the witness’ story. The judge could then choose to bar the testimony as inadmissible or issue a jury instruction, similar to how courts currently review the credibility of some scientific witnesses before a trial starts.
  • Dallas’ exonerees mission to free the wrongfully convicted is the focus of a new film

Maryland Justice Professional Opposes Revisiting Death Penalty

“At a time when there are calls for criminal justice reform, it is important to ensure any reforms are based on sound research and data-driven, fact-based information. Calls for re-establishment of the death penalty in Maryland are not based on the aforementioned.” — Karl Bickel

Karl Bickel, a career law enforcement officer and former proponent of the death penalty, has offered a well-researched argument against making any exception to the repeal of Maryland’s death penalty, implemented in 2013. The state has opted for life in prison without the possibility of parole for its worst offenders. House Bill 881, introduced on February 6, 2017, calls for an exception for first-degree murder cases in which the victim is a law enforcement officer, correctional officer, or first responder.

A key issue for Bickel is avoiding the risk of wrongful conviction and execution of an innocent.

Bickel is retired from the Department of Justice, and has been a major city police officer, an assistant professor, and second in command of the Frederick County (MD) Sheriff’s Office.

Read his commentary here.

The National Registry of Exonerations has identified 116 cases in which a person was wrongly convicted of murder and sentenced to death, before being exonerated.

Big Win for Innocent Men and the Wits Justice Project in South Africa

From the Daily Maverick:

Before convicted murderers Samuel ‘Sampie’ Khanye and Victor Moyo walked out of Kgosi Mampuru’s spiked prison gates on 24 March, Khanye had just one request which wasn’t granted. He wanted to tell prison director Mabuti Tshele that the Constitutional Court had overturned the men’s life sentences and convictions on four counts – including murder and robbery – and ordered their immediate release: “Officials say all inmates sing the same song and Tshele called me a liar when I said I knew nothing about this crime. After 14 years in jail for a crime I didn’t commit, the Court has proved I’m innocent.”

After struggling to prove their innocence for what seemed a lifetime, an elated Khanye (37) and Moyo (35) were vindicated by order of the highest court in the land. Thanks to the combined efforts of the Wits Justice Project (WJP), human rights attorney Egon Oswald, respected Advocate Carol Steinberg and wrongfully convicted co-accused Thembekile Molaudzi, the men left the prison carrying little else besides a heavy burden of betrayal by the criminal justice system. Ironically, North West Judge President Monica Leeuw, who convicted the men in 2004, also signed their warrant of liberation.

Both men had protested their innocence since their 2003 arrest when they were rounded up as suspects – along with six others – following a botched hijacking and murder of Mothutlung policeman Dingaan Makuna. Hoping truth would prevail, Khanye recently agreed to participate in a prison Victim-Offender Dialogue (VOD) programme, to meet Makuna’s family and “tell the truth” to help both obtain psychological closure.

“I told the truth,” says Khanye, “I said I never committed the murder. When I started crying, Tshele, who was at the meeting, told me to stop shedding crocodile tears and obstructing the course of justice.” Moyo refused to meet the family: “I never killed anyone. I know nothing about this crime. The worst part was no one believed me. I saw a psychologist but all she could tell me was ‘be strong’.”

Failed by the police, the courts, legal aid lawyers, private attorneys and an advocate appointed by the Johannesburg Bar Council, Khanye and Moyo can expect no compensation from the State. Nor will Leeuw shoulder any legal consequence for the lost years and shattered dreams of five co-accused men – including Khanye and Moyo – she convicted and sentenced to life in 2004. (The men’s convictions have subsequently all been overturned by the ConCourt.)

“I’m excited but I’m scared to face the real world,” Moyo said outside the prison gates. “I’ve been here a long time and everything is different now.” Luckily, Khanye and Moyo can turn to “old-timer” exonerees Molaudzi, Boswell Mhlongo and Disco Nkosi for support, as they attempt to rebuild their broken lives in the weeks ahead. Mhlongo and Nkosi’s convictions were the first to be overturned in a precedent-setting 2015 ConCourt case.

Mhlongo and Nkosi’s exonerations paved the way for Molaudzi, who spearheaded the long battle to prove the men’s innocence, to appeal his own conviction, and motivated Khanye and Moyo to fight for their freedom. “When Thembekile left prison, he promised he’d do everything in his power to help us,” Khanye says. “He’s a man of his word. Whatever he says, he fulfils.”

It was Molaudzi who first alerted the WJP to Khanye and Moyo’s predicament and persuaded Khanye and Moyo to lodge their ConCourt appeal. This was no easy feat. For starters, Legal Aid was unwilling to assist them and neither could afford R6,000 to print 25 copies of their trial record as required by the court. “My brother gave me R3,000 and I earned R60/month as a cook in prison,” Khanye says, “and I saved every cent my brother and sister gave me for toiletries.”

“I only managed six copies,” Moyo explains. “That’s why I was the second applicant and why we lodged a joint application. I come from a poor family. My father was killed in a hit-and-run a car accident two years before our arrest and my mother lived in a shack when I went to prison. There was no one to help me. My mother was an only child. I have no aunty or uncle. Only she and two of my five siblings stood by me….”

Eventually the men scraped the money together. Assisted by Johannes Mogoba, a fellow-inmate studying law with Unisa, Khanye and Moyo lodged a joint ConCourt application for leave to appeal in April last year. The final ugly twist in the men’s unfortunate tale came after the ConCourt asked the Johannesburg Bar Council to appoint an advocate to represent the men on a pro bono basis and prominent Johannesburg advocate Naome Manaka took on the case last July.

Initially overjoyed, the men’s excitement was short-lived. Manaka never consulted with her clients or informed them of progress, and mostly would not take their calls. The ConCourt fared no better in its attempts to chivvy Manaka along. In spite of letters sent to her on behalf of Justice Johan Froneman and three subsequent letters from the Registrar of the Court asking when submissions would be filed, Manaka failed to respond or even meet her own deadlines. Nor did Manaka respond to four requests by the WJP for comment.

More than five months after Manaka’s appointment, Khanye heard fortuitously via the prison grapevine that she had submitted heads of argument on his behalf to the court: “One of my co-accused heard from his legal representative Advocate Laurence Hodes. I phoned Manaka and asked to see the papers. She said she never had copies, not even in her computer.”

Manaka claimed the delays resulted from the fact that the court was unable to provide her with trial transcripts – an easily rectifiable situation had she consulted her clients, or taken up repeated offers by the WJP to provide her with the transcripts and other documentation.

By the end of January this year, the two inmates were desperate and Molaudzi asked the WJP to obtain copies of Manaka’s submissions from the court. To their horror, they discovered Manaka had only made submissions on Khanye’s behalf, she had conflated and confused the two men’s alibis, the arguments contained material discrepancies and she hadn’t dealt with all the relevant issues. “Manaka just wanted to get rid of our case,” Moyo notes. “She never cared about us, or our freedom….”

Moyo sought solace in prayer, going down on his knees sometimes five times a day. The men knew only too well that the ConCourt was the last port of call in a protracted legal battle to prove their innocence. With their liberty at stake and buoyed by the support of the WJP, who roped in attorney Oswald to help, the two indigent inmates took an extraordinarily brave decision: They instructed the Bar Council to terminate Manaka’s mandate and requested the urgent appointment of alternative counsel.

Steinberg, who last month successfully argued the Sassa matter in the ConCourt on behalf of Corruption Watch, stepped into the breach and lodged replacement heads of argument three weeks later. A few days later, the State conceded that Khanye and Moyo should never have been convicted and the court ordered their immediate release with formal judgment to follow.

The five men’s freedom rested on complicated legal arguments relating to the admissibility of extra-curial evidence of a co-accused which the ConCourt deemed unconstitutional after Mhlongo and Nkosi’s appeal. All five were convicted on the recanted, uncorroborated hearsay evidence of Accused Number One whom a full bench of the NW High Court deemed “a reckless liar”.

A bungled SAPS investigation failed to produce gun residue, independent witnesses, fingerprints or any other form of tangible evidence linking the five men to the crime. In Khanye and Moyo’s cases, identification parade evidence was so poor the court disregarded it. And Khanye told the court during a trial-within-a-trial that he was forced to make a statement after being tortured by the police.

“The police assaulted and beat me until I agreed to co-operate,” the former Brits golf caddy says. “They put my head inside a car tyre tube and covered my face so I couldn’t breathe. Then they beat me with a hosepipe and broomstick. They tortured us for two days, also with electric shocks, to make us confess. They said they wouldn’t stop torturing us unless we told the magistrate what they said. In the end, I signed the statement they gave me.”

Two weeks before the conclusion of their nine-month trial, Khanye was subjected to suffering of a different order: His 55-year-old father, Elsas, had a fatal heart attack and the “high-risk offender” was not allowed to attend his funeral.

“The police kept saying I was the murderer and I was very badly assaulted,” Moyo recalls. “They gave me a statement and told me what to say but I refused. I was at a 21st party in Polokwane. I knew nothing about the murder and had never been to Mothutlung. I brought three people to testify who were at the party. It didn’t make any difference. The court accepted three statements of Accused Number One which all contradicted each other…”

When the men arrived at Kgosi Mampuru C-Max after sentencing, they claim they were forced to strip naked, assaulted, shocked with electric shock shields and tortured for no apparent reason in front of female warders. After their transfer to Kokstad’s eBongweni C-Max prison, designed to house the country’s most dangerous criminals, they were assaulted and tortured again.

Throughout their ordeal, Khanye and Moyo leant heavily on Molaudzi for emotional and practical guidance as they struggled to obtain their transcripts that were needed to appeal their case. Eight years after their conviction, prison warder Levy Maphakane took pity on Molaudzi and asked the WJP for help. Prior to this, the Legal Aid advocate who initially represented Molaudzi claimed his office burnt down and he’d lost all his records.

After a second Legal Aid advocate failed to find the records, Molaudzi, Khanye and Nkosi’s families raised R18,000 between them and paid private attorneys to find the records, even though indigent inmates are entitled to these documents at State expense. When the attorneys eventually delivered the transcripts two years later, more than half the 1,023 page record – including the most crucial evidence – was missing. “We didn’t commit a crime,” Molaudzi says, “a crime was committed against us…”

After repeated requests, Leeuw finally agreed to retranscribe the records and the men were in a position to appeal their case – a constitutional right and a delay Justice Edwin Cameron subsequently described as “egregious”. Their appeal was dismissed by a full bench of the NW High Court. Subsequent Supreme Court appeals were also dismissed without reason.

Despite Molaudzi’s indefatigable personality and constant attempts to buoy their spirits, the men were growing increasingly despondent. Mhlongo had twice attempted to end his life and a third attempt landed him in a six-month coma. “There were many times when I lost hope and thought I can’t continue – especially when Boswell tried to commit suicide,” Moyo says. “He left a note telling his mother it was better for him to die. I felt the same. If it weren’t for my mom who stood by me and my son, Jimmy, who is now 14, I’d have killed myself long ago…

Clearly, Dingaan Makuna and his family were not the only victims of a monstrous crime.

Unlike Moyo, Khanye never saw his mother for two years before his release: “I didn’t want her to visit. Every time she came she cried the whole time until visiting hour was over. I disappointed my whole family. If I wasn’t in this mess, maybe my father would still be alive?”

Fourteen years later, five men and their families are proof of the human cost of judicial error, the fallibility of an increasingly dysfunctional criminal justice system and the fact that not only guilty people find themselves behind bars – especially if they’re poor. “It’s not only me and Victor in prison for nothing,” Khanye says. “There are many, many others….” Sometimes truth is stranger than fiction. DM

Raphaely is a senior journalist with the Wits Justice Project (WJP) based in the journalism department of the University of the Witwatersrand. The WJP investigates miscarriages of justice and human rights abuses related to the criminal justice system.

Photo: After 14 years behind bars for a crime they did not commit, Sampie Khanye and Victor Moyo were welcomed at the prison gates by their lawyer Egon Oswald, Wits Justice Project’s Carolyn Raphaely and one of their also wrongfully convicted co-accused Thembekile Molaudzi. (Photo:Roz Berzen)

Front: Previously wrongfully convicted Thembekile Molaudzi in blue t-shirt

Middle: Wits Justice Project’s Carolyn Raphaely and wrongfully convicted just released Sampie Khanye.

Back: Wrongfully convicted just released Victor Moyo and lawyer Egon Oswald