A Beast in Uniform

The death penalty is the ultimate deterrent, or so we keep hearing. Really? Then how do its supporters explain the actions and fate of former Casablanca police commissioner Mohamed Mustafa Tabet? On August 8th 1993 the 54-year-old serial rapist faced a firing squad. He was believed to have claimed almost 520 victims – some of whom were schoolgirls. Tabet had been convicted at an extraordinary trial five months earlier – one that laid bare a web of corrupt abuse of police and medical powers.

His crimes were despicable and only emerged because of the courage of some victims who demanded justice. Tabet’s downfall was self-inflicted – the price of incredible arrogance and belief in his privilege. Not only had the vile police commissioner committed a plethora of unspeakable crimes, but he had also video-taped the ordeals of his numerous victims secretly and kept the tapes.

Tabet’s video-tapes were discovered by investigators – 118 of them – documenting his bestial crimes in an apartment he kept for committing his sex crimes. They were recorded by concealed cameras, which Tabet had installed.
The sensational month-long trial disgraced Moroccan policing. Eighteen victims gave evidence behind closed doors. Their accounts were similar. They had been taken to the apartment by force or ruse and then subjected to vile sexually cruel ordeals. They received damages between $3500-16,000.

Scandal

The scandal came to light because two of Tabet’s victims took legal action against him. Morocco, to its credit, did not cover up for Tabet, or his colleagues. Tabet – married to two women and father of five children – was a vicious beast. However, his defence stretched credibility to absurd lengths. He claimed that the sex was consensual – all 518. Not surprisingly he was not believed. But even worse emerged.

Tabet’s numerous crimes, committed over several years, were appalling. That cannot be disputed, but how had he evaded justice for so long? The answer lies in colleagues who disgraced their profession and a gynaecologist who performed unwanted abortions and reconstructed hymens. Dr Driss Lahlou received 17 years. His crimes also included complicity in rape.

The Cover-Up

The cover-up was extensive and shameful. It involved civilians – five of whom were jailed for ten years. Eight police officers were sent to prison for three years. They were not alone. Police Commissioners Abdesalam Bekkali and Mustafa Benmaghnia obstructed justice and failed to denounce a crime. They were jailed for twenty and ten years respectively for these offences and for falsification.

However, the worst of the conspirators of silence was Tabet’s superior, Ahmed Ouachi. He was sentenced to life imprisonment – and rightly so – for trying to cover up Tabet’s crimes both before and during the investigation that finally exposed Tabet for the depraved beast that he was. The list of Tabet’s offences were legion.

Deterrence?

If capital punishment was the deterrent it is claimed to be, how did it fail to curb the criminal instincts of Mohamed Mustafa Tabet, a commissioner of police? Surely Tabet knew the consequences of his crimes and the risk of committing them, but that could not deter a senior police officer from committing heinous offences.

Tabet’s execution was the last to take place in Morocco, despite two terrorist atrocities – suicide bombings in 2003 and 2007. Despite Morocco retaining the death penalty – over a hundred prisoners remain under sentence of death – it has not carried out an execution for almost a quarter of a century and is considered a de facto abolition nation.

by Satish Sekar © Satish Sekar (June 1st 2011)

Cyclone of Injustice – Joyce Gilchrist

Joyce Gilchrist was once fêted – the go to analyst, but there was a hidden story. Gilchrist swept through Oklahomaʼs criminal justice system – a cyclone of injustice – leaving a trail of devastated lives in her wake. This included victims of miscarriages of justice and the original crimes too as well as the people of Oklahoma whose interests were betrayed by Gilchristʼs failures.

Among the cases that she got horribly wrong was that of Jeffrey Todd Pierce. He was convicted of rape, largely due to evidence manipulated by Gilchrist. Pierce had a strong alibi and no previous convictions. He lost fifteen years of his life for a rape he did not commit. There is no doubt that he is innocent as the real rapist Omer May Jnr. was identified by DNA testing, but May has not and never will be charged with the vicious offence that he committed.

Why? Because the statute of limitations ran out while Pierce was wrongly incarcerated. That is obscene. There should be no statute of limitations on justice, especially when it expired due the criminal justice system persecuting an innocent man. Whether it takes days, years, decades, or even centuries, there should never be a statute of limitations of any kind on the search for justice.

This is not the only vindication case involving Gilchrist. Even now, after her appalling practices were exposed at the cost of her job and others their liberty – possibly lives even – Gilchrist sees herself as the victim, outrageously claiming that she is being punished for alleging sexual discrimination, rather than her practices, which were hopeless at best and more likely corrupt.

Even the vindication of people like Pierce did nothing to chasten Gilchrist, let alone convince her that she was wrong. As with Michael Heath in Britain, the investigation into her practices slammed the lid shut on a scandal of epidemic proportions, especially regarding those who had already been executed.

Gilchrist could not have thrived in the grey areas of disclosure had there been an integrated approach between the forensic sciences and the judicial processes. Oklahoma put funds aside for DNA testing in the wake of the Gilchrist Affair, but the fallout was controlled, meaning a perfect opportunity to deliver important changes to the system that could have prevented repetition was needlessly lost.

The use of Police Laboratories is a case in point. There is no doubt whose side scientists working in those labs were on and were meant to be on. And that creates the conditions where ʻscientistsʼ like Gilchrist can operate, but Gilchrist did not function in a vacuum.[2]

The criminal justice system of Oklahoma is culpable too. Colleagues that opposed her were marginalised and accused of professional jealousy. Meanwhile, prosecutors loved her and senior jurists defended her tooth and nail. She flourished through this dark alliance of injustice.

She wrecked many lives with impunity and the system tolerated it and encouraged it even by failing to heed the warning signs repeatedly. At least eleven sentenced to death in her cases were executed.

Some were freed from Death Row, but the Gilchrist Scandal demonstrates the need for eternal vigilance throughout the forensic science and legal communities. Sadly, there are some experts who not only cannot be relied on to tell the truth, but are also not deterred from shoddy practices even with lives at stake.

Despicable

The death penalty has gone in Britain, but powers of life and death remain. Nothing illustrates this better than cases where there is no doubt about innocence because no crime occurred, or the real perpetrator was caught and convicted, or identified if dead. It does not even require a trial to ruin lives. For example the tragic story of Jaycee Lee Dugard claimed another victim.

Her step-father Carl Probyn witnessed the then 11-year-old girl being kidnapped by two people near her home in Lake Tahoe, California on June 10^th 1991. Nancy Garrido bundled Jaycee into the car that Probyn described, while her husband Phillip, a registered sex offender, drove the car.

School-children witnessed the kidnapping too. Probyn gave chase on a bicycle, but could not keep up with the kidnappers. After an eighteen year ordeal Jaycee was found alive on August 26^th 2009, having been kept captive by the fiendish couple for almost two decades. Her eighteen year disappearance had been resolved, but the girlʼs childhood had been stolen.

Garrido had repeatedly raped her and Nancy was culpable too. Jaycee had two daughters by him, both the result of the rape of a minor. The girls were told that Jaycee was their sister. They know the appalling truth now. The Garridos pleaded guilty to kidnapping and sexually assaulting Dugard on April 28^th 2011.

Investigative opportunities were missed and vital time was wasted, investigating Probyn, whose marriage to Jayceeʼs mother Terry was destroyed by the kidnap and suspicion directed at Probyn, who was not only innocent, but had provided solid investigative leads.

Consequently, Probyn is a victim of this disgraceful case too – nowhere near the same extent as Jaycee and her daughters – but a victim nevertheless. He was never charged, let alone wrongfully convicted or charged, but such accusations are soul-destroying.

There was smoke – hot air actually – but no fire there, although the suspicion still managed to burn Probyn, who lost his marriage and family to it.

The State of California let them all, especially Jaycee, down appallingly. She has been compensated and is trying to rebuild her life, but nothing can ever compensate her for that ordeal, or for the failed opportunities to rescue her.

Garrido was a convicted rapist and subject to probation visits and from police over the eighteen years. He had pleaded guilty to several counts of kidnap and rape and was jailed for 431 years on June 2^nd 2011. His wife got 36 years to life, agreeing to waive appeal rights.

While the overwhelming measure of sympathy and support must go to Jaycee, her mother, daughters, biological father and Probyn are victims too.

Vindicated

Horrid as it undoubtedly was to be wrongly suspected of involvement in such an offence as the kidnap of Jaycee Lee Dugard, it doesnʼt and cannot compare to actual incarceration for crimes committed by others. There are, according to the Innocence Project, over a hundred cases in the USA where the real perpetrator has been identified after a miscarriage of justice.

The American definition is however inadequate in our opinion as it does not include people like Probyn, but we have clearer examples that illustrate the point. There is no doubt about the vindication cases, yet there are no investigations of what went wrong – no attempt to understand how justice miscarried and why.

Not even attempts to establish if forensic science could have prevented it with one exception in Britain. But the USA is not alone. It has happened in Canada; it has occurred in Australia and New Zealand too and even in the Netherlands. Spain has suffered it too. Even China, Hungary, Belarus, Russia and a strange one in South Africa too have experienced them.

Absurd

This does not mention jurisdictions where the supposedly deceased people turned up alive and well later. Mpagi Edward Edmary spent eighteen long years on Death Row in Uganda for a murder he not only did not commit, but for a crime that did not happen. His cousin, Fred Masembe died on Death Row awaiting execution for this non-crime, untreated as he was there to be killed – an innocent man!

Meanwhile, George William Wandyake was alive and well, and even thought to have attended their trial. Why did the Ugandan authorities not demand proof that Wandyake was dead before trying, let alone convicting, innocent men of murder? Where was the compelling medical evidence justifying this prosecution?

It disgraces every concept of justice that this shambolic prosecution was allowed to pollute a court of law. It is also interesting that in all the discussion of human rights abuses in China, not a word is spent on vindication, despite a few cases where cases were solved by confessions secured by beating suspects until they confessed.

Notorious

A notorious double murder of police officers – they were executed – was solved in this manner. The defendant showed his injuries to the judge. He was sentenced to death, but it was suspended later.

Du Peiwu could easily have rotted in a Chinese prison for a crime he did not commit, but for sheer luck. The real perpetrators were arrested on other matters and confessed to the crime that Du had been convicted of.

It was a shocking miscarriage of justice in every way, especially regarding its victim. The man police officers tortured into confessing to a crime he did not commit was no ordinary victim of injustice. Du Peiwu was a fellow police officer, but that didnʼt save him.

Tolerating Injustice

There are other extraordinary cases of vindication in that jurisdiction too. If ever a criminal justice system cried out for an integrated approach between forensic sciences, investigative methods and court procedures, surely it was China.

These injustices were secured through torture, but let us not cast the first stone against China until we address the glaring flaws in our own system. We have tolerated rendition and the abuse of our citizens in the name of the ʻWar on Terrorʼ, while condemning other governments over their records.

By what right can we condemn other governments while tolerating these abuses and others that are ignored, undiagnosed even – abuses that shame and disgrace our society? We permit undeniably innocent people who have been wronged in our name to be treated shamefully.[3]

Let us remember Jaycee Lee Dugard and her family. They were betrayed by their own criminal justice system. No compensation can ever make amends. $20m does not return her stolen life and innocence to her.

It does not justify the failure to protect them – rights they had every right to expect and demand. Compensation does not, or at least should not, cater for their care needs. The psychological damage that has been done to them all needs to be addressed at state expense.

They were failed by the system that had a duty to protect them, so it owes each of them restitution to the lives that were stolen from them. And that duty extends to other innocent victims of injustice, especially the vindicated and that should begin here.

[1] An indication of the importance of an integrated approach can be seen in Equality of Arms, at http://fittedin.org/fittedin/?p=690  for more on this case and others too.

[2] I intend to highlight the effect of Oklahomaʼs cyclone of injustice in a forthcoming book.

[3] I am currently researching a book on these cases and others like them, which I hope will be published next year.

Suspicions

Before police investigating the rape and murder of Nienke Kleiss and attempted murder of Maikel Willebrand ‘discovered’ Kees Borsboom as a suspect, they believed that Willebrand was lying. The children had been playing in Beatrix Park in Schiedam. They were viciously attacked by a man. Kleiss tried to fight back, but the ten-year-old girl was no match for a homicidal Wik Haalmeijer.

Nor was the eleven-year-old Willebrand. He played dead and waited for Haalmeijer to go. Eventually he did and Willebrand sought help, which he received from passing cyclist Kees Borsboom – the man who called the police. The police did not believe Willebrand. The survivor – the crucial witness – was treated as their prime suspect. They thought that he had been too smart by playing dead.

His account did not fit the case-scenario that they had developed – a ridiculous one – so they thought that he was the perpetrator. It was absurd on every level. Willebrand was a child. There was no evidence that he had attacked his friend and there was clear scientific evidence that proved that someone else had been involved.

It was even thought by police that his injuries were self-inflicted. But then a coincidence occurred. Police discovered that their star witness Borsboom had exposed himself to a child – the child of a police officer. They decided that could not be coincidence. He becomes their prime suspect, but it was exactly that – a coincidence – a wretched one at that.

Miracle

The survivor was to all intents and purposes a defence witness, but Willebrand was marginalised. The surviving victim and therefore a key witness did not support the case hypothesis. Rather than admit that the hypothesis was the nonsense that it was subsequently proved to be, the victim/witness was marginalised and Borsboom was convicted in nearby Rotterdam.

Borsboom subsequently lost his appeal, but this was not the end of the story. Despite the indisputable evidence of innocence, he could have maintained his innocence to his dying day without being believed. It required a miracle and unusually it got one.

Both he and Willebrand would be vindicated by it. Wik Haalmeijer was arrested for two unconnected rapes. He not only admitted to those offences, but confessed to the Schiedammer Park crimes and insisted on DNA tests to prove his guilt. Nothing would induce him to withdraw his request. The DNA testing proved his guilt and also Borsboom’s innocence.

Outrage

Before police investigating the June 22^nd 2000 rape and murder of ten-year-old Nienke Kleiss and attempted murder of her eleven-year-old friend Maikel Willebrand ‘discovered’ Kees Borsboom as a suspect, they believed that Willebrand was not only lying about the terrible events, but was also responsible for them. They thought that he his account of playing dead to survive did not and could not ring true.

The investigators could not understand how a brutal killer could fail to kill him after brutally murdering Kleiss and also how an eleven-year-old child could be that cool under such pressure to outsmart the killer, but that is exactly what Willebrand did. He knew that he could not fight off a fully grown and vicious Wik Haalmeijer. He did as he was told while being attacked and then played dead.

It saved his life as Haalmeijer, believing Willebrand was dead, attacked Kleiss. After satisfying his bestial urges he left the Beatrix Park in the town of Schiedam – near Rotterdam – and allowed an innocent man to be wrongly convicted. Dutch society was shocked to the core by these crimes, but insult would soon be added to terrible injury.

Shocking

Willebrand’s account did not fit the case-scenario that the police had developed – a ridiculous one. They could not believe that the perpetrator that Willebrand described could have been so careless as to leave a witness to tell the tale. They also thought that no child could think that quickly and rationally in such horrific conditions, so Willebrand had to be lying and if he was lying, then he had to be the perpetrator.

But that was absurd on every level. Willebrand was just eleven-years-old. There was no evidence that he was capable of such depravity and brutality or was anything other than a normal child, whose childhood was ruined by the Schiedammer Park attacks and wretched investigation of those crimes.

There was no evidence that he had attacked his friend and there was clear scientific evidence that proved that someone else had been involved, but that was not enough to persuade police that their ridiculous belief that Willebrand’s injuries were self-inflicted was wrong. That required another unfortunate coincidence. Police discovered that their star witness Borsboom had exposed himself to a child – the child of a police officer.

They decided that could not be coincidence, so he became their prime suspect – another tunnel had opened, which led investigators away from the real perpetrator, Wik Haalmeijer.

Unconscionable

The Dutch criminal justice has a good reputation abroad. Even activists, when told about the now notorious Lynette White Inquiry as the battle to free the Cardiff Three was nearing its conclusion in 1992, defended it. They said that it was impossible for justice to miscarry in the Netherlands as badly as it had in the Lynette White Inquiry for example.

Their outrage was limited to a peace activist who had been sentenced to two weeks imprisonment for daubing graffiti in an American base after breaking into it. They insisted that this was sentencing him twice for the same crime and they were outraged about it.

This, they insisted, was the worst miscarriage of justice in the Netherlands at that time. But they were wrong. The Dutch system was capable of miscarrying as badly as it had in Britain – worse even.

Vicious

On June 22^nd 2000 ten-year-old Nienke Kleiss was raped and murdered in Beatrix Park in the small town of Schiedam, which is within easy commuting distance of Rotterdam. She fought hard for her life and left vital clues to identify the perpetrator, but her efforts were wasted by police and the Dutch criminal justice system for four years as justice miscarried twice.

Her eleven-year-old friend, Maikel Willebrand, with whom she had been playing, was also viciously stabbed at the same time by Wik Haalmeijer. Willebrand survived by playing dead only to be absurdly accused of having inflicted the injuries on himself to cover up his crime – the attack on Kleiss. It was an utterly ludicrous allegation and an unconscionable way to treat a child who had been the victim of a vicious attack.

DNA testing would play a large part in this inquiry. It quickly proved that Willebrand had been telling the truth that he had been attacked himself and had played no part in the rape or murder of Kleiss, but police were still not prepared to listen to him at all.

They only moved on from Willebrand when they heard about a coincidence regarding the man who then became their new prime suspect Kees Borsboom – the man who had helped Willebrand after the crimes by reporting it to the police. And even then they would not accept Willebrand’s account because the boy would not turn on the man who had helped him.

Fanciful

DNA expert Richard Eikelenboom, then working for the Netherlands Forensic Institute (FSI) developed the DNA protocols that were used in the Schiedammer Park case. He knew that Low Template DNA had produced important results, quickly realising that both Willebrand and Borsboom had nothing to do with the crimes, but he was not the Reporting Officer and Ate Kloosterman’s report was very selective.

Kloosterman told the judge that the ‘foreign’ DNA results on Kleiss’ shoe and fingernails had been deposited by a child at her school. Unknown to the court there were compelling reasons to reject that explanation. Kleiss had been playing in water just before she was attacked and the surviving victim had told police that she had scratched her assailant – time would tell that she had.

The results on the shoe and elsewhere were also the same – it would have required an incredible coincidence for all of those alleles to have been deposited at various locations innocently, but Kloosterman knew the significance of the results well or should have done. It was obvious that they had been deposited by one person and not by Kleiss’ classmates. They had the DNA of the real perpetrator – enough to eliminate the entirely innocent Borsboom, but selective disclosure prevented that from happening.

Three days before she was due to stand trial accused of conspiracy to pervert the course of justice Eleanor de Freitas committed suicide. Last year she had accused a man¹ of rape. The investigating officers believed her, but lacked sufficient evidence to prosecute him. The Metropolitan Police still categorise it as rape, but they told her that they did not think there was enough evidence to prosecute her alleged attacker.

De Freitas had mental health issues. She had previously been sectioned. She accepted the decision not to prosecute him. The man that she had accused did not. He decided that his only option to clear his name was a private prosecution against her. He gathered texts and CCTV for that purpose. This was the basis of the decision to prosecute de Freitas.

According to de Freitasʼ father the man harassed her with texts and voicemails. Unusually the Crown Prosecution Service (CPS) decided to take over that prosecution. It insisted that the police provide a disclosure officer and claimed that new evidence surfaced, justifying prosecuting de Freitas. It also insists that there was new evidence that the police had not considered.

Last November Allison Saunders succeeded Sir Keir Starmer as Director of Public Prosecutors. Saunders provided a robust defence of the CPSʼ actions in this controversial and tragic case. Saunders insists that prosecuting de Freitas met both criteria – that there was sufficient evidence to offer a realistic prospect of conviction and that it was in the public interest. However, the CPS that she inherited operates in a culture of secrecy over how it reaches decisions on whether to prosecute or not.

Dark Ages

Previously the CPSʼ Code for Crown Prosecutors outlined the criteria that prosecutors needed to be aware of when making decisions on whether there was enough credible evidence to pass the realistic possibility of securing a conviction test. Back then the CPS was open about what the criteria were, although it stressed that these were only guidelines. It also defined what prosecutors should be aware of when deciding whether prosecuting was in the public interest or not.

For further information on these criteria in an era when despite its faults – and there were many – the CPS believed in openness refer to Satish Sekarʼs book Fitted In: The Cardiff 3 and the Lynette White Inquiry² at http://fittedin.org/fittedin/?page_id=15.

That Code meant that it was possible to compare the evidence relied on in a case to the requirements of the Code and judge whether it was right to prosecute or not. It also mandated its prosecutors to be aware of lines of defence and how that would impact on the possibility of securing a conviction. This plainly applied in de Freitasʼ case, but does that apply in the decision-making process any more?

The decision to prosecute de Freitas would surely have benefited from such openness on the decision-making process of the CPS. Crown Prosecutors may still apply the sufficiency test in the decision-making process, but without access to those criteria, how can the public judge the conduct of the CPS and how can they hold the CPS responsible for its decisions.

The previous Code would have meant that the decisions made in the de Freitas case could have been understood and assessed with access to the knowledge needed to make an informed decision. Instead, the public are left in the dark, depending on crumbs offered by the DPP. It could and should have been so different.