NEWSPROSECUTORIAL MISCONDUCT

Cristian Fernandez appeared in a Jacksonville, Florida courtroom this week without wearing the metal shackles on his hands and legs that have been placed on him for the last year. News of the 13-year-old's shackling inspired over 2,300 people to sign a petition calling on Cristian's shackles to be removed. Most of these people were Florida citizens appalled to learn how their state had been treating Fernandez.

According to the The Florida Times-Union, Circuit Court Judge Mallory Cooper granted a motion filed by Fernandez’s new team of defense attorneys to remove his leg restraints and handcuffs last week. He appeared in court on February 27 without the restraints and will remain unshackled for future court appearances.

The grassroots effort to remove Cristian's shackles were spearheaded by Alicia Torres, a Jacksonville, FL mother whose children attended school with Cristian, and Melissa Higgins, the NH mother and child advocate who helped tell the world that Cristian was being unfairly tried as an adult. Their petition asked Cristian's judge to consider that the indiscriminate shackling of children in Florida courts was banned by the Florida Supreme Court in 2009. The state's highest court even called the practice "repugnant, degrading [and] humiliating."

Melissa and Alicia have never met and live over 1,000 miles apart. But both have started Change.org petitions around Cristian's case and worked tirelessly to draw attention to Cristian's treatment by the State of Florida. Melissa's petition, which calls for Cristian's case to be moved back to juvenile court, has become one of the most popular campaigns on the Change.org platform.

Last month, they organized a rally to call for the humane and just treatment of Fernandez outside the Duval County Courthouse in Jacksonville, FL. Supporters held a moment of silence for Cristian and his half-brother David and then delivered over 180,000 signatures to State Attorney Angela Corey who refused to even take the signatures from them.

Fernandez is charged as an adult with the murder of his two-year-old half-brother David who died last year. If convicted, he faces life in prison without the possibility of parole. That potential outcome has resulted in international outrage because of the boy's young age and his long history of mental, physical, and sexual abuse.

For Melissa and Alicia, the good news of Cristian's unshackling is just a small victory in the campaign to have Cristian's case moved back to the juvenile courts  and they want to thank everyone who spoke up for Cristian:

“We are overwhelmed by the number of people who have come together to help Cristian Fernandez. His unshackling in Florida is proof that when enough people speak, their voices are heard loud and clear. We hope this marks the beginning of a trend of positive events in a case that has been both tragic and sad from the very beginning. Thank you to everyone who has supported Cristian and continues to support him. His fight is not yet over.”
~ Melissa Higgins and Alicia Torres

On February 8th, 2012, please join parents, clergy, and medical professionals at 7am in front of the Duval County Courthouse in Jacksonville, Florida (330 East Bay Street), in a peaceful protest against the handling of Cristian Fernandez in the adult justice system. Cristian was barely 12 years old when he was charged as an adult in the death of his brother. If he is convicted on February 27th he faces life without parole.

The case of Cristian Fernandez has attracted local, state, national and even international attention through a Change.org petition created by Melissa Higgins, a mother concerned about the treatment of children in America's criminal justice system. Almost 180,000 people and organizations have signed Melissa's petition asking Florida State Attorney Angela Corey to reverse the decision to try Cristian as an adult.

If you have questions about the rally or would like to confirm you participation, you can send and email to savecristian@yahoo.com and you can find additional information at savecristian.org.

The rally was set to coincide with a 9am hearing at the courthouse where the judge would rule on motions filed by the defense, but that hearing has since been canceled. Cristian's supporters will still convene and display support for him.

EVENT DETAILS:
When: Wednesday, February 8, starting at 7am
Where: Duval County Courthouse, 330 East Bay Street (Google Map)
What: A peaceful rally/protest against the handling of Cristian in adult court
How: Participants will be given signs to hold and/or other visuals
Who: The rally is being organized by Melissa Higgins, Alicia Torres

Here is a flyer you may print and distribute advertising this event:
http://justice4juveniles.com/cristianfernandezfiles/pdfs/feb8flyer3.pdf

In 2009, the Florida Supreme Court ruled in favor of limiting the shackling of children in Florida courtrooms. In fact, they called the practice "repugnant, degrading [and] humiliating." But because he's being tried as an adult in Jacksonville, Florida, 13-year-old Cristian Fernandez is likely to walk into his February 8 hearing wearing shackles.

Following the justices' ruling, the shackling of a child in Florida could only be done if that child was determined to be a substantial flight risk, have a history of disruptive courtroom behavior, or be a danger to him/herself or others in the court. No statement has been made regarding whether or not Cristian Fernandez meets this criteria.

In an email to a Jacksonville resident concerned about the shackling of young Cristian, State Attorney Angela Corey stated that the decision to remove the shackles is up to Duval County Judge Mallory Cooper and chief bailiff, Lt. Weintraub of the Jacksonville Sheriff's Office.

Alicia Torres is a Jacksonville resident and the mother of one of Cristian Fernandez's former classmates. When she heard that Cristian was likely to be shackled during the trials, she wrote an open letter to Judge Mallory Cooper and Lt. Weintraub and posted it to her Change.org petition kindly asking that they remove the degrading and dehumanizing shackles and follow the Florida Supreme Court's ruling on the issue. Now, her petition is taking off! Nearly 200 people have signed in just the last few days.

Read Alicia's letter below and sign her petition here: https://www.change.org/petitions/shackling-children-is-wrong

An Open Letter to Duval County Judge Mallory Cooper and Lt. Steve Weintraub of Jacksonville Sherrif's Office

We are writing to you in the hopes that you will allow 13 year-old Cristian Fernandez to attend his hearings and trial without being shackled.

The Florida Supreme Court banned the indiscriminate shackling of juveniles in 2009 stating "We find the indiscriminate shackling of children in Florida courtrooms as described in the NJDC's Assessment repugnant, degrading, humiliating and contrary to the stated primary purposes of the juvenile justice system and to the principles of therapeutic justice,"  in an unsigned 6-1 opinion.

Because Cristian is being tried in adult court, there is a loophole that allows him to be shackled. But the shackling of this young child is not necessary for the safety of others or to keep Cristian from escaping. The use of shackles on him is a dehumanizing and degrading act.

The decision to move Cristian's case to the adult courts is hotly contested by hundreds of thousands of people throughout the world - many are citizens of our great state. But that's not what this is about. Common sense, human kindness, and Florida state law tells us that the shackling of a 13 year old boy is wrong - thats why the Supreme Court banned it unless absolutely necessary.

This petition is meant only as a means of showing you that there is widespread support for Florida's statutes against shackling children. We understand this is an unusual and complicated case and thank you for your service - but we also hope you will take into account that Cristian Fernandez has been in custody for nearly a year now and has not had any incidents or indication that he needs to be shackled.

I started this petition because I am a parent and the mother of one of Cristian's former classmates. I believe in Florida's statutes against shackling juveniles and I believe in our country's system of due process which says that Cristian is innocent until proven guilty.

Please do the right thing and allow Cristian to attend his hearings without shackles.

Cristian Fernandez has been detained for more than 8 months. At 12 years-old, we can only imagine how scared he is and how he'll have to spend this holiday season behind bars as Florida State Attorney Angela Corey seeks to send him to prison for the rest of his life.

Cristian isn't allowed to have toys sent to him at the detention center where he is being held but he does like to get cards and there is no doubt that the will be lonely this holiday season. So we're asking that you send Cristian Fernandez a holiday card to cheer him up and let him know people around the world care about him.

Cristian is housed at the Duval Regional Juvenile Detention Center. Please send holiday cards addressed to:

Crisitan Fernandez
c/o Duval Regional Juvenile Detention Center
1241 East 8th Street
Jacksonville, FL 32206-4099

There was no physical evidence linking Courtney Bisbee to a crime, just the incomplete and inconsistent testimony of child witnesses who claimed they saw her engage in inappropriate touching with a 13 year old boy. And it was based on that testimony alone that she was convicted in 2006 of child molestation and sentenced to 11 years in prison.

Bisbee, a 35-year-old mother and former school nurse, was prosecuted by the office of disgraced District Attorney Andrew Thomas, the subject of an ongoing FBI investigation who has been accused by the Arizona State Bar of having engaged in at least 33 ethical violations while in office, from abuse of power to prosecutorial misconduct. Thomas is also perhaps best known for prosecuting a 16-year-old boy as a child sex offender for allegedly showing a Playboy to two of his friends.

In January 2007, the case against Bisbee – already thin – began to unravel, as journalist Stephen Lemons reported in a comprehensive piece for The Phoenix New Times. Indeed, one of the prosecution's “star” witnesses, Nik Valles, signed an affidavit stating that he was forced to lie on the stand – forced to say his brother, Jon, was groped by Bisbee at a friend's house – by his mother, who he says put him up to it in order to cash-in from a lawsuit against the school where Bisbee worked.

No matter what a federal prosecutor does during a trial – from withholding evidence that could set an innocent person free to flat out lying to the jury – they enjoy absolute immunity from civil liability, meaning the worst that can generally happen is they'll receive a sternly worded letter from their superiors imploring them to do better (i.e. not get caught) the next time.

Last year, USA Today – best known for those fancy graphics depicting Americans' soft drink preferences and other important polling information – published a truly impressive series identifying more than 200 cases where Justice Department lawyers, the cream of the government legal crop, engaged in flagrant prosecutorial misconduct “that put innocent people in jail and set guilty people free” with little in the way of repercussions. In response, more than 470 Change.org members petitioned the Justice Department to step up its efforts to punish prosecutorial misconduct.

In response to USA Today's series – not that the Justice Department would admit that – Attorney General Eric Holder this week announced the creation of a Prosecutioral Misconduct Review Unit that he cast as way to streamline the department's disciplining of its lawyers for gross ethical violations.

Gloria Killian spent the better part of two decades in a California prison for a crime she didn’t commit. Convicted of masterminding a 1981 murder and robbery, Killian received a sentence of 32 years to life behind bars based on the testimony of a man who admittedly lied on the stand in exchange for a shorter sentence.

Finally freed in 2002, Killian could have chosen to spend the rest of her life sipping mojitos on a tropical island somewhere. And who would have blamed her? Instead, she’s dedicated herself to drawing attention to the plight of women in prison and the daily injustices perpetrated by a system that has the ignoble distinction of holding more than 2.3 million people behind bars, making the U.S. home to the largest prison population in world history.

But then, “I’m compelled to do it,” Killian tells Change.org. “It’s not a choice. If I don’t use my experience to help the women that I left behind, then that means my life was destroyed for no reason, and I’m not about to let that happen.”

Between 1997 and 2009, California judges explicitly found that state prosecutors engaged in misconduct during criminal trials more than 700 times, from intimidating witnesses to witholding evidence that would exonerate the defendant, actions that led not only to innocent people being locked behind bars for years, but to actual criminals being set free. And don't expect that sort of behavior to stop anytime soon. Only six were ever disciplined for their misconduct by the California State Bar over that period, and none will ever need to pay restitution to their victims: California prosecutors enjoy absolute immunity from civil liability for their conduct in court.

Those figures are from a recent report by the Veritas Initiative, a new watchdog group launched last month by the Northern California Innocence Project (NCIP) at the Santa Clara University School of Law that aims to promote "data-driven reform" in California's dysfunctional criminal justice system. Founded by NCIP Executive Director Kathleen "Cookie" Ridolfi, a law professor and former trial lawyer, the initiative hopes to do away with the culture of impunity that's arisen among California prosecutors, 67 of whom were found to have engaged in gross misconduct more than once during a criminal trial.

In a particularly galling example, one man, Mark Sodersten, spent 22 years behind bars for a murder he didn't commit, convicted only because the deputy district attorney in the case, Phillip Cline, withheld an interview with a witness that would have exonerated him. But despite a court finding that the case raised "the most feared aspect of our system -- that an innocent man might be convicted," Cline has faced no repercussions. In fact, he's moved up in the world, becoming Tulare County's District Attorney.

In an interview with Change.org, Ridolfi discusses the link between prosecutorial immunity and misconduct and what the average person can do to make a difference.

In the last few terms, the right-leaning majority on the U.S. Supreme Court has seemed eager to reinforce the immunity that prosecutors have traditionally enjoyed from being sued in civil court for any wrongdoing. But that immunity was tested again in a case heard by the court yesterday, Connick v. Thompson, which centers on whether a prosecutor's office can be held liable for failing to train its attorneys to follow the rules.

The justices returned for a new term this week (with the newly arrived Justice Elena Kagan) and the transcript of yesterday's arguments shows that they jumped right in. Attorneys for defendant John Thompson were arguing that a New Orleans jury was right to award him damages after finding that the office run by prosecutor Harry Connick had been negligent in failing to train its attorneys in proper handling of evidence -- which led to his wrongful conviction and near execution. Lawyers for Connick's office argued that Thompson had failed to show a pattern of misconduct.

The justices had tough questions for both sides, and the media analysis is all over the map. Writing at Law.com, Tony Mauro points out the Ruth Bader Ginsburg in particular seemed peeved that several prosecutors in Connick's office had failed to follow evidence standards set under the critical case Brady v. Maryland. But there was skepticism from the bench as well, with Justices Samuel Alito and Sonia Sotomayor asking exactly how much training would be enough to meet a constitutional standard. Knowing the makeup of this court and its steadfast protection of prosecutors, I'm not holding my breath for a ruling holding prosecutors accountable for their actions. (Read more after the jump.)