The Culpeper County Sheriff embroiled in the wrongful conviction case that put an innocent man in prison for nearly 12 years denied any wrongdoing in his Feb. 22 answer to the civil suit in the matter.
Sheriff Scott Jenkins, in his 32-page answer to the civil rights suit filed two months ago by plaintiff Michael Hash, denied he was among the so-called "architects" of Hash's wrongful conviction or that he engaged in any "police misconduct" in connection with the plaintiff's arrest and conviction. Jenkins further denied having any personal knowledge of anyone else engaging in such alleged misconduct.
Jenkins, in his answer, said Hash was lawfully arrested, and that Hash is guilty of murdering neighbor Thelma Scroggins in 1996.
Following U.S. District Court Judge James C. Turk's reversal of Hash's conviction last February, an outside prosecutor nolle prossed the charges against Hash, meaning there was insufficient evidence to prove his guilt.
The sheriff, in his answer to the subsequent civil suit filed in December, said, " to the extent (Hash) suffered any of the injuries and damages alleged in the complaint (they were) ... caused by the acts of third persons and/or circumstances over which (Jenkins) had no control, and thus (Hash) is not entitled to any recovery from him." Jenkins previously asserted the former CCSO Sheriff under which he served, Lee Hart, was largely to blame for any alleged wrongdoing in the Hash investigation and prosecution. Hart is not named in the civil suit.
Jenkins, seeking immunity in the civil suit, denied any monetary liability or that he violated any of Hash's legal or constitutional rights. Jenkins, in his response, "asserts that at all times he acted lawfully and properly, in good faith and with probable cause to believe (Hash) had committed a crime with which he was charged ... (and) prosecuted."
In previous depositions related to appeals by Hash, Jenkins testified that prosecution witnesses Eric Weakley and Alesia Shelton lied numerous times and that, "To this day, I do not believe the story that they told - that three teenage boys murdered Thelma Scroggins - is plausible." The sheriff also said in a sworn statement that Hash's arrest was not "proper" because the CCSO "had a very weak case." The initial investigation concluded a single assailant killed Scroggins.
Jenkins, in his answer, said his previous statements speak for themselves, and denied there was no probable cause to arrest Hash.
In additionally filing a motion Feb. 22 to dismiss the claim for pre-conviction suppression of evidence, Jenkins' attorney argued police officers cannot be held liable for suppression of evidence unless the plaintiff's conviction was overturned on the basis of a Brady violation.
In Hash's case, his conviction was not overturned on such a basis, Jenkins' attorney said.
Jenkins responds: Paul Carter
In his Feb. 22 answer to Hash's civil suit, Jenkins "states that with all due respect to this court's decision in the habeas corpus case, that he has not had an opportunity to defend himself and was not a party to and did not represent the commonwealth in the habeas corpus action."
The sheriff has refused repeated requests from the Star-Exponent to tell his side of the story.
Jenkins, in his answer, denied involvement in or knowledge of the jail transfer of Hash so as to allegedly expose him to known prison informant Paul Carter, a scheme recently acknowledged by Hart and former Culpeper County prosecutor Gary Close.
Jenkins acknowledged in his answer that after Carter testified against Hash at trial implicating him in the Scroggins murder, the informant subsequently sought and was granted a reduced sentence, "in part, because of the information he furnished in (Hash's) criminal case."
According to the Hash civil suit, two unnamed Culpeper law enforcement officials reportedly visited Carter prior to the Hash transfer to feed Carter information about the Scroggins murder. Hash has said he spoke briefly with Carter while in the Charlottesville jail, but certainly never admitted to the murder.
Jenkins, in his answer, admitted he and current chief deputy James Mack went to interview Carter in June 2000 "at the direction of either their supervisor or the Office of the Commonwealth's Attorney," but denied feeding Carter any information or that he created a false report for the file stating Hash confessed the crime to Carter.
Jenkins admitted he received several letters from Carter while he was in jail.
Mack subsequently testified at Carter's July 20, 2001 hearing on the federal drug charges, saying Carter testified at the Hash case, ultimately helping Culpeper officials secure the conviction. Mack was the only witness besides Carter, whose sentence was reduced from 180 months to 60 months, time served, and was released from prison.
Shelton interviews
In his answer to the civil suit, Jenkins said his "alleged sworn statement" from 2010 that he "believes the sheriff's department investigation was not handled properly" speaks for itself.
One of the first witnesses he and Mack interviewed was the plaintiff's father, Jeff Hash, who suggested they speak with Shelton, their niece. Shelton was convicted in the 1999 shooting of a man in Culpeper County with her boyfriend, and was serving a seven-year jail sentence. According to Hash's lawyers, Shelton was interviewed multiple times by Mack and Jenkins because of the similarities of the crimes.
In a March 2000 recording of an interview with Shelton, Jenkins and Mack offered to "help" her or to "shorten (her) sentence" in exchange for information. Jenkins, in his answer, said the recording speaks for itself.
Following an unrecorded cigarette break with Mack, Shelton came back inside, the recorder was turned back on and Shelton said, "that's when it hit me" vaguely describing discussions that supposedly took place between Hash and friends Jason Kloby and Weakley about murdering Scroggins.
Shelton then told Mack, "See, I told you I'd help" to which Mack responded, "And I appreciate that ... I'll try to be a man of my word, too."
Jenkins, in his answer, said the recording speaks for itself, and so do the results of the polygraph given to Shelton four days later by the Virginia State Police showing she was deceptive in answering every single question implicating Hash. Prior to Shelton's statements, there was no evidence directly implicating Hash in the murder, Jenkins admitted in his answer.
Kloby was acquitted of the crime prior to Hash's trial. He is a registered sex offender serving time in a Virginia prison on other charges.
Weakley interviews
Based on Shelton's statements, Mack and Jenkins next interviewed Weakley, who steadfastly denied any involvement in the murder in initial interviews. Jenkins, in his answer, denied knowing about an off-the-record, unrecorded discussion Weakley allegedly had with former CCSO investigative supervisor Calvin Bruce Cave during which Weakley said he was present when Hash and Kloby murdered Scroggins.
Weakley served almost seven years in jail in the crime per a plea deal reached with Close after Hash was convicted of capital murder. Close said at Hash's trial there was no deal in place with Weakley.
In 2011, Weakley recanted his previous testimony saying "Jenkins and Mack showed me everything you can imagine about the crime ... talked to me about a lot of the other details of the murder, such as the location where Mrs. Scroggins's body had been found, the position it was in, how she died," and that in subsequent conversations, "the investigators became extremely frustrated and they told me what I was saying wasn't matching up with what they already knew. When I would answer questions in a way they didn't like, the investigators would suggest I was lying or confused."
Jenkins said Weakley's statement speaks for itself, and denied coaching any witnesses or feeding them information.
Jenkins, in his answer, said Weakley "eventually implicated himself" and Hash in the Scroggins' murder.
Virginia State Police Special Agent Wayne Carwile, assisting with the Scroggins case in 2000-2001, disagreed with the decision to arrest Hash, saying in 2011 he didn't believe a word Weakley or Shelton said. Carwile voiced his concerns about Weakley's credibility to "anyone who would listen," telling Close that Weakley was "just saying things." Jenkins, in his answer, said the statement speaks for itself.
Weakley has since served his sentence and is seeking exoneration from his conviction in the Scroggins murder.
Civil suit
Jenkins and Mack are named in all eight counts alleged in Hash's civil suit: false arrest, two counts of fabrication of evidence, pre-conviction suppression of favorable evidence, conspiracy to violate constitutional rights, post-conviction suppression of favorable evidence, malicious prosecution and false imprisonment.
Also named in the civil suit is former Culpeper County Commonwealth's Attorney Gary Close, who resigned shortly after Turk handed down his ruling. Close has denied wrongdoing in the criminal prosecution and is seeking dismissal of the civil suit.
Additional civil suit defendants Cave, former CCSO Jailer Mary Peters Dwyer and Paul Carter, a prison informant who testified against Hash at trial, also denied wrongdoing in their answers recently filed.
The 12-year-old criminal case against Hash hinged on the testimony of three witnesses - Shelton, Weakley and Carter, in federal jail in Charlottesville at the time on drug charges.
Hash is seeking unspecified monetary damages and a trial by jury in his wrongful conviction civil claim that he "suffered and continues to suffer grievous permanent injury, severe distress, pain, anguish, embarrassment, loss of companionship and loss of job training and employment." Hash, 32, has been free nearly a year.
His claims against Jenkins mirror many of the findings detailed in Judge Turk's ruling as part of new evidence uncovered during the federal habeas proceeding: 1) that Carter testified falsely at Hash's 2001 trial when he stated he expected "nothing" in exchange for his testimony, and that Jenkins, and others, knew that testimony was false because there was a promise in place; 2) that Hash's transfer from the Culpeper Jail to the Albemarle Regional Jail was orchestrated by the CCSO in conjunction with the commonwealth's attorney's office so as to expose Hash to Carter; 3) that Jenkins and Mack coached Weakley and fed him information about the crime, including photos of the crime scene and 4) that Weakley and Shelton both failed polygraph tests in their statements implicating Hash, results that were never disclosed to the defense or jury.
Turk wrote in his habeas ruling freeing Hash, "The conduct of Investigators Jenkins and Mack ... rises to the level of outrageous misconduct because the acts were intentional and not merely negligent."
Background
Turk overturned Hash's capital murder conviction in a scathing written reversal almost a year ago (Feb. 28), freeing Hash and taking serious issue with local authorities handling of the case in the 1996 murder of Hash's 74-year-old neighbor, Thelma Scroggins.
Scroggins was murdered in her home. She lived 1.2 miles from where Hash, now of Albemarle County, was living at the time with his parents and brother. There was no sign of forced entry the Saturday evening in July when Scroggins was killed with a rare .22-caliber rifle that was never recovered.
"Having reviewed the voluminous record in this case, the Court is disturbed by the miscarriage of justice that occurred in this case and finds that Hash's trial is an example of an 'extreme malfunction in the state criminal justice system,'" Turk wrote in his conclusion granting Hash full habeas corpus relief under the law, finding Culpeper authorities "engaged in a pattern of nondisclosure and deception" in prosecuting Hash.
Hash's appeals - doggedly pursued by his mother - were previously denied four times at the local and state level.
In 2010, he filed a petition for federal relief, alleging his own attorneys were ineffective at trial and that Culpeper officials violated his right to due process under the law by concealing offers of favorable treatment to multiple prosecution witnesses and through the CCSO's improper and offensive investigation.
Hash was 15 at the time Scroggins was shot four times in the head in her Lignum home, and 19 when a jury handed him a life sentence for the crime based on evidence presented at trial. No physical evidence tied Hash to the crime, and he had no previous criminal record expect for a vandalism charge of a vacant house as a juvenile, a charge that was ultimately dismissed. He maintained his innocence in the Scroggins' murder.
Jenkins was assigned lead investigator in the Scroggins murder when the cold case was reopened in 2000 under the new administration of Sheriff Hart. It was the first time Jenkins led a murder investigation, although he collected evidence, including fingerprints and blood samples, from Scroggins' home as part of the inital investigation.
Mack assisted Jenkins in the reopened murder case. Mack had never participated in a major homicide investigation when Hart assigned him to assist Jenkins.
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There is no way the legal system can give Michael Morton back the 25 years he spent in prison for a crime he did not commit. But the Legislature can — and should — try correct the flaws in the system that stole his freedom. It can and should make the system more accountable when it fails. A bill filed this week by state Sen. John Whitmire, D-Houston, would help achieve those goals. We urge the Legislature to advance the bill and take other action to prevent wrongful convictions involving prosecutor misconduct. As demonstrated in the Morton case, wrongful convictions leave communities vulnerable to criminals who remain free because others are serving time for their deeds.
Wrongul convictions won through prosecutorial tactics such as hiding or suppressing evidence or information favorable to the defense are morally wrong. But as we’re seeing in Texas, wrongful convictions also are costly, totaling about $65 million in compensation since 1992 to people who were freed after spending time in prison for crimes they did not commit.
And that is the aim of Whitmire’s Senate Bill 825. It is an important step in addressing flaws in the system, but it should not be the only action the Legislature takes to clean up flaws in Texas’ legal system. Whitmire chairs the Senate Committee on Criminal Justice.
The measure would reset the statute of limitations for exonerated Texans who allege that prosecutors improperly hid key evidence or information favorable to helping defendants prove their innocence. If the Legislature passes Whitmire’s bill, exonerees would have four years from the date of their release from prison to file a grievance with the State Bar of Texas, which oversees attorney discipline. Under current law, those who are wrongfully convicted can be denied their day in court on a technicality because the statute of limitations now begins at the time a violation occurs. It does allow time to be extended if a violation could not be discovered earlier because of “fraud or concealment.”
Another provision of the bill relies on the time-tested method of shaming bad prosecutors who engage in unethical or unlawful behavior to win convictions. It requires that prosecutors be publicly reprimanded if misconduct is found, removing the option of a private rebuke. Shining a public light on bad behavior can be a powerful deterrent. For some time, it’s been evident that the system is not tough enough in discouraging or punishing prosecutors who engage in misconduct. It took the Morton case, however, to drive home that point. In filing the bill, Whitmire cited the Morton case as a “prime example of the imperfections of our justice system.”
Morton served almost 25 years in prison for the murder of his wife, Christine, before DNA tests confirmed his innocence and he was freed in 2011. He has accused former Willaimson County District Attorney Ken Anderson of hiding favorable evidence from defense lawyers in his 1987 trial. Anderson, now a state district judge in Georgetown, has denied the accusations. Following news reports on the Morton case and an American-Statesman editorial calling for action by the State Bar of Texas, a bar disciplinary committee filed a lawsuit in October accusing Anderson of violating his duty as a prosecutor by withholding evidence that could have supported Morton’s contention that an unknown intruder killed his wife. If the accusations are upheld, Anderson faces reprimand, disbarment or a temporary loss of his law license.
Anderson’s legal team has challenged the lawsuit on several grounds, including a claim that the statute of limitations bars the filing of a grievance tied to events that happened nearly 25 years ago — a technicality that Whitmire’s bill will close if the Legislature passes the bill.
Public safety also should weigh heavily in advancing the bill. In the Morton case, the person who was ultimately indicted on a charge of killing Morton’s wife, Mark Alan Norwood, has been linked by DNA evidence to another murder that happened after Christine Morton was killed in 1986. Norwood faces capital murder charges in the 1988 beating death of Debra Masters Baker of Austin.
The solution proposed by Whitmire is overdue. In 2003, long before the Morton case, we pointed out problems regarding misconduct by some prosecutors and urged the State Bar of Texas and the Legislature to hold prosecutors who cheat or break the rules accountable. That case involved Swisher County District Attorney Terry McEachern, who obtained tainted drug convictions against about a dozen residents of Tulia based on evidence fabricated by a single law officer. The disciplinary petition the state bar filed against McEachern also accused McEachern of not conveying information to defense attorneys about his knowledge of the criminal history of the officer, Tom Coleman, whose fabrications were the basis for wrongful convictions that were ultimately overturned.
As we noted, Whitmire’s bill should not be the only action the Legislature takes to address deficiencies that continue to result in people being convicted and imprisoned for crimes they did not commit. But it’s a key part of a larger solution.
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An advisory board of citizens who bring a non-legal point of view was formed to serve as a liaison between the community and the state's attorney's office and to advise the office on issues related to crime, public safety and restoring trust in the criminal justice system.
"It is no secret that there have been several cases that have come back on appeal," Nerheim said. "It is no secret that when there is discussion of wrongful conviction around the country, Lake County is part of that discussion."
The Lake County State's Attorney's office under former leader Michael Waller came under fire for a series of cases involving wrongful convictions. In the last years of Waller's tenure, the office took legal hits on four violent felony cases that DNA had contradicted. In each, prosecutors kept insisting on the accused man's guilt after blood or semen evidence proved his innocence.
All four cases eventually fell but the men had nearly spent a combined 60 years in prison.
Nerheim said the new boards will not only review cases in which a defendant's guilt is called into question, they also will work to determine the causes of wrongful convictions and recommend policies for future investigations and prosecutions.
Immediately after being sworn in Thursday, the groups began to get materials on their projects. Nerheim said he has five cases he's considering turning over to the board to examine, cases he said he gathered from defense attorneys, defendants or family members of defendants.
"We can't look at every case," said Nerheim, who said he will allow matters at the appellate court level to "run (their) course."
Nerheim said he had not made a final decision on which cases the board will first review.
But he has already denied review of one case. Defense attorney Paul DeLuca asked Nerheim to take up the case of Melissa Calusinski, a woman found guilty in 2011 of the 2009 murder of a Deerfield toddler at the day care where she worked.
Nerheim said that though not taking up cases that are on appeal isn't a "hard and fast rule," he said in Calusinski's case, "there wasn't anything that gave me particular concern."
Both boards are expected to meet once a month. While they will render their opinions to Nerheim, he said the ultimate decision will lie with him.
"I wanted to have independent, experienced, fresh sets of eyes on us," he said.
Members of the case review board include Robert Baizer, a trial lawyer and former Lake County prosecutor focused on serious personal injury, medical malpractice and wrongful death cases; retired DuPage County Circuit Court Associate Judge Peter Dockery, who began his career as a prosecutor in the DuPage County state's attorney's office; Nicholas Ivarone, a private attorney and former Cook County prosecutor and supervisor of the organized crime unit; civil litigator Ennedy Rivera, who specializes in immigration, civil and federal litigation and is the current president of the Lake County YWCA; Emilio Santi, a retired 19th Judicial Circuit judge and an attorney in private practice who co-founded and served as supervising judge of the Lake County mandatory annexed arbitration program; and Frank Zera, a former Cook County prosecutor and assistant attorney general with the Illinois Attorney General's office who chairs the Department for Criminal Justice at the College of Lake County.
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Anyone who visits a state prison will be amazed at the number of inmates who proclaim their innocence. At first, Ross sounded just like the rest of them. He claimed innocence when he was arrested and when he was sentenced. On Monday, after nearly seven years in prison, he talked about relief.
Freedom, it's something many people take for granted, a state of mind exercised by an act as simple as deciding where and when to go to lunch. At the law office on Monday, Ross was still not taking it for granted. "Man, it's a wonderful thing, you know?" he said. Last Friday, he walked free in clean air for the first time since 2006 after an Alameda County judge set aside his conviction for attempted murder in a West Oakland neighborhood. As it turned out, a witness misidentified a photograph. "It took five years and seven months to win Ronald's freedom," said Linda Starr with the Northern California Innocence Project.
"I'm just like a newborn baby, got to take one step at a time," Ross said. His lawyers describe him as being remarkable in spirit with no anger and no desire to get back at a system that wrongly incarcerated him. Everyone wants to know, will he sue? Ross would not say. Right now, the going rate for wrongful conviction in the state of California is $100 a day, take it or leave it but first, you have to fight for it. "It's terribly unfair," Starr said."It's our experience that it isn't that easy to get them to pay because we have to prove that Ronald is innocent," said attorney Elliot Peters at Keker & Van Nest.
"If you've been in prison for that you've done, you are entitled to services of parole. But if you've been in for something that you haven't done, you get nothing, no parole, no services, no anything. And the state should take care of you for that," Starr said.
That's all in the future for Ross who says he wants to spend the rest of his years helping troubled youth. The question now is who, if anyone, will help him? Asked who he sees when he looks in the mirror, he said, "I see a whole different person than I used to be, a whole lot different... I love him, now."
If Ross does choose to ask for that $100 per day for almost seven years, his lawyers say they will do the work pro bono. Ironically, California may spend more money on its lawyers than on the settlement.
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