Hilary Swank was sitting in "my" Brentwood coffee shop yesterday morning and her presence reminded me that she executive produced and starred in "Conviction," a film I regard as the most important one made this decade or even during the past ten years because it is about a practice that has rotted the core of American criminal due process. That practice is the widespread faking of evidence, according to studies on the subject, by both police and prosecutors against people known to be innocent in order to look tough on crime for their own career advancement.
Swank hauled Sam Rockwell back to the cinematic slam for her film and that was a good thing. Rockwell's Green Mile portrayal of Louisiana psycho murderer "Wild Bill" Wharton bouncing around his death row jail cell was a standout performance. He shows us another facet in 'Conviction' as Kenneth Waters, a Massachusetts man wrongly convicted of a murder because of police and prosecutorial corruption.
Rockwell's Conviction performance is enhanced by double Oscar winner Swank and Oscar-nominee Minnie Driver. Together, they perform like a well-matched troika, the Russian three horse team that pulls sleighs, in which the middle horse provides steadiness and stability while the two outer ones gallop with abandon. Driver provides that "centerdness" with a humorous, smoldering femininity, allowing Rockwell's and Swank's characters to respectively express the gut wrenching emotion of a man unjustly convicted and the journey of a sister trying to free him against all odds.
It's a predicament that many have shared and still do. Evidence fakery and coerced lying under oath by law enforcement officers happens way more often in America's justice system than most know or would ever believe because too many people think stories like Waters' are aberrations or exaggerations. In fact, that's what Hilary Swank thought at first. "There's a part of you that has to be like, 'this could never happen.' And then you realize that it is happening."
"With impunity, prosecutors across the country have violated their oaths and the law, committing the worst kinds of deception in the most serious of cases. " So begins Justice Derailed, a study of state and local law enforcement officials researched by the Chicago Tribune. "They have prosecuted black men hiding evidence that the real killers were white. They have prosecuted a wife hiding evidence of her husband committing suicide. They have prosecuted parents, hiding evidence their daughter was killed by wild dogs. They do it to win. So do federal officers found a study titled Win at all Costs by the Pittsburgh Post-Gazette.
"Hundreds of times during the past 10 years, federal agents and prosecutors have pursued justice by breaking the law. They lied, hid evidence, distorted facts, engaged in cover-ups, paid for perjury and set up innocent people in a relentless effort to win indictments, guilty pleas and convictions … Rarely were these federal officials punished for their misconduct. Rarely did they admit their conduct was wrong."
The "Conviction" story has all of the above abominations and more. It is the stuff of classic fighting-the-system outrage that only gets most people's blood boiling and talking for a couple of hours after leaving the theater because they don't think what happened to Rockwell's character could possibly ever happen to them.
Kenneth Waters was a small town, former juvenile delinquent hell raiser convicted of brutally murdering an Ayer, Massachusetts neighbor woman, Katharina Brow, in 1983 because a police officer intimidated people into falsely testifying against him. Waters, who was certainly capable of killing (a bar fight scene where he threatens a man's life with a broken bottle makes that all too clear), spent 18 years in prison while his sister, Betty Anne Waters (Hilary Swank) had to earn a high school GED before she could get into college and earn a law degree in order to represent and free her brother.
She finally did so by locating murder weapon blood evidence thought to have been destroyed, and then taking it to attorney Barry Scheck (Peter Gallagher) and his Innocence Project, an organization that works to exonerate wrongfully convicted people through DNA testing. Those DNA tests did not exist at the time of the murder and showed the blood was not Kenneth Waters'.
So he was exonerated and released forthwith, right? Not according to the film, and this is one place where the film story strays from its marquee billing as "The incredible true story of Betty Anne Waters." That divergence is for the sake of dramatic license says Margaret Coakley, the county district attorney who put Kenneth Waters in prison: "This is Hollywood. The public should be aware that 20 years of history was collapsed to fit into two hours. This is not a documentary."
In the script, Coakley drags her heels and files unconscionable new CYA charges against Waters which are classics of prosecutorial corruption. "That sequence of time is simply inaccurate and wrong," says the real Coakley. "Kenny Waters did not sit in jail for months after (the defense team's) DNA results cleared him. Fact is, he was released from jail in less than two weeks." Coakley is now the Massachusetts Attorney General. She's also the Democrat who lost her bid for Teddy Kennedy's U.S. Senate seat to Republican Scott Brown because she was too arrogant to campaign for it, according to the Massachusetts media.
Lest I forget, publicity seeking attorney Gloria Allred had a problem with the script as well: "No proper respect or compassion has been shown by Ms. Swank for the murder victim and her family." Allred vented at a recent news conference together with Melrose Brow, the daughter of the woman Waters was accused of murdering, who spoke for her siblings: "We are not Hollywood people like you are. We are just children of a murder victim. Nevertheless, we believe that victims matter. My mother was not just a name, and was not and is not a person who should be used as a line in a script or just a way to make a profit for the entertainment industry."
In response, Conviction's three producers offered a private family screening: "We have the deepest compassion and sympathy for the family of Katharina Brow. (The screening) will no doubt answer many of their questions surrounding the unthinkable and horrific tragedy that befell their mother." Opinions about what, if any, obligation the makers of "Conviction" had to the murdered Brow's family continue to be expressed. Perhaps the most realistic comes from producer Nathan Folks:
"It is obviously a very sensitive, very painful issue when you're dealing with such a tragic story, but 'Conviction' is about the Waters family, not the Brow family and the filmmakers obviously met with the people they felt necessary for the film. They were not under any legal or moral responsibility to take things further than that."
Once free, Waters found that the police officer who had caused his misery could not be criminally prosecuted because the Massachusetts statute of limitations had expired. Kenneth and Betty Anne Waters then spent the next 26 years suing the town of Ayer and its police department for coercing false testimony to convict Kenneth and withholding evidence that could have cleared him. The town and its liability insurer finally agreed to pay 3.4 million dollars last year, but it was too late for Kenneth. He had been killed in an accident eight years before.
Is your blood boiling? Still think Waters' case is an isolated justice system distortion? Perhaps several examples from my personal files will turn up the heat.
John Pozsgai had been hit with the largest federal fine and longest prison term in the history of environmental crime as of 1989 when CNN assigned me to a series of stories on his case. I also wrote a December 11, 1990 story about Pozsgai for the Village Voice. From the outset, I found Pozsgai's was plainly a political prosecution of a poor man who couldn't fight back that was prompted by George H.W. Bush's "no net loss of wetlands" policy. According to the local buzz I heard while asking around, the government zeroed in on Pozsgai after a neighbor man with the hots for Pozsgai's daughter called the Corps of Engineers with tales of environmental destruction after she refused the man's sexual advances.
I personally inspected the government evidence against Pozsgai and found it to be bogus. That was outed in the appeals court. There, Solicitor General Kenneth Starr admitted the government offered "no direct evidence" (see Guilt by Inference, Washington Times Editorial, August 8, 1990) that Pozsgai had committed a crime, but here's the good part. Starr argued that Pozsgai's conviction should stand because --- are you ready for it? --- the jurors "could reasonably infer" the government's false allegations were true and the judges agreed.
Stephen Matthews and his father, Melvin, were convicted of sexually molesting Stephen's young son. In "The Jaundiced Eye," a documentary I produced about the case, Stephen said he realized he was gay after his son was born. His ex wife then took up with a man who hated gays, and together they fabricated wild stories about the child being raped with a machete, among other sharp objects, during group sex sessions involving his straight grandfather and grandmother.
Raped by a machete? Must have been some horrendous physical evidence, right? No, there was no evidence the sadistic claims ever happened. But evidence isn't required when the prosecutor and the jurors believe that all homosexual males and their parents are pedophiles.
The Branch Davidians
The evidence found for the film "Waco: The Rules of Engagement" (WTRE) by director William Gazecki, Michael McNulty and me showed the Branch Davidian religious sect was attacked by the Bureau of Alcohol, Tobacco and Firearms to scare Congress into passing new Clinton administration gun control laws which would increase its power and for racial hatred reasons. Half the Davidians were black, the ATF had a long history of racial hatred and several ATF agents confirmed that by telling me they were angry that sect leader David Koresh was "miscegenating with niggers," among other facts the elite media conveniently omitted from its reporting in order to adhere to the 90s code of political correctness.
You may recall that to even suggest then that an official story was untrue drew vicious allegations from both the media and the Clinton administration of being "anti-government," "anti-police," and a militia member, among other ruinous charges that stuck at the time. When the ATF attacked, the Davidians fought back. The FBI took over and prepped the Davidian building to burn. Davidians who tried to escape the inferno out the back of their building (not compound, which is a specifically used psychological warfare word intended to demonize those inside a structure) where news cameras were not allowed were gunned down by government forces. I took major heat for pointing out that Bill and Hillary Clinton had called the shots against the Branch Davidians, not Attorney General Janet Reno. She was the designated bad guy who then used threat of exposing that secret to extort a second term as AG. Those facts were slammed as "conspiracy theories" by the Clinton protectors and their media allies until verified years later by Clinton's former political adviser Dick Morris.
Federal officials told lie after lie in sworn testimony to Congress and a federal court. The bottom line is that virtually all of the government's official story is not true and that includes the special investigation done by former U.S. Senator John Danforth. I refused his subpoena because it was clear the fix was in and because Danforth would not end the onerous surveillance I was under or investigate the threats from federal law enforcement I'd received while making WTRE. Many of those threats were made by strangers at places I happened to be and who knew the contents of my emails and phone calls.
After the Davidian trial, jury forewoman Sarah Bain said "The federal government was absolutely out of control there. We spoke in the jury room about the fact that the wrong people were on trial, that it should have been the ones that planned the raid and orchestrated it and insisted on carrying out this plan." That jury found the Davidians innocent of all but a minor charge among the gazillions levied against them (overcharging is a common tactic).
To save face, federal officials worked the judge over behind closed doors and got him to impose egregious sentences, which the jury thought were unjustified. The appeal of those sentences pleaded by JFK's Attorney General, Ramsey Clark, may as well have been made to a brick wall because the government's honor was at stake.
That's also where Kenneth Waters found himself while suing for his murder framing. Some never get that far.
Donald P. Scott
Donald P. Scott refused to sell his scenic Ventura County, California ranch to the U.S. National Park Service. A short time later, Scott was shot dead in his own home by a Los Angeles Sheriff Department SWAT deputy during a 1992 drug raid of his property in conjunction with National Guard troops, DEA agents and Park Service gunslingers, among other alphabet agencies, because an agent claimed he saw marijuana plants growing on Scott's property. Repeated searches found no evidence of marijuana or any other drug.
The Ventura County district attorney investigated and found that asset forfeiture of Scott's property was the real motive for the raid. Then counter attack cover-up began. The Sheriff's Department cleared all raiders of wrong doing, the California Attorney General criticized the Ventura DA for daring point an accusing finger at law enforcement's own, and the deputy Sheriff who killed Scott sued the Ventura DA for defamation. But the court ruled in favor of the DA and ordered the deputy to pay $50,000 for the DA's legal bills. Meanwhile, the government has Scott's property, last I heard, and he's still dead. Dead is also the status of a number of people who may have been murdered to keep law enforcement criminality from being publicized.
Fred Conrad, MD
The M.D Anderson head of patient care, Fred Conrad, was ready to tell me how the Drug Enforcement Agency was threatening him, physicians and even cancer patients who wanted to legalize marijuana's medical usage for certain conditions like chemo therapy nausea. But before he could talk, someone walked into his office in that world-renowned hospital full of people and shot him in the head. Houston police I spoke with told me privately they thought a law enforcement person did it, but that they couldn't prove anything. Conrad's 1982 murder remains unsolved.
A motion picture about the ATF raid on the Branch Davidians and the following siege by the FBI and special US Army and British troops was close to being finalized with Warner Brothers by Wolper Productions development executive Janet Burrows-Tapia in conjunction with my company. But that was before her body was found in a closet of her home with a bullet in the back of her head after about a month's worth of death threats I received to stop the project. It died with Burrows-Tapia because nobody at Warner, Wolper or anywhere else dared speak with me to revive it. Burrow-Tapia's 1999 murder remains unsolved.
I have gone so far into the overkill zone because Kenneth Waters' story is only the visible part of a much larger criminal injustice iceberg few dare acknowledge and most news media have no cojones to expose. Rarely do honest law enforcement officials either for reasons ranging from job protection, to pension protection to political and peer pressures to maintain the blue wall of silence. The fact that politicians keep passing increasing numbers of petty new laws doesn't help matters. Their sheer accumulation over the years means that I may be unwittingly breaking some law by writing this review and you may be in violation of some statute by reading it.
So as you watch "Conviction," please keep in mind that what is happening to the late Kenneth Waters on the screen could happen to any of us, even you.
Dan Gifford is an national Emmy-winning, Oscar-nominated film producer and former reporter for CNN, The MacNeil Lehrer News Hour and ABC News.