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Wrongful conviction hearing in Orange today for woman found guilty of criminal mischief
[September 17, 2010]

Wrongful conviction hearing in Orange today for woman found guilty of criminal mischief


Sep 17, 2010 (The Orlando Sentinel - McClatchy-Tribune Information Services via COMTEX) -- An Orange Circuit judge this morning granted a request to have defense attorneys depose the Orlando Police officer at the center of the case of the young Haitian woman who was likely wrongly tried and found guilty of a felony.



A jury found Malenne Joseph, 29, guilty of felony criminal mischief in June. But she and her attorneys have maintained that she is innocent and a victim of misidentification.

This morning attorney Nicole Benjamin said she wants to hear from Officer Jose M. Varela about how he came up with Joseph as a suspect in the December 2007 case of a Conway-area woman's home that was severely damaged by a subcontracted painter.


Benjamin has learned that Varela told prosecutors he identified Joseph through a vehicle tag number provided to him by the victim in this case. He said the victim saw the suspect using the vehicle and the tag number was linked to either Joseph or a relative.

However, the woman who owns the house that was damaged, Kittsie Simmons, told the Orlando Sentinel a couple of weeks ago that she spotted a black man driving by her house soon after the crime, followed him and then provided that tag information to police. She said she suspected that man knew something about the damage to her home.

Simmons refused to speak about the case on Thursday, noting that the State Attorney's Office has reopened an investigation into the defense team's claims that another woman named Merline is probably the true perpetrator.

Shortly after the hearing started this morning, Orange Circuit Judge Walter Komanski granted the defense a motion to depose Varela as well as Kittsie Simmons. Those depositions should show if there is a conflict in their accounts of what happened to generate Joseph as a suspect.

Today Benjamin said there appears to be a conflict. She also wants to understand how her client was linked to this crime.

"We have to connect the dots," Benjamin said after the hearing. "I need to know how he got to Z from A, and right now, I don't know. That's the big issue." Benjamin said her client never worked as a painter.

Asked if she thought this was a case of sloppy police work, Benjamin said, "I don't want to say there was sloppy police work here because I don't know Officer Varela. I don't know what was done. I just know what wasn't done." Komanski also granted motions by the defense to have Joseph declared indigent for costs and to have an investigator probe the case as the defense prepares for a hearing next month on their motion for a new trial.

That hearing, however, may never materialize if prosecutors through their investigation determine the wrong woman was tried and the true criminal never prosecuted.

Joseph, the mother of two young girls, has said she had nothing to do with the crime and never worked as a painter.

"They put the wrong people in jail for nothing," Joseph said Wednesday.

Varela said he came up with Joseph as a suspect using vehicle-tag information. Specifics about that were not included in court records. The tag information also was not provided to the defense as part of pretrial discovery.

However, prosecutors on Thursday handed the defense team drivers license information and a photo for "Merline," another woman from Haiti who shares some facial similarities with Malenne Joseph, her attorneys said.

"How did you connect Ms. Joseph to the crime. That's all I really want to know," Benjamin said.

The prosecutor in this case, Assistant State Attorney Mexcye Roberts, walked out of the courtroom today, saying, "I have no comment." Varela's record has come under scrutiny in separate cases recently.

Edith Francis of Orlando provided the Orlando Sentinel with records from a 2006 Internal Affairs investigation into an altercation she had with Varela at a South Orange Avenue 7-Eleven. Francis' complaint led to a verbal reprimand for Varela.

A second case recently emerged in which Varela was accused of police brutality for slamming a man he was arresting early this year into the wall of an elevator at The Waverly tower downtown.

That incident was caught on video, and the man plans to sue the city. A new OPD Internal Affairs investigation looking at that incident was started, according to Dwain Rivers, the Internal Affairs manager.

Joseph had left the Orange County Jail late Wednesday after prosecutors agreed to her release despite her June conviction.

Her release came soon after her attorneys met with prosecutors and shared their concerns about the case and their belief that someone else likely committed the crime for which Joseph was found guilty.

State Attorney Lawson Lamar's office began investigating those claims Wednesday just hours before Joseph's release.

While the ongoing investigation suggests a misidentification occurred, prosecutors were not ready to go that far on Thursday.

The Joseph case raises questions about the responsibilities of law enforcement and prosecutors when confronted with information that raises serious doubts about a successful prosecution. But it also illustrates the difficulty in revisiting a case that culminated with a jury's guilty verdict.

George "Bob" Dekle, a former long-time prosecutor and current legal-skills professor at University of Florida's law school, said no details he has heard about the case have convinced him that a wrongful verdict was reached, but he added there was some suspicion.

When prosecutors are faced with such claims, Dekle said, "You drop back and punt. You say, 'Let's look this thing over and make sure.' That seems to be what they [prosecutors] are doing. What you need to do, if you're a good prosecutor, is check it out." Raising doubt Joseph's new attorneys, Nicole Benjamin and Paula Coffman, have tried to determine how exactly the Orlando officer concluded she was the perpetrator.

Once Joseph was a suspect, the owner of the damaged home and her sister identified Joseph through a photo and said she was the person who did the work. Pete Spaziano, who subcontracted the job, also positively identified Joseph as the painter during her trial in June.

Spaziano recently recanted his trial testimony; however, after learning Joseph stood only 5-foot-2. He insists the woman he hired to do the work was 5-foot-6 or taller.

Early in the case, Spaziano provided the painter's cell-phone number to police. That number was later linked to a woman named "Merline." Defense attorneys suspect Merline actually committed the crime but was somehow mistaken with "Malenne," their client.

A woman answering that phone number in 2007 admitted to a police officer soon after the crime that she damaged the home, but she never showed up for a meeting with the police.

"The phone," Coffman said, "is the whole case." The phone number did not link Joseph to the crime, though.

Anthony Colarossi can be reached at acolarossi@orlandosentinel.com or 407-420-5447.

To see more of The Orlando Sentinel or to subscribe to the newspaper, go to http://www.OrlandoSentinel.com. Copyright (c) 2010, The Orlando Sentinel, Fla.

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