JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 9 ISSUE 29 - SUMMER 2005

J ustice:Denied has published severalarticles related to the wrongful mur-

der convictions of four innocent men inBoston based on the perjured testimonyof one of the actual murderers – a mob hitmanwho was an FBI informant protected fromprosecution by that agency. (See, FBI’s Leg-acy of Shame, Justice:Denied, Winter 2005,Issue 27, p. 24.)

Compelling evidence supports that Freder-ick Weichel is another innocent victim ofthe FBI’s intimate alliance with Bostonmobsters. On the basis of one suspect eye-witness, Weichel was convicted in 1981 ofa murder that Thomas Barrett later con-fessed to in a letter and during conversa-tions. Barrett has been directly linked toJames “Whitey” Bulger – a notorious Bos-ton mobster protected from prosecution formany years by the FBI. (See article on p. 34of this issue.)

As of September 2005 Weichel remains impris-oned, as he has been for 24 years. Weichelwrote Justice:Denied a one page letter that wasaccompanied by a Boston judge’s October2004 decision vacating his conviction and or-dering a new trial. The state appealed to theMassachusett’s Supreme Court, where briefingwill be completed in October 2005. Weicheltold Justice:Denied the judge’s decision “saysit all.” He is right. So Justice:Denied is lettinghis story be told by way of the judge’s decision.Due to space considerations, redundancies, ex-traneous information and most case citationshave been edited out. The full Weichel decisionis available on JD’s website at,http://justicedenied.org/legal/weichel1004.pdf.

COMMONWEALTH OF MASSACHUSETTSNorfork.ss.Superior Court Case No. 77144Commonwealth v. Frederick Weichel

MEMORANDUM OF DECISION ANDORDER ON DEFENDANT’S MOTION

FOR A NEW TRIAL

1: INTRODUCTION

On August 20, 1981, a jury convicted defen-dant Frederick Weichel (“Weichel”) of firstdegree murder in the Superior Court, NorfolkCounty, Barton, J., presiding. The SupremeJudicial Court (“SJC”) affirmed his convic-tion on September 2, 1983. See Common-wealth v. Weichel. 390 Mass. 62 (1983). InAugust 1991, the defendant filed a motion fora new trial pursuant to Mass. R. Crim. P. 30(b)arguing ineffective assistance of counsel. Bar-ton J. denied the motion in a margin decision,and the defendant did not appeal. Weichelnow moves for a new trial pursuant to Mass.R. Crim. P. 30(b) on the grounds of newlydiscovered evidence and ineffective assis-

tance of counsel. On December 20, 2002, Igranted the defendant’s motion for an evi-dentiary hearing based solely upon the claimof newly discovered evidence and denied themotion on all of the other grounds asserted.

During the evidentiary hearing on July 22, 23,31, August 7, September 15, and October 23,2003, the defendant presented testimony re-garding two forms of evidence to support hisnewly discovered evidence claim: (1) an alleg-edly exculpatory letter dated March 19, 1982,sent on or about that time, to the defendant’snow deceased mother, Gloria Weichel, and (2)Thomas Barrett’s alleged confession to killingRobert LaMonica to Sherri Robb, a socialworker with whom Barrett lived with periodi-cally in the 1980’s. The defendant contendsthat this evidence would have been admissibleat his trial, that it casts real doubt on the justiceof his conviction, and that justice requires anew trial so that he can admit this evidenceand a jury should have the benefit of consider-ing it, together with all the other evidence.

II. BACKGROUND

Robert LaMonica (“LaMonica”) was shot andkilled near his apartment building after park-ing his car shortly after midnight on May 19,1980. At the time of the shooting, four youthswere gathered across the street at Faxon Park.These four eyewitnesses heard four shots andsaw a man run from the direction of the shots,past the park, and into the passenger side of aparked car, which quickly left the area. Noneof the witnesses saw a driver.

That night and into the morning, theprosecution’s key eyewitness, John Foley,worked with police to put together a compos-ite drawing of a man strongly resemblingWeichel. The next day, Foley chose thedefendant’s photo from an array at the police

station. About ten days to two weeks later,Foley again identified Weichel as the shooterby selecting the defendant’s picture in a photoarray with the police present. On June 12,1980, during a police-escorted drive with thevictim’s two brothers, Foley drove around thestreets of South Boston in a van and againidentified Weichel as the man he saw run byFaxon Park on the night of the shooting.

At trial and on appeal, Anthony M. Cardinale(“Cardinale”), Weichel’s trial and appellatecounsel, presented alibi and misidentificationtheories, with Cardinal raising the issue ofmisidentification and other errors on appeal.Only one of the four youths gathered in FaxonPark on the night of the shooting, Foley, coulddescribe the man he observed running in thedistance. On cross-examination, Cardinalchallenged Foley about his identification ofWeichel and surrounding circumstances in anattempt to inject some degree of doubt into thejury’s mind as to the accuracy of Foley’scomposite drawing and identification of thedefendant. Foley’s trial testimony revealedthat he obsered the man running for approxi-mately seven seconds, just one second ofwhich he viewed the runner’s full face. Inaddition, Foley and his three companions inFaxon Park admitted to consuming alcoholicbeverages prior to arriving at the park.

After reviewing the transcript of thedefendant’s trial and 1983 appeal, it is clearthat the case against Weichel was not one ofoverwhelming guilt.

III. FINDINGS OF FACT

BARRETT’S MURDERCONFESSION LETTER

From Wrongful MurderConviction To Multi-

Millionaire In Five YearsBy Hans Sherrer

Five years ago, Justice:Denied reported onDeWayne McKinney’s exoneration of

robbery and murder convictions and his re-lease after more than 19 years of wrongfulimprisonment. See, “The 19-Year Ordeal ofDwayne McKinney: Injured and on Crutches30 Miles Away From a Murder Is FinallyRecognized as an Alibi,” Justice:Denied, Vol.1, Issue 11. This is an update about what Mr.

McKinney has ex-perienced since hisrelease.

DeWayne McKin-ney was convictedin 1982 of murder-ing the night man-ager of an Orange,California BurgerKing during therobbery of $2,500 from the restaurant.

McKinney was first implicated in the crimewhen one of the restaurant workers saw his

McKinney continued on page 26

Convicted of Murder Committed By FBI Protected MobsterThe Frederick Weichel Story

DeWayne McKinney nearhis Hawaii beachfronthome in July 2005. (Allen J.Schaben / LAT)

Weichel continued on p. 34

JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED PAGE 26 ISSUE 29 - SUMMER 2005

mugshot and thought he looked similar to thegunman. The three other eyewitnesses — allrestaurant workers — then identified McKin-ney when shown his photo. Police had a file onthe 20-year-old McKinney because he hadbeen in trouble with the law as a juvenile —most seriously when he was sent to the Califor-nia Youth Authority for attempted robbery.

During his trial, the prosecution relied onthe testimony of the four eyewitnesses iden-tification of him as the killer. The prosecu-tor — Orange County Asst. DA TonyRackauckas — said about the eyewitnesstestimony, “About the only way to bring inbetter evidence is if we had a movie of it.”

In convicting McKinney, the jury rejected hisdefense that at the time of the robbery he washome in Ontario, 30 miles from the BurgerKing. McKinney’s alibi was supported byseveral people who testified they were withhim. The jury also rejected the fact that McK-inney is several inches shorter than the shooteras described by eyewitnesses, and at the timeof the crime he was using crutches to walkbecause of a leg injury — while the shooterwalked without a limp or artificial aid.

McKinney was sentenced to life in prisonwithout parole after the jury deadlocked onthe death sentence sought by Rackauckas.

As the years passed, McKinney earned hishigh school equivalency degree, becamereligious, read avidly, and on the dark side— he was stabbed on two occasions, con-tracted tuberculosis, and attempted suicide.

Then, in 1997, a prison inmate wrote a letter tothe Orange County public defender. He ex-plained that he knew who had been involved inthe Burger King robbery and murder, and thatMcKinney had nothing to do with it. The letternamed the two men involved in the crime —the getaway car driver and the shooter.

The public defenders office began an investi-gation that lasted more than two years. Theyreconstructed the crime and re-interviewedall surviving witnesses. In addition to thenew evidence of the getaway drivers’ admis-sions, two of the eyewitnesses recanted theiridentification of McKinney as the killer.

Based on the new evidence that McKinneydidn’t receive a fair trial, but that he wasinnocent, in September 1999 the public de-fenders’ office filed a motion for a new trial.After Orange County DA Rackauckas —who as an assistant DA had been McKinney’strial prosecutor and sought his execution —conducted his own investigation, he ownedup to his error and agreed not to oppose the

motion. In January 2000 McKinney’s convic-tion was vacated and the charges dismissed.

McKinney was released from the state prisonin Lancaster on January 28, 2000. From thetime of his arrest he had been incarcerated formore than 19 years. He was forty years old,and he didn’t have a Social Security number,a change of clothes, or even a toothbrush.

After his release, McKinney filed a lawsuitagainst the City of Orange and the detectivewho constructed the case against him. Thesuit was settled in the summer of 2002 for$1.7 million. He received a check for about$1 million after deductions for attorneysfees and expenses.

Having heard horror stories of how moneywas squandered by lottery winners and otherpeople who suddenly came into wealth,McKinney put the money in the bank as hescouted around for a place to invest it.

McKinney always had a head for business,he said recently, “I was working and sellingsince I was a kid. Selling papers. Washingdishes. Bagging groceries. Selling candy.Cut people's grass. Everything I wanted, Iworked and saved for all my life.”

His first investment was when he boughthalf-a-dozen condominiums in La Mirada -a Los Angeles suburb.

He then learned that it was possible for anindividual to buy and operate automatedteller machines (ATM). The ATM’s ownerwould be paid a commission on each trans-action. After meeting a man whose com-pany sold and installed ATMs, McKinneyrecruited two acquaintances to work oncommission to find locations. His first ma-chine was installed at a Unocal station inSanta Ana. Within a few months McKinneyhad 20 ATMs around Southern California.

However he felt uncomfortable in So Cal. Hesaid recently, “In California, it was a nervousfeeling. LA to me is almost like being inprison. The nervous energy, it never ceased.”

When McKinney and his wife went to Hawaiiafter their wedding, he found he liked the pace

of life there. So in 2003 he sold his ATMs inSo Cal and bought a beachfront five-unit fixerupper apartment near Oahu's North Shore.They lived in one unit and rented the rest.

McKinney dug right in finding good loca-tions for an ATM. He paid a generous findersfee to anyone who gave him a tip on a loca-tion where he was able to install a machine,and he soon had ATMs all over Oahu.In 2004 McKinney and his wife divorced. Theysplit the ATMs in the family business. Withina year McKinney built his business back up tothe 20 machines he had before the divorce.

After the divorce McKinney sold for $2.7million, the five-unit apartment he boughtfor $740,000 in 2003. He used the money tobuy real estate on Oahu, including a beach-front home in Honolulu.

Although he didn't go to college and had nojob skills when he was released from prison,McKinney credits much of his success to askill that he honed in prison - making the mostof his connections. In prison you need to knowthe right person, and treat that person right toobtain a hard to get item or to get somethingdone. That is called networking in the busi-ness world, and McKinney has proven sincehis release it is a skill he has in spades.

Less than six years after his release from 19years of wrongful imprisonment, McKinneyis a multi-millionaire living a life that mostpeople only dream about. In July 2005 hetold a Los Angeles Times reporter, “I finallyfound my place. I enjoy being able tobreathe the fresh air, feel the wind on myface and know I’m free. I enjoy watching thesun set and the sun rise. I lay in my housewith the doors open, feeling the breeze.”

Source: From Prison to a Paradise for ATMs, StuartPfeifer, Los Angeles Times, July 19, 2005.

McKinney continued from page 9

do that. Once pardoned, however, a personloses “standing” to petition the state for anew trial. Thus, a pardon permanentlycloses the principal avenue to clearing awrongly convicted person’s record.

“I continue to be surprised at how mucheasier it is to convict someone who isinnocent than to correct a wrongful con-viction,” said David Dow of the HoustonInnocence Network. “It should be simpleto correct these things. It shouldn’t be abureaucratic nightmare.”

In 2001, the Texas legislature enacted alaw that allows exonerated prisoners to

Sutton cont. on page 44

Sutton cont. from page 25

DeWayne McKinney at one ofhis ATM machines in Hawaii.