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Friday, April 14, 2000

New prison threatened
by bickering at Capitol

Bullet The issue: A proposed new prison is in doubt because of disagreement over public or private operation.

Bullet Our view: The Legislature and the governor should resolve the conflict and get on with the prison.

WHEN Ben Cayetano became governor in 1994, one of his first acts was to scrap plans for a major prison on the Big Island that had been prepared by the Waihee administration. But the need for a prison won't go away. Five and a half years later, with hundreds of Hawaii inmates housed in mainland prisons, the prison question is still the subject of wrangling at the state Capitol.

Cayetano has vowed that he will never build another publicly operated prison in Hawaii. He has said he wants to build a prison on the mainland, but seems to have given up on that idea in the face of resistance at the Legislature.

The governor's opposition to a publicly operated prison is based on his contention that the state is having too many problems operating its existing prisons -- a remarkable admission of frustration. A private operation, he believes, would have fewer problems and cost less because it would not be bound by some of the legal restrictions on public institutions.

Rep. Nestor Garcia, chairman of the House Public Safety Committee, and a key figure on this issue, said the governor can't dictate what Garcia should do about legislation for a new prison. Garcia said his main concern is to rehabilitate inmates and he doesn't care whether the facility is publicly or privately operated.

But if Garcia doesn't care, the United Public Workers union certainly does. It wants to preserve its jurisdiction over prison guards, which would be in jeopardy in a privatized facility. The UPW has gone to court in the past to block county governments' efforts at privatization of other operations. And the UPW, like the other public employee unions, has a lot of clout at the Legislature, where many members owe their election to union support.

Legislators were right to reject building on the mainland, even though it would be cheaper. Hawaii prisons should be built in Hawaii.

The money spent on construction would go to local workers and stay in Hawaii. The money spent on operating the prison would also go to local workers and stay in Hawaii. The state would collect taxes on the payments made to those employees. The inmates would have more contact with their friends and relatives, which is important for their rehabilitation.

House Majority Leader Ed Case said the intent of the House was to authorize a privately operated prison but that provision was inadvertently omitted from the bill as approved. Case said he hoped that mistake would be corrected in conference. The Senate supports private operation.

However, it is uncertain that the Legislature will approve a private prison over the UPW's opposition. If it doesn't, it will put itself at odds with the governor and leave the state still without a prison that is sorely needed. This problem will not go away.

Sam Sheppard case

Bullet The issue: An Ohio jury has rejected a lawsuit maintaining that Dr. Sam Sheppard was innocent of his wife's murder.

Bullet Our view: The jury should have found for Sheppard's son.

THE most difficult thing to prove in court is a negative, even when supported by genetic evidence. Dr. Sam Sheppard's son experienced that frustration when an Ohio jury rejected his contention that the Cleveland physician was innocent and had been wrongfully imprisoned for the murder of his wife.

In the most celebrated case of its era, Dr. Sheppard was convicted by a jury in 1954 of bludgeoning his wife to death and served 10 years in prison. In 1966, the U.S. Supreme Court overturned the conviction on the ground of prejudicial pre-trial publicity. Represented by F. Lee Bailey, Sheppard was acquitted in a second trial but died four years later. The television series "The Fugitive" and the 1993 movie of the same name were based on the case.

Prosecutors depicted Dr. Sheppard as an adulterous playboy who murdered his wife Marilyn to end an unhappy marriage. The doctor maintained that a bushy-haired intruder had beaten her to death in her bedroom before knocking him unconscious. The jury that acquitted him found reasonable doubt of his guilt.

That doesn't mean he didn't do it. So Sam Reese Sheppard, the couple's only son, set out to prove to another jury that his father was innocent.

Terry Gilbert, his attorney, harkened to the doctor's version and maintained that the bushy-haired perpetrator was Richard Eberling, a window washer who was later convicted of an unrelated murder. Eberling, who died in prison two years ago, had been found with a ring belonging to Mrs. Sheppard. A woman who had once worked with Eberling testified that he had confessed to her that he had killed Mrs. Sheppard.

DNA testing showed that bloodstains found in the bedroom where she was killed belonged to neither of the Sheppards. Gilbert said that was proof of a third person who committed the murder. DNA components were similar to those of Eberling but inconclusive. The prosecutor dismissed the DNA evidence as "mumbo jumbo."

The evidence should not have been rejected so easily. The DNA testing alone should have been enough for a jury to find a preponderance of evidence -- the required burden of proof in this civil suit -- that Dr. Sheppard was innocent.

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