From the August 1999 Idaho Observer:

Innocent man deserves new trial

New Idaho Supreme Court ruling should open Whitely retrial

by Don Harkins

Michael Whitely, 52, was convicted and sent to prison for raping and kidnapping his ex-wife Silvia Canido in May, 1991. Whitely has served over nine years of a 20-year prison sentence for crimes that everybody who has taken the time to look at the evidence agrees he did not commit.

Even journalist Scott Charleston, currently of KREM 2 News in Spokane, WA, believes that Whitely is innocent. Charleson, who at the time was a reporter for KIVI in Boise, began receiving documents from Whitely in 1992. In a letter dated May 14, 1995, after talking to other people that Whitely had contacted and after reading the documents he had been sending, Charleston stated that, “Now I, like them, believe that Mike Whitely did not kidnap Sylvia Canido and did not rape her either.”

Whitely has spent the last nine years using every penny he has to make copies and send documents to everybody he can think of in the hopes that somebody might help him to at least receive a new trial.

How new ruling applies to Whitely kangaroo conviction

Court documents show that Whitely was not allowed to present key evidence into the courtroom of District Judge Brent Moss.

After conviction, Whitely was granted a post conviction hearing that court transcript and the final outcome would define the term “kangaroo court.”

Whitely was able to present the testimony of seven witnesses whose testimony was not heard at the first trial. Whitely was allowed to present new evidence as well.

Whitely's court appointed counsel John Radin was allowed to cross examine Canido. Canido was apparently not able to remember anything of the kidnapping and rape because, according to court transcript, she plead the 5th amendment 71 times because she could not answer Radin's 71 questions on the grounds that shew would be incriminating herself.

The post conviction hearing, which presented new evidence and new testimony and Canido's refusal to answer questions, was dismissed by Judge Moss and Whitely was sent back to prison.

The Whitely case then became a legal tennis ball. He filed a pro se motion to vacate the decision which wass treated by the court as a motion for reconsideration. Judge Moss granted the motion January 7, 1997, set aside the conviction and ordered a new trial.

Curiously, a new trial date was never set. Judge Moss allowed Madison County Prosecutor Kent Higgins to file an appeal with the Idaho State Supreme Court, a move that allowed the proverbial monkey to be removed from Moss' back.

A hearing was granted and held January 8, 1998. The state supreme court denied a retrial of Whitely's case -- not because new testimony and new evidence entered into the record at the post conviction hearing were not credible, but due to procedural technicalities (mistakes) made by Judge Moss' district court.

Whitley's nine year career to prove his own innocence

Whitely has kept a detailed journal of the time and date that he has sent specified documents to specific people. Whitely has sent almost 100 packages out to attorneys, journalists, and court clerks. He is perpetually in search of anybody who might be interested in seeing that justice be done.

Several attorneys have responded to Whitely, have stated that they believe the documentation shows his innocence, that he could be vindicated but that type of justice would cost a lot of money.

Ex-lieutenant governor and ex-attorney general for the state of Idaho David Leroy, in a letter dated January 19, 1999, told Whitely that his representation in the matter would cost $40,000, plus $5,000-$10,000 for investigations and to pay potential expert witnesses.

Whitley, a voracious reader, is also always on the lookout for other information that may assist his being granted a new trial.

On June 18, 1999, Whitely found what he was looking for. That was the day that the Idaho Statesman Journal published a story from the Associated Press headlined, “Man convicted of rape charge to get new trial.”

Supremes ruling tailor made for Whitely retrial

The lead of the story stated that, “The Idaho Supreme Court has agreed with an appellate ruling that a judge was wrong to not let a defense witness testify, so Mark Steven Harris must get a new trial on a 1995 Ada County rape charge.”

“This ruling fits my case exactly,” commented Whitely from his home of nine years at the state correctional facility in Orofino.

The Idaho Court of Appeals had ruled in July, 1998, that 4th District Judge Thomas Neville had abused his authority by not allowing John Williams to testify on behalf of Harris during his trial.

The article further stated that “[T]he justices agreed with arguments that Williams' testimony would have contradicted the story of the woman Harris was charged with raping....and might have led to a different verdict.”

The supreme court ruling further parallels Whitely's case when, according to the AP story, Justice Gerald Schroeder wrote “that Williams' would have cast doubt on the accuracy of the victim's testimony that she was kidnapped.”

People who have known Whitely for 30 years have aroused the interest of national investigative journalists and a group that has formed to fight mandatory minimum sentences has also been looking into the Whitely travesty. Whitely is currently looking into locating pro bono legal counsel to use the precedent-setting Harris case to force the granting of a new trial.

“If I am given a new trial, with a new judge and with the proper amount of media coverage, I am confident that I will finally be declared innocent of kidnapping and raping Silvia and this nightmare will finally come to an end,” said Whitely.

Whitely's day of vindication is coming and it is nine years overdue.

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