Oklahoma State Agency Lacks Sex Offender Treatment Funds

July 30, 2009

Sex offenders are supposed to receive treatment while behind bars so they won’t offend again when they are released from prison.  Now it comes to light that Department of Corrections has space for only 55 offenders, while there are more than 3,000 sex offenders in Department of Corrections custody.

Inmates who are closest to completing their prison sentence are given priority when there are openings because research shows such programs are more effective just before release.  But the resources such as bed space and program manpower limit the size of the sex offender treatment program, and the capacity is not likely to expand, Jerry Massie, Department of Corrections spokesman said.

One criminal defense lawyer in Oklahoma County intends to ask a judge to release his client early from prison so the client can continue at his own expense sex offender treatment which is not available in prison.

Private treatment is available from a few sources, such as Richard Kishur, an expert who created the Department of Corrections sex offender treatment program.  This criminal defense attorney is not the only one who has argued that getting treatment to change future behavior is the main thing society should seek.  Otherwise, a punishing society can insist on putting people into  prison, only to let them out eventually, unchanged.  So if the prison system cannot provide that change, the offender should be kept out of prison to pursue private treatment, outside prison.

Randy Loop, chairman of the Oklahoma Coalition for Sex Offender Management, said community-based treatment is a cheaper alternative than prison.  Loop said recidivism rates are low for sex offenders, which makes them good candidates for treatment in lieu of incarceration.  Loop said studies show 13 to 15 percent of sex offenders are re-arrested.

Prosecutors, of course, prefer that sex offenders go to prison, and if treatment is received in prison, fine.  No surprise there is an emphasis on punishment from them.  Unfortunately, the tax payers are not willing to come up more and more tax money needed for more and more prisons.  The Department of Corrections does not have any sex offender programs out in the community, outside incarceration.  Such a program might possibly be a less expensive approach that could address the need which Department of Corrections is not now addressing.

The Department of Corrections program, for those lucky enough to get in, lasts up to 16 months, depending on the risk of the offender.  It takes a minimum of one year to complete.  There are 200 people on the waiting list for the program which has 55 slots.  The program is designed to help offenders understand the effect that sexual deviancy has on victims and society.  Offenders learn and discuss intervention strategies.  Psychological and psychosexual testing is used to plan treatment.  Polygraph examinations help determine each offender’s progress through the program.

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Oklahoma Defendants Denied Video Evidence

July 26, 2009

The recent controversy from Oklahoma Highway Patrol Trooper Daniel Martin stopping and scuffling with Creek Nation paramedic/ambulance attendant Maurice White brought new focus on the video cameras placed in the Highway Patrol cruisers.

The Department of Public Safety, the parent of the Highway Patrol, spent $1.4 million just in the past year installing the vehicles with these state-of-the-art digital video cameras. Upon completion of the latest order of cameras, there will be 368 of the WatchGuard DV-1 cameras.  Each vehicle’s video system costs about $4,500.00, manufactured by WatchGuard Video LLC of Plano, Texas.

About the expense of the cameras, Lieutenant Colonel John Harris, deputy chief and  director of the patrols’s transportation division said, “It’s an expensive piece of equipment, but you get what you pay for.  It’s a good product for law enforcement.”  Well, what about the tax payers who purchased the equipment?  Don’t they get to see the contents of the video recordings pursuant to Open Records requests?  Too bad.   You don’t get the benefit of the cameras.  You, Mr. and Mrs. Taxpayer, Mr. and Mrs. Voting Citizen, are not important enough. You only get to pay for them.

Some other expenses by the Highway Patrol are $3,621,340 for gasoline since last July and $671,477 for vehicle maintenance since last July.  The Highway Patrol has 350 troopers on patrol for 96,000 miles of road patrolled ever year in Oklahoma.

The new cameras are set to begin recording automatically an time a trooper turns on his front and rear emergency lights. Footage is captured from pursuits, traffic stops and other emergency situations.  Troopers can also manually turn on the cameras in other situations where only the emergency lights are used, such as helping motorists or acting for traffic control. As a criminal defense lawyer, the traffic stops are the situations I am most interested in.

Responsibility for safekeeping of the DVD-recorded video evidence falls to a supervisor. Each of the 13 field traffic troops in the state has a supervisor.  Other supervisors review the recordings from time to time for performance evaluations of the troopers.  These are reviewed especially when a complaint is made.  The proof can be in the recording.

The patrol began using the in-car videos a decade ago.  Some of the troopers were hesitant about using them at first.  “It didn’t take very long for these troopers to figure out that 99.1 per cent of the time, they realize that those vindicate them,” Lt. Col. West said.  In such cases, the Highway Patrol readily discloses the content of the video. They like what’s on the recording, so they show everybody.

But what about the other 0.9 percent of the time?  That is what the public, including criminal defense lawyers, want to know.  What about when the results show a misdeed by a trooper?  Why is the Highway Patrol covering up malfeasance?  “I can assure you it’s not about secrecy,” Lt. Col West claimed.  Certainly not.  Of course not.  How could anyone suspect such a thing?  It’s only about secrecy when it accrues to the benefit of wrong-doing troopers.  When it’s to the benefit of the Highway Patrol, no secrecy is needed.  You can see where the public ranks in the importance ladder of state government.

The Oklahoma Open Records Act exempts public access to the contents of these recordings.  The legislature enacted this change in the law in 2005 at the request of the Highway Patrol.  Of course, the Highway Patrol did release, voluntarily, the footage from Trooper Martin’s scuffle with the Creek Nation ambulance paramedic. There was just too much pressure in that case, and, from that incident, the press learned they are not allowed to get the video footage from Open Records requests.  The only other time the Highway Patrol has voluntarily released video footage was the 2003 killing of Trooper Nikky Green in Cotton County.  The Patrol released the footage to help the Patrol catch the shooter in that case.

Texas, Missouri, and Arkansas make their state police video camera recordings available through those states’ open records, unlike Oklahoma’s denial of such access.  Arkansas releases their videos to the public after a case reaches the initial court stages.  The Texas Department of Public Safety releases videos taken by a trooper dashboard camera after an investigation has been completed.  In Missouri, the video recording is released after the case has been completed at the trial level.   Kansas is like Oklahoma: secret.  Their legislature, like Oklahoma’s, has decreed that their citizens cannot be trusted with such things.


Oklahoma Jail Guards Charged with Murder – Homicide

July 22, 2009

Two guards from the Oklahoma County Sheriff’s staff were indicted a few months back.  They are accused of violating the civil rights of Christopher Beckman, age 36, by beating him to death, more specifically of using excessive force on him.

Detention office Justin Mark Isch and deputy sheriff Gavin Douglas Littlejohn are facing a possible death penalty under this indictment in the U.S. District Court for the Western District of Oklahoma in Oklahoma City.  Unless the Attorney General decides to seek the death penalty, the defendants will face life imprisonment or life imprisonment without the possibility of parole.

An autopsy of Beckman’s body showed he died from blunt force head trauma severe enough to cause brain swelling.  The medical examiner reported, “After extensive investigation, no consistent reasonable explanation for the decedent’s injuries has been proposed….The manner of death is considered homicide.”  Beckman died two days after his struggle with the two now-indicted jailers.

The indictment claims Isch used Beckman’s heat to open a steel door and Littlejohn repeatedly struck Beckman about the head and face.  The Oklahoma County Sheriff fired both men when the indictment was unsealed.  The Sheriff’s office issued a statement that read, “The OCSO is disappointed that these two former employees have found themselves in this situation.”

Notice how that statement puts a distance between the Sheriff and these two employees now as “former employees?”  They were certainly employees at the time of the death.  And notice the use of the passive voice about the men “finding themselves in this situation?   No mention of any wrongdoing, alleged or otherwise.  No mention of regretting the death, much less the alleged act of murder.  No mention that still another person has had his life taken while in the custody of the Oklahoma County Sheriff, this one making it more than 40 in number since January 2000.  No wonder the federal government moved all its prisoners out of that jail.

For whom should a criminal defense lawyer identify here?  Ordinarily, but not necessarily, the criminal defense lawyer can identify with the person accused by the authorities.  But here, the criminal defense lawyer is observing the accused who are former jailers, accused of killing an accused who was awaiting trial.

Christopher Beckman died May 28, 2007, at St. Anthony’s Hospital.  The state medical examiner’s office reported the death as a homicide in June, 2008, and the indictment followed eight months later. Defendants Isch and Littlejohn have not yet come to trial on the indictment.

At the time of the death, sheriff’s spokesman Mark Myers claimed Beckman suffered his injuries during a seizure while being transferred from his cell to a medical wing. Myers said he was being taken from the second floor to the first “when he fell face first to the floor and began convulsing.”  Then, Myers claimed, Beckman became “combative with officers at that point and suffered several cuts to his face.”  Myers said there was a video recording of the incident and said “at no time is there any evidence that any detention officers struck the victim.”

Obviously the Sheriff’s complete denial at the time of death was not enough to overcome the medical examiner’s report that concluded there was no possible way the victim could have died from anything but a homicide.  Obviously, the United States Attorney believed the medical examiner rather than the Sheriff.

Beckman was taken at the time to the medical wing of the jail, where he stopped breathing.  A doctor at St. Anthony’s Hospital wrote in this report that Beckman arrived at the nearby hospital, having been in cardiac arrest for 20 minutes according to the paramedics.  Beckman was in jail facing charges of Driving Under the Influence, Possession of Controlled Dangerous Substances, Driving Under Suspension, and Failure to Show Insurance.


Drunk Driving vs Cell Phones

July 20, 2009

A lot of things impair a driver in his driving.  Only a few are against the law.  Imbibation of alcohol to a certain measured level is one.  Ingesting many listed drugs to any uncertainly-measured level is another.  Reading a book, texting, or talking on a cell phone are not unlawful -per se- unlawful activities to carry on while driving.

What’s the difference?    Any criminal defense lawyer can tell you:  Since Driving Under the Influence of Alcohol is a misdemeanor crime, and Manslaughter First Degree is, among other things, a death caused while in the commission of a misdemeanor, a driver who, while Driving Under the Influence of Alcohol, causes an accident resulting in a death, must answer to a charge of Manslaughter First Degree, punishable up to life imprisonment.  Contrast that with a driver who causes a death by simple negligence, i.e., not in the commission of a misdemeanor, faces only a charge of Negligent Homicide, punishable up to one year in the County Jail.

Should cell-phone users face the same penalty?  Certainly not now, since the legislature has enacted no such a law.  Should the legislature treat the use of cell phones the same as alcohol or drugs?

Most drivers think they are not affected by their own use of cell phones, but these same drivers believe other drivers are definitely distracted by the use of cell phones while driving.  Research shows drivers all overestimate their own ability to dominate the distractions of cell phone use while driving.  Five states and the District of Columbia require drivers to use hands-free devices to talk on a cellphone, but this could only cover up the real problem.

A survey of 1,506 people by Nationwide Mutual Insurance, 81 % of cellphone owners acknowledged they talk on phones while driving with 98% who considered themselves safe drivers.  However, 45 % of them said they had been hit or nearly hit by a driver talking on a phone.  “When we ask people to identify the most dangerous distraction on the highway today, about half identify cellphones,”said Bill Windsor , associate vice president for safety at Nationwide.  “But they think others are dangerous, not themselves.”

Extensive research shows drivers using phones are four times as likely to cause a wreck as other drivers, the same likelihood as drivers with a blood alcohol level of 0.08% Blood Alcohol Content (right on the number of the illegal limit for alcohol consumption).   Moreover, hands-free devices do not lessen the risk and may even worsen the risk by suggesting it is no longer present.

A Harvard study in 2003 estimated that cellphone distractions caused 2,600 traffic deaths annually and caused 330,000 accidents with moderate or sever injuries.   Nevertheless, state legislatures, while after introducing 170 bills last year to address distracted driving passed fewer than 10 such bills.  Oklahoma is one of the states who has rejected any effort to limit distracted driving.  Legislators from Oklahoma themselves use cellphones while driving, some “from when I leave the Capitol to when I get home, and that’s a two-hour driver,” said Tad Jones, the majority floor leader of the Oklahoma House.  He helped block legislation restricting cellphone use while driving.

The cellphone industry argues that from 1997 to 2007, the number of reported accidents fell to 6 million from 6.7 million.  “There are more drivers, more talking drivers, “ said John Walls, spokesman for the Cellular Telecommunications and Internet Association. “If it’s so risky, then logically one would think there would be more accidents.”  David Strayer, a psychology professor at the University of Utah and a leading researcher in the field of distracted driving, counters: “We’ve spent billions on air bags, antilock brakes, better steering, safer cards and roads, but the number of fatalities has remained constant.  Our return on investment for those billions is zero,” he said.  “And that’s because we’re using devises in our cars.”

Better data could tell us more.  But 21 states do not even include a box on accident forms for accident investigators to mark electronic devices as a cause.  Moreover, such forms require the driver to confess his own cellphone use in the accident. This is not the most forthcoming method but a better one is lacking at the present time.

Professor Strayer has spent a decade studying driver distraction.  He uses a driving simulator, operated by a volunteer.  The task is to follow closely a white car that often slows abruptly.  Meanwhile, a voice on speaker talks to the driver, asking questions like, “When you do a pull-up, do your palms face toward you? and”Can you touch your elbow to your ear?”  Little problem usually, the driver sometimes took her hands from the wheel when trying to answer a question like, “True of false: A peanut butter jar opens clockwise,” She was so focused on her call that she seemed to miss surprises, like a body by the side of the road.

Texting while driving was worse.  The driver soon slammed into the rear of virtual car in front of her.  (Fourteen states ban texting while driving).   Strayer’s research uses a small camera to track eye movements, and it shows texting drivers regularly focus on their screens for more than 5 seconds at a time.

This research shows multitasking drivers are four times as likely to crash as those focused on their driving, and studies in Canada and Australia agree.  The highway safety administration estimates that drivers using a hand-held device are at 1.3 times greater risk of a crash or near-crash.  Scientists, such as Steve Yantis, professor psychological and brain sciences at Johns Hopkins University, note that the brain has trouble assessing separate streams of information, even if one is visual and the other aural.

Cellphones are the most common cause of driver distraction.  Conversation with fellow passengers do not present the same danger.  Scientists say listening on the phone requires more than listening.  The words bring up images in the mind’s eye. That is not a problem, but when a car swerves unexpectedly or a pedestrian comes near, the brain lacks the processing power to react in time.

Title 21. Crimes and Punishments
Chapter 24 – Homicide
Manslaughter
Section 711 – First Degree Manslaughter
Cite as: O.S. §, __ __When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.

Title 21. Crimes and Punishments
Chapter 24 – Homicide
Section 701.8 – Second Degree Murder
Cite as: O.S. §, __ __

Homicide is murder in the second degree in the following cases:

1. When perpetrated by an act imminently dangerous to another person and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual; or

2. When perpetrated by a person engaged in the commission of any felony other than the unlawful acts set out in Section 1, subsection B, of this act.


Police get special rights in potential Oklahoma City Criminal Charges

July 17, 2009

When someone is shot, the police naturally investigate right away.  And they will talk immediately to whomever they believe fired the shots.  That is unless the shooter is a police officer. They are protected by a 48-hour halo in which they cannot be interviewed about the shooting.

How many citizens accused of shooting would like this automatic protection? How about the pharmacist who is now charged with shooting the unarmed teenager who lay on the ground after a robbery-gone-bad?  Doesn’t someone in his position believe he is entitled to the same police officers are given?  In the pharmacist’s case, the video tape of the incident is more important than his statements, but his statements will still be used against him.

How many criminal defense lawyers wish their clients had been or would be given this kid-glove treatment?

“If it’s good for the goose, it should be good for the gander, “ Randall Coyne said.  He is a criminal and constitutional law professor at the University of Oklahoma.  “Why should the police officers, who are trained, be given more rights than citizens?”

One justification for the police policy is that the waiting period gives officers more time to sort through the emotional trauma of using force.  “It gives them time to settle down, get their thoughts together and give a complete statement,” one of their attorneys said.

Of course.  But wouldn’t that apply to any person who had been involved in a shooting?  Wouldn’t it be emotional for anyone?  Shouldn’t every citizen be given that benefit?

Oklahoma City’s well-respected Chief of Police, Bill Citty, tried to put the policy in context by explaining that all other witnesses are usually interviewed by homicide detectives before talking to the suspect.  If a 48-hour halo is not needed for suspects, it’s not needed for police officers.  If any who is suspected of shooting another person is presumed to be guilty, then police should be given the same presumption.  Don’t the police trust their own investigators to be fair?

The Oklahoma City Police Department points to other departments that employ the same 48-hour halo policy: El Paso, Texas, Fairfax, Virginia, and Columbus, Ohio.   But others do not: Tulsa, Denver, Colorado, Cincinnati, Ohio, Austin, Texas, Kansas City, Missouri.

The Oklahoma City Police Department, as all police departments, investigates any shooting with an officer involved.  Only one shooting since the late 1980’s resulted in disciplinary action on the officer, and the review board that so found later reversed itself.

The Oklahoma State Bureau of Investigation does not follow this 48-hour halo for its agents or for any other police involved in shootings.  The O.S.B.I. has not had an agent involved in a shooting in anyone’s memory, but their agents assist local law enforcement agencies with police shooting incidents, and they attempt to interview the police officers immediately.


Judges as Umpires in the Justice System

July 15, 2009

The analogy of judges to umpires is intuitive.  Just as the umpire makes the decision when a dispute arises between members of two teams, be it baseball, football, basketball or any other ball, the judge makes the calls in the courtroom between the two litigants, be they civil plaintiff and defendant or criminal litigants represented by prosecutor and criminal defense lawyer.

“Judges are umpires,” then-Judge John Roberts said in his remarks at his confirmation hearing for the Supreme Court.  “Umpires don’t make the rules; they apply them.  The role of an umpire and a judge is critical.  They make sure everybody plays by the rules.  But it is a limited role.”

This umpire metaphor is sometimes a suggestion of judicial restraint, that judges should be arbiters alone, not to set aside precedent or create new law, but only to decide cases on the basis of established law.  At Judge Roberts’ confirmation hearing, Alabama Republican Senator Jeff Sessions stated, “What we must have – what our legal system demands – is a fair and unbiased umpire, one who calls the game according to the existing rules and does so competently and honestly every day.”

Can a judge be using judicial restraint when he discards precedent rather than judicial activism?  Maybe.  Take the 1954 Supreme Court decision in Brown v. Board of Education as an example. This is the decision that ended the “separate but equal” segregated school system in the United States.  Brown set aside the Plessy v. Ferguson decision from 1896.  Yet, according to now-Chief Justice John Roberts, who acknowledged Brown was groundbreaking, but it did not change “the strike zone” because the Supreme Court relied in Brown on a later precedent, a 1950 case in which the University of Texas Law School. In that 1950 case, the Court decided that separate-but-equal was an unattainable standard in state-supported higher education.  Therefore, Judge Roberts said at his confirmation hearing, Brown was not a departure from established law so much as return to it.

“We all bring our life experiences to the bench,” Judge Roberts said.  Supreme Court justices are “supposed to be doing their best” to interpret the Constitution not according to their own preferences but by the role of law, he said.  “That is the ideal.”

“Activism is when a judge allows his personal views on a policy issue to infect his judgment, “Senator Sessions said at the same hearing.  Life experiences brought to the bench and allowing personal views on a policy issue to infect judgment.  These sound pretty close.

This inquiry will not be revived at  the confirmation hearing of Appeals Court Judge Sonia Sotomayor as Supreme Court Justice. “She certainly has a distinguished career,” Texas Republican Senator John Cornyn, and former Texas Supreme Court justice, said.  “The real question is who she views her role as judge: whether it is to advance causes or groups or whether it is to calls ball and strikes.”  The umpire metaphor.

Are judges like umpires?  There are differences.  “Umpires are eyewitnesses,” major league umpire Jim Evans noted.  He umpired from 1972 to 1999 and now runs a school for umpires in Florida.  “As the umpire you are the eyewitness and the judge.  You make your decision based on your own reportage.”

But in a recent case, the Justices of the Supreme Court were eyewitnesses of sorts.  In the 2007 case of Scott v. Harris, the justices considered the case of a motorist named Victor Harris, who was fleeing from the police and was rendered quadriplegic after a police car rammed him to end the chase. After viewing a videotape of the incident, the justices decided by a vote of 8-1 that Harris was not entitled to sue for civil rights violation on the basis of unreasonable search and seizure.  “No reasonable jury” could fail to see the risk Harris posed to the public, Justice Scalia wrote for the majority.  Confidently, the majority posted the videotape on its web site as substantiation for what it considered the inevitable opinion from viewing the video.

But it was not so obvious to other observers.  A study by Kahan, Hoffman and Braman published in the Harvard Law Review showed it was a very mixed bag.  The study presented this video tape to 1,350 people, who were broken down into groups by race, income, Northeastern, Southern, and Western parts of the country, political liberals and conservatives, Republicans and Democrats.  The different groups varied widely in their perception of the video tape.   Maybe the umpire’s call is not so easy, even for the Supreme Court.


A New Standard for Death Penalty?

July 12, 2009

Lawyers for a convicted killer in New York are asking the New York Court of Appeals for a new standard to sustain the death sentence for their client.  Lawyers for Angel Mateo are seeking an interpretation of the New York constitution to require proof of a defendant’s guilt “beyond all doubt” to justify an execution.  They urge that a special rule for death penalty cases is required, a standard higher than the centuries-old one of “beyond a reasonable doubt.”

Mateo confessed in 1996 to killing four people in Rochester.  The Court of Appeals is New York’s highest court.  Observers do not believe the court will adopt the new standard, but the fact that the suggestion has reached this high in the judicial system is a new development.

There is a growing public concern about the possibility that innocent people might be put death.  In state after state, death row inmates have been proven scientifically innocent of the death for which a jury convicted them.  Never until DNA evidence could such a certainty of innocence be obtained.  Now people have doubts about the system that allowed this for so many years, a system that was supposed to prevent this.

Increasing the level of certainty required for conviction is one of a handful of proposals to modify capital punishment that have gained attention around the country in the last few years.  James Liebman, a Columbia Law School professor, has written widely on the death penalty.  He said the proposal to increase the standard of proof in death penalty cases has been endorsed by some influential criminal law experts since the 1960’s.  He favors the idea, which he says “is a very logical outgrowth of the view that we can have a death penalty and make it reliable.”

Frank Keating is a former governor of Oklahoma, and former senior Justice Department in the Reagan administration.  When he was governor, he sought in 2001 to change the death penalty law in Oklahoma to require proof “to a moral certainty.”   “I think if you’re going to take somebody else’s life, you need to be convinced to a moral certainty, ” he said.

The idea of increasing the level of certainty required for conviction is one of several proposals to modify capital punishment in the last few years.  Some of the proponents are death penalty supporters who say the only way to bolster public support for execution is to ensure that only those who clearly deserve the ultimate punishment are put to death.

Prosecutors oppose this “beyond all doubt” proposal because they believe it would block all death penalty cases. They believe it is not possible to eliminate all doubt.  Michael Arcuri, district attorney in Utica, New York, and president of the New York State District Attorneys Association, said, “If that standard is adopted, we will not have the death penalty in New York.”

A New Jersey Supreme Court Justice, James H. Coleman, Jr., dissented in a death penalty decision in 2002.  He wrote that there is a special need of reliability in capital cases.  He said the same standard “used to determine whether an individual should be found guilty of possession of a marijuana cigarette should not be used in determining whether an accused can be executed.”

Another law professor, Robert Blecker, favors the death penalty. A professor at New York University, he suggests that the finding of guilt continue under the traditional standard of persuasion of “beyond a reasonable doubt.”  He says a higher standard would make convictions impossible.   However, he suggests then using the higher burden in the second stage of the bifurcated proceeding, the penalty phase of the trial.  He says when jurors determine whether to sentence someone to death, they should be required to meet a higher standard.  He said that standard should be proof to a moral certainty that a defendant should die.

The justifications for the death penalty, of course, have taken a hit since the implementation of sentences for “Life without the Possibility of Parole.” If such a sentence means exactly that, and it always has in Oklahoma, then doesn’t the state get its due from such a sentence?  No criminal defense lawyer expects a defendant sentenced thus ever to get out.  Nevertheless, death penalty proponents point to societal revenge, satisfaction and other philosophical achievements that they believe only the death penalty can satisfy.  Maybe so.  But it really is not much of a deterrent.  Ask anyone who is facing a death penalty charge or was convicted.  All of them, they never expect to get caught.  So how could the penalty possibly affect them?