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
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.

Investment in Drug/Alcohol Treatment

June 8, 2009

The National Center on Addiction and Substance Abuse has just released its three-year study.  For every $100 the state of Oklahoma spent on substance abuse over the last 3 years, $2.30 went toward prevention and treatment.  The state can save millions if it spends more on treatment and prevention, Joseph Califano said.

Califano is founder of the non-profit foundation, which is sited at Columbia University, New York. After serving in various government positions in the Department of Defense and practicing as a partner in the well-known law firm of Williams, Connolly & Califano, he served as United States Secretary of Health, Education, and Welfare from 1977 to 1979.  From that position he was fired by President Jimmy Carter, reportedly for his aggressive anti-smoking campaign.

“In terms of public spending, it is an upside-down cake,” Califano said.  “It is an inexcusable waste of money when we could avoid all the human wreckage, and all the public spending that’s imposed on taxpayers if we could just move to prevent this disease, to treat this disease.”

The report ranks Oklahoma twenty-second among the fifty states in percentage of substance abuse spending for prevention and treatment.  “The middle of the pack isn’t good enough…I would like to see us leading the nation,” said Terri White, state secretary of health and mental health and substance abuse services commissioner for the state.  “This report is a national study confirming what we know in Oklahoma, which is when you invest in the prevention of addiction and the treatment of addiction, the overall costs to the state go down even above what you spend.”

Oklahoma’s drug court costs about $5,000 per offender, whereas incarceration costs from $10,000 to $19,000 per offender per year.

Suggestions are that funding more treatment programs could come from a sales tax on alcohol of one or two cents or from the $95,000,000 Oklahoma Tobacco Settlement Endowment Trust.

The report is based on data from 2005.  New Hampshire spent $0.22 per $100, while Connecticut spent $10.39.  Oklahoma’s $2.38 per $100 is about the national average.  The report states that most of the spending by local, state and federal government is for health care from untreated addiction, which causes or contributes to more than seventy other diseases.  In 2005, Oklahoma spent $24,600,000 on substance abuse, while the federal government spent $238,200,000,000.

The Oklahoma Department of Mental Health and Substance Abuse estimates that 5% of the population over the age of 18 needs treatment for alcohol addiction (140,000 people); that 1% the population needs treatment for other types of drug addictions (21,000 people); that 6% of the adolescent population needs treatment for alcohol and drug addiction (about 20,000 young adults); about 7 ½ people need alcohol treatment for each person who needs drug treatment in Oklahoma.

DUI or Drunk Driving Charges, Can You Afford the Cost?

March 25, 2009

Recently noted in news accounts are the costs of a charge of Driving Under the Influence of Alcohol or Drugs.  Minimum court costs are $715.50 in Oklahoma County.  A “typical attorney’s fee” for misdemeanor for a guilty plea is $3,000 to $5,000.  That is for a first-time offender.  Other fees included a drug/alcohol assessment mandated by state law, the costs of driving school and/or substance abuse treatment and/or counseling, all as monitored by probation services, usually by the District Attorney of the county in which the prosecution takes place.

Lurking behind all the court and attorney costs are the effects on vehicle insurance.  These increases are hard to quantify, they vary so much.  These costs can skyrocket, according to John Wiscaver, governmental affairs director for State Farm Insurance in Oklahoma.  He says many insurance companies decline to renew the policy of a driver convicted of Driving Under the Influence.

Then there’s the revocation/suspension of the driver’s license.  In Oklahoma, a conviction for Driving or Being in Actual Physical Control of a Motor Vehicle While Under the Influence of Alcohol results automatically in revocation of the driver’s license, although a modified license can sometimes be obtained.  A modified license enables the driver to drive so long as the vehicle is equipped with a Safety Interlock or similar device. This requires the operator to give (breath) a non-alcohol sample to the machine before the vehicle will start and then at random times while the journey is underway.  These typically costs about $150 for installation and then $75.00 per month, usually for six months.  These have gotten more sophisticated now, so that the machine  even takes a photo of the person giving the non-alcohol breath sample to insure it is the licensee.   Obviously, this latter measure was taken from experience to bring the cat-and-mouse game up to give advantage to the machine manufacturer.

Except for the court costs, all costs mentioned above can increase dramatically when the criminal charge includes  allegations of injury to property, leaving the scene of an accident or injury or death of a person.

The costs described are not my numbers. They came from an article in the local newspaper. However, while my flat fee for some circumstances involving a first time DUI offense might be less than the $3,000.00 minimum quoted, it would not be as low as just a few hundred dollars (as some people expect). Moreover, while it’s always possible to find a lawyer to handle a case for a lower fee, that may actually end up costing you more in terms of the outcome.

In fact, there are many pitfalls in choosing an attorney just based on price alone, such as getting a lawyer who is a high volume attorney that won’t spend much time on your case, or hiring a lawyer without much experience practicing as a criminal defense lawyer. These are dangerous scenarios for you if your case and future are important to you and your family. That’s why I recommend anyone facing a DUI charge to get my “Protect Your Freedom Kit” by requesting it at my website at http://www.oklahomacriminallawoffice.com/freedomkit.php

DUI’s and Manslaughter Result from Parents acting as “Social Hosts”

February 10, 2009

Fifty-one cities and towns in Oklahoma have enacted so-called “social host” laws. Social host liability laws hold non-commercial individuals responsible for underage drinking events on property they own, lease, or otherwise control.

Such liability has long been the law in civil tort law in some states. Such laws in the law of torts (non contract responsibility) are called Dram Shop Acts. Under such laws, one who gives alcohol to another who is apparently already intoxicated is liable in money damages for the harm caused by the other who drank too much. That would include one who drank too much, then drove his car into an accident injuring or killing someone.

Many laws prohibit furnishing alcoholic beverages to underage persons. In contrast to these laws, social host liability laws (also known as teen party ordinances, loud or unruly gathering ordinances) target the location in which underage drinking takes place.

John and Cheryl Kyle of Tuttle, Oklahoma, are not charged with violation of a social host law. They are facing Second Degree Murder charges for serving at their home a teen who allegedly became intoxicated there and then drove his vehicle while under the influence of alcohol, caused an accident and killed a 15-year-old girl. They will appear in Grady County District Court on March 13, 2009, to face those charges.

The Kyles likely wish they were only charged under a social host violation. They are alleged to have given a party on January 11, 2009, in their home. The problem for the Kyles is that one of their guests allegedly did exactly what the social host laws are designed to discourage.

Reportedly, the Kyles admitted to buying $86 worth of alcohol for their party for their 15-year-old son and his friends. The next morning, one of their guests, 16-year-old Lance Davis, left the party. He wrecked his pickup on a rural Tuttle road and killed in the accident was 15-year-old Kaitlyn Mounce of Tuttle. Three other teens were injured, including Lance Davis, who is facing a First Degree Manslaughter charged for allegedly taking the life of Kaitlyn Mounce. First Degree Manslaughter is punishable by not less than four years imprisonment up to life imprisonment.

The City of Edmond was the first city to pass a social host ordinance in Oklahoma in January, 2007. In Edmond, police have made 71 social host arrests during the first year of its existence. The number of arrests has since dropped significantly.

The rationale of the social host laws is to regulate teenage drinking. A 2005 survey of teenagers aged 13 to 18 conducted by the American Medical Association (AMA) found that nearly half of teenagers surveyed reported having obtained alcohol; two out of three teenagers said it was easy to get alcohol from their homes without their parents knowing about it; one-third of teens reported it was easy to obtain alcohol from their own consenting parents; two out of five teenagers said it was easy to obtain alcohol from a friend’s parents; one in four teenagers responded they had attended a party where minors were drinking in front of parents; and for teens who obtained alcohol in the past six months, parents have been the supplier an average of three times in a six-month period.

In contrast to social host liability laws, teen party ordinances make it illegal to host a party where underage youth are drinking. Under this law, the offense is the hosting of the party itself and parents or older friends and siblings can be arrested if they allow a drinking party to occur with their knowledge. Teen party ordinances differ from social host laws in two ways:

• Adults do not need to serve or provide alcohol in order to break the law. It’s enough if alcohol is present at the party.

• It doesn’t require a young person to suffer injury or cause property damages in order to hold the adult host accountable.

Many communities have passed social host and teen party ordinances. For instance, cities in San Diego County, California have either passed or are in the process of passing social host liability laws. Many other cities in states around the country—like California and Connecticut— have also passed teen party ordinances as a way to curb social access to alcohol for young people.

Should the Legal Drinking Age be Lowered?

September 8, 2008

A group of college presidents is urging the lowering of the drinking age from 21 to 18.  They say current laws encourage binge drinking on college campuses.  The college presidents number about 100, and they represent some of the best known universities, like Dartmouth, Duke, and Ohio State University.  Syracuse, Tufts, Colgate, Kenyon and Morehouse are also members.  They actually form a movement.  It’s called the Amethyst Initiative.

They are facing determined opposition from Mothers Against Drunk Driving, who say lowering the drinking age would lead to more fatal car wrecks.  MADD also accuses the college presidents of misrepresenting science and looking for an easy way out of an inconvenient problem.  MADD officials address parents when they claim the 21-year-old drinking age will not be enforced at the campuses of the presidents who are part of the movement, saying parents should be careful in sending their children to those schools.

Both the college presidents and MADD agree that alcohol abuse by college students is a problem.  Some research has found more than forty percent of college students have reported at least one symptom of alcohol abuse or dependance.  One study estimated more than one-half million full-time students at four-year colleges suffer injuries each year related in some way to drinking, including about 1,700 who die in accidents.

Other college presidents disagree with the Initiative.  Donna Shalala, President of the University of Miami refused to sign the Amethyst Initiative.  She was Secretary of Health and Human Services  during the Clinton administration.  “To just shift [the drinking age] back down to the high schools makes no sense at all,” she said.

No Oklahoma college presidents are members of the Amethyst Initiative.  Both the University of Oklahoma and Oklahoma State University have strict laws prohibiting the use of alcohol on campus.  After the alcohol-related death of a fraternity pledge in 2004, the University of Oklahoma enacted a three-strikes policy that can lead to a student’s suspension.

“Since we adopted our alcohol policy three years ago, alcohol-related offenses have been reduced by almost 50 %, “ O.U. President David Boren.  He and Oklahoma State University President Burns Hargis said they had not been asked to sign the Amethyst Initiative and had no plans to sign it.  President Hargis speaks to fraternities and sororities about alcohol awareness.

Of course, there is the obvious argument that young people are allowed to serve (and die) for our country at age 18, vote, marry, and generally, be responsible as an adult at that age ……so why shouldn’t it be legal for them to drink then also? However, the results of lower deaths and accidents for 18 to 21 year olds is evidence of the benefits of keeping the legal age at 21. And even though reducing the drinking age would likely produce more clients needing a criminal defense lawyer….that’s not my goal. I’d much rather see young people have that extra time to mature before being faced with learning how to handle the issues of drinking responsibly.  These issues are difficult enough for older adults, and I know every individual is different — with some more responsible than others at any age…. but, if the older drinking age saves lives and keeps more people from going to jail and ruining their lives I’m all for that.

If however, you or someone you care about is charged with an alcohol related offense, such as DUI or DWI, you should equip yourself with as much education about the process as possible, including learning how to avoid common mistakes, how to choose the right lawyer, and other critical issues. That’s why I encourage you to visit my site at http://www.oklahomacriminallawoffice.com to become educated on these issues. I’ve even added a couple of free videos in the library tab that will be very informative for someone accused of a crime. So be sure and check those out before making any decisions that can forever affect your life.

Breath Tests Found Unreliable & Thrown Out in Washington State Court

February 15, 2008

Once again the courts have gotten fed up with such sloppy and dishonest police practices that they have thrown out the whole procedure until it is fixed. This time it’s in Seattle Washington. King County District Judges Steiner, Phillipson and Chow said there were so many ethical lapses at the state toxicology lab that the breath test result should not be admitted at trial.

The judges said the lab’s work on breath tests over the past several years had so many problems that they were completely unreliable. Therefore, these tests will not be allowed into evidence in this court.

Prosecutors can still pursue their cases with other evidence, such observations of bad driving or field sobriety tests, but not the breath tests. This will affect not only future prosecutions but could allow defendants already convicted to appeal their convictions if based on these breath tests.

Although this ruling affects only the members of the panel of judges who made the ruling, it could influence the other eighteen district judges in the King County, the largest county in the state of Washington, and it could cause judges in other counties to follow suit.

King County prosecutes approximately 5,000 drunk driving cases every year. Previously, Snohomish County, Washington, judges threw out breath test results for about forty cases for the same reason of unreliability of the state lab work.

This ruling was the result of a hearing that lasted for seven days and produced evidence of false certification of solutions used to verify breath tests, improper rejection of data, mistaken switched data, and reliance on software that miscalculated data.

Many defense attorneys from the state joined to pay the $25,000 costs to pay for the expert witnesses, transcripts and other expenses it took to challenge the work of the state toxicology laboratory. One of these lawyers commented that they it was a matter of the integrity of the justice system.

The King County judges told prosecutors they could later try to admit evidence of breath tests after they demonstrated the lab’s practices had been remedied. This will no doubt help put the burden of proof back on police and prosecutors rather than requiring innocent people to prove that false evidence is being used against them.

After all, our country was founded on the principal that the accused is presumed innocent, until proven guilty, not the other way around.

DUI Law Changes – The new 10 Year Revocation Period

August 13, 2007

A new law will into effect in Oklahoma in a couple of months. A first-offense violation of “drunk driving” results in a 6-month revocation of a person’s driver’s license. However, this revocation can be “modified” to allow a first-time offender to drive during that 6 month’s period of revocation so long as the driver is operating a vehicle with a Safety Interlock device, commonly referred to as a “breathalyzer”, installed on the vehicle. This device requires the driver to breathe into a tube to provide the machine an alcohol-free breath sample before the car will start.

An alcohol offense or “drunk driving” offense that would trigger such a 6-month’s revocation is either (a) a conviction for Driving or Being in Actual Control of a Motor Vehicle While Under the Influence of Alcohol (or Drugs) or (b) a breath or blood test result from the driver with is at or above the 0.08% level of Blood Alcohol Concentration .

So much for the first time offender. Second offense revocation does not allow any modification of the revocation, and it is for one year, not 6 months. But, until recently, the second offense had to occur within five years of the first offense to qualify as a second offense. Now, the new law will extend that period of time within which a second offense will trigger the No Modification rule to Ten Years. Any second offense within 10 years of the first offense will take the driver’s license for one year, and will allow no modification to permit driving with the Safety Interlock System in the vehicle.

Does this new law with 5 additional years really discourage illegal drinking and driving? How many drivers know about it when they take the wheel of a car?

And, if such revocation without any modification for one year means a driver will be without a job, will the law really keep the driver from driving anyway? The law can dictate a driver “get another job” that does not require driving, but is that a reality in Oklahoma, which has absolutely no public transportation available?

Wouldn’t it be better to offer such drivers the option of driving lawfully for the year so long as their alcohol intake is regulated by the Safety Interlock System in their car rather than to make them take the choice of not driving at all or instead simply ignore the whole system and take their chances of getting caught driving illegally?

Again, this new law is a reminder of how important it is for anyone who is charged with a DUI to find out how to protect their future. That’s why you should seek out education about how the process works and how to make the best informed decisions….. which is why I urge anyone in that situation to go to my website at http://www.edmondgeary.com and order my “Ultimate Protect Your Freedom” Kit.

DUI and Drug Possession Arrest for Lindsay Lohan Brings Up Questions About Monitoring Device

August 7, 2007

Too much time is spent by television cameras and their audiences concerning themselves with the lives of movie stars. But a recent incident with Lindsay Lohan raised an issue that can affect my clients. She had a bracelet attached to her leg that is supposed to signal any alcohol in her body. Yet she was reported to be leaving alcohol rehab and returning directly to her party routine and got arrested again for Driving Under the Influence of Alcohol in Santa Monica, California. No mention, no repercussions are apparent from this on her alcohol bracelet. And that could be a problem.

The SCRAM (Secure Continuous Remote Alcohol Monitor) alcohol-monitoring device is scientifically designed to signal alcohol in a person’s body. It will signal at approximately the level of 0.02% BAC. This wonderful instrument is sometimes, rarely, accepted by the prosecution instead of jail time. Therefore, we want this instrument to work. We want this science to succeed, because the alternative is time behind bars. We do not want incidents of the bracelet not working or apparently not working.

Why did the SCRAM not signal Lindsay Lohan’s recent [reported] use of alcohol? It may have worked after all. It depends on who received the signal, if any, that Lindsay Lohan was drinking alcohol. Ordinarily, the SCRAM bracelet is set up to signal law enforcement or probationary authorities that the subject is signally positive for alcohol. But in this case, Lindsay Lohan put on the bracelet voluntarily, so she could have set the signal for any alcohol detection to be transmitted to her lawyer, her boyfriend, or to a vacant lot.

The SCRAM makers claim that 40,000 Americans have used it since it was released on the market in 2003. The ankle bracelet is designed to take an air sample at least every hour, to collect the data, and then to transmit the data over a hard wire telephone line for analysis. The manufacturer claims it is the same technology as the Breathalyzer.

Since the bracelet is designed to read the person’s sweat for alcohol, some people claim to have out-smarted the bracelet by putting it under water or putting a piece of baloney between the bracelet and the person’s ankle. The manufacturers of the SCRAM respond that they will eventually catch anyone who tries to cheat the device.

Considering the present overflowing jail population as well as the dubious long-term value of incarceration in many kinds of cases, an option like this ankle bracelet is a valuable contribution to the arsenal of alternatives available to a criminal defense lawyer and his clients. More choices are better, more choices that the courts and prosecution will accept are better.


June 21, 2007

For even those who have not the slightest interest in Paris Hilton, there is still an important issue in the latest news. The issue is: What is an appropriate punishment.? This is always an important issue in public life. It is the issue in every single criminal charge filed or contemplated for filing. It is the issued faced by every jury in Oklahoma because in Oklahoma, it is the jury which decides punishment in every jury trial, that is if the jury finds the defendant guilty at the conclusion of the trial.

There has been a lot of public commentary about whether Paris Hilton deserved a sentence of several months in jail for her arrest for driving with a suspended license. Those who think she is a spoiled brat point to her claim she did not know her license was suspended, that she did not even show up on time for court, that everything about her says she gets preferential treatment all her life and now it’s time for her to face the music. These people are sure that Paris Hilton deserves 90 days in the electric chair.

Those more sympathetic to Paris Hilton’s situation point out that others faced with this charge would ordinarily receive a sentence of straight probation. They say Paris Hilton is being punished excessively for who she is rather than what she did.

Now comes an interesting wrinkle, as there often is where great media attention is focused. The press always seems to find something more when the story is at the top of the news. Now it comes out that the Los Angeles prosecutor who was in charge of prosecuting Paris Hilton for this charge of Driving on a Suspended License has a personal experience with this very charge. At least his wife did. Michelle Delgadillo, wife of Rocky Delgadillo, the prosecutor in the Paris Hilton case, pleaded guilty on June 21, 2007, to the same misdemeanor charge of which Paris Hilton was convicted: Driving with Suspended License. But, unlike Paris Hilton, Mrs. Delgadillo, received a one-year suspended sentence.

Mrs. Delgadillo was not on probation like Paris Hilton was. Instead Mrs. Delgadillo’s license had been suspended for failure to have insurance when she had a wreck. But that was 9 years ago. Mrs. Delgadillo was 9 years late in facing the charge. Mrs. Delgadillo failed to appear in court in 1998, and a warrant had been outstanding since that time. Paris Hilton was only 20 minutes late for court.

So, now who is receiving preferential treatment?