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.


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.


Criminal Defendants Wrongly Convicted by False Evidence—– More wrongdoings by Joyce Gilchrist

July 4, 2009

The ghost of Joyce Gilchrist remains with us.  Gilchrist is the forensic chemist who worked for the Oklahoma City Police Department who fudged, concocted, created and lied about evidence in order to help the prosecution wrongly convict several defendants.  One of her better known victims was Jeffrey Todd Pierce.  Gilchrist lied about microscopic evidence to get him convicted, and only after he had served 15 years in prison did Gilchrist’s wrongdoing come to light.  Gilchrist was fired, Pierce was released and received $4 million in damages from the City of Oklahoma City.

As the questions rose over the years about Gilchrist and her work, people continue to wonder:  Why did then-District Attorney Bob Macy continue to use Gilchrist as a witness to convict people, even after her fabrication of evidence and unsupported testimony had been called into question?  Why did Oklahoma County judges continue to allow Gilchrist to testify, even after Gilchrist’s employer, the City of Oklahoma City, was trying to fire her?

Of course Gilchrist has always denied all wrongdoing and claimed the City of Oklahoma City was racially prejudiced against her when the City fired her.  That accusation went nowhere in court.  Gilchrist has never admitted doing anything wrong despite a tsunami of evidence against her.

The latest case of Gilchrist’s malfeasance is the case of David Johns Bryson.  After serving 17 years in prison, Bryson has been released.  Gilchrist’s evidence against Bryson was reviewed by another expert, Brian Wraxall, chief forensic serologist at the Serological Research Institute in California.  Last November, he looked over Gilchrist’s lab notes from the Bryson trial and found serious flaws.  Gilchrist had received some of her training at the institute, and Gilchrist was as student of Wraxall.

Bryson was charged with rape.  Key evidence used to convict him were hair, blood and semen samples.  There was also other evidence linking Bryson to the crime, including eyewitness testimony and injuries to the attacker’s penis.   Gilchrist testified the hair, blood and semen were “consistent” with Bryson.  Better DNA techniques later developed showed the samples were not a match to Bryson, but other scientists concluded, based on a review of Gilchrist’s work done at the time, that Gilchrist should have excluded Bryson even before the 1983 trial if Gilchrist done her science correctly, regardless of DNA testing.

“Ms. Gilchrist failed to run a substrate or background control from the robe as she was taught in my laboratory, “Wraxall reported.

Gilchrist’s hair analysis was already discredited.  In 2001, the FBI conducted reviews of Gilchrist’s work and concluded the hair evidence did not match Bryson.  When asked about this finding, Gilchrist, in a deposition, said, “That happens all the time.  Hair examination is very subjective and experts may or may not agree on the conclusions that are reached.  So if someone else agrees or disagrees with my findings, I don’t put much weight in that, “she testified.  Do you think Gilchrist admitted at Bryson’s jury trial that hair testified was a “subjective” finding about which experts disagree all time?  More likely Gilchrist gave the jury the impression her findings carried the force of objective science, inexorable conclusions, undeniable fact.   But that was her testimony to get convictions.   Her later deposition was to save her own hide.

Whether Gilchrist was even qualified to conduct such tests was an issue in the lawsuit filed by Bryson.  Gilchrist’s college transcripts show she had some trouble performing academically in some of her courses.  She was placed on academic probation plural times and academic suspension.  She was questioned at her deposition about her sometimes sub-par performance at the FBI Academy as well.  For instance, she misidentified some hair samples on tests.  But she graduated from the Academy and from college.

Gilchrist at one point stated she regretted not expounding on her answers more in trials.  She did not specifically state she regretted putting so many innocent people in prison with her false testimony.

And, despite the criticism that was becoming more public, then-District Attorney Bob Macy backed her fully and continued to use as his expert witness.  She got convictions, so why quit?  Even after the Oklahoma City Police Department tried to can her, Mr. Macy wrote on her behalf and wanted to continue to use to get more convictions.  When he was asked about the falsification or tampering with evidence, he expressed indignation that anyone would question “law enforcement” or its motives.  In other words, just take our word for it and don’t ask any questions, exactly what the public did for too long.

It took the heroic act of U.S. District Judge Ralph Thompson to bring Gilchrist down.  Only someone so respected as Judge Thompson, when he ruled so unequivocally and extensively about her mistakes, could call attention to her wrongdoing and stop her.  No state judges had the courage or the understanding to do it;  they simply rubber-stamped the prosecution to assist in sending one after another innocent man to prison.


Law Enforcement Agent will Not receive honor

May 25, 2009

Four law enforcement officers died last year from on-duty traffic accidents, but only three of them will have their names inscribed on the National Law Enforcement Officers Memorial in Washington, D.C.

Special Agent Robert P. Flickinger will not be included.  Flickinger was a 16-year veteran of the Chickasaw Nation police officer, or, as it is called, the Chickasaw Lighthorse Police Department.  He died March 7, 2008, in a two-car crash on State Highway 199.   Flickinger tried to pass another car on a hill east of Madill, according to the Oklahoma Highway Patrol, which resulted in the accident.  Flickinger had been with the Chickasaw Nation since 2004, was a graduate of the FBI National Academy and a member of the Lighthorse scuba diving and SWAT teams.

“The only reason given by the national memorial was that he was passing in a no passing zone,” Dennis Lippe, state law enforcement memorial chairman, said. “We and [Chickasaw Lighthorse] Chief of Police Jason O’Neal do not agree that a mistake in judgment should keep an officer from being honored – if it was in fact a mistake in judgment and not some other reason like falling asleep at the wheel or a medical reason,” Lippe said.

Two Oklahoma officers being honored this year also may been at fault in traffic accidents.  Latimer County Deputy Dustin Duncan was headed home on a Le Flore County highway when his patrol car crossed into oncoming traffic and collided with another vehicle. Kiefer police sergeant Les Wilmott, rear-ended a tractor-trailer on a Rogers County highway.  The case is closed, but highway patrol investigators never determined the accident’s cause.

If human error should disqualify officers from having their names engraved on the national memorial, Lippe said, then many officers would not be honored.  Flickinger was added to the Oklahoma Law Enforcement Memorial last May, “and he will continue to be honored in Oklahoma,” Lippe said.

Being at fault did not prevent the inclusion of Jeffrey Rominger, an officer with the Oklahoma City Police Department, in the Oklahoma Law Enforcement Memorial. The City of Oklahoma City even named a stretch of Interstate 40 for officer Rominger, who died in 2000 while cresting a hill in pursuit of a car on the wrong side of Interstate Highway 40 at highway speeds.  The driver of the car he was chasing, Patrick Kiplinger, was killed, along with Kiplinger’s 15-year old passenger nephew.  Also killed in the inferno was an Oklahoma Highway Patrol trooper, Matthew Evans, who was coming from the opposite direction, in the correct lane of traffic, unaware of the wrong-way, high-speed chase coming directly at him.

Kiplinger’s only known crime that night was what Jeffrey Rominger told the dispatch.  “I’ve got one running from me.”  Would Kiplinger have continued in the wrong direction had he not been pursued?  Whatever Kiplinger’s past criminal record was, was this chase worth it?  The wrong way on an interstate highway?  If the vehicle coming from the other direction had not been another law enforcement, this “accident” would likely be given a closer look.   Should shooting into a crowd of people be permitted?  Isn’t that analogous to speeding the wrong way on an Interstate highway cresting a hill?  If to anyone else, why not to law enforcement?  Only to stop the most dangerous crime, of which there is no evidence here.  Perhaps the City of Oklahoma City thought that since officer Rominger gave his life in the event, he deserved to have that stretch of highway named after him.  It is small comfort to the citizens of Oklahoma City or anyone passing through on Interstate 40, however, that this is what it means to “Protect and Serve.”


“Drug Arrests” and Your Fictional Constitutional Rights

April 20, 2009

Police search vehicles every day on trumped up excuses and cover their tracks later.  Who cares?  Certainly not the citizens of the United States.  The protections citizens believe they have from the Fourth Amendment concerning unreasonable search and seizure simply do not exist in reality, on the street where the uniformed police always push the envelope in the name of “fighting crime.”

A pastor in Arizona was beaten by Border Patrol agents when they insisted on searching his car at a Border Patrol checkpoint.  The pastor thought he had rights protected by the Constitution.  The Border Patrol knew otherwise because they were more powerful and they could later justify pretty much anything they did because, no matter what they do, they are “fighting crime.”

Steven Anderson, pastor of Faithful Word Baptist Church in Tempe, Arizona, was stopped by Border Patrol checkpoint 87.5 miles from the Mexican border.  He was well within the United States.  When stopped, he refused to allow a search of his rented vehicle.  He had no drugs and no other occupants in his car.  That did not stop the Border Patrol, who used a drug sniffing dog, which, the Border Patrol claims, made a “hit” on Anderson’s car, thus giving them “probable cause” to search his car for drugs. When Anderson refused to allow a search, the police broke both front  windows, immediately began using a Taser gun on him and continued to so, bashed his head into the broken glass on the car window, dragged him out and shoved him on the ground and stood on his head, regardless that he never physically resisted at all,  As blood streamed over his face, they handcuffed his hands behind his back, put him in their trailer, and the officers came in to laugh at him.  Eventually the police drove him to be given eleven stitches but took as long as possible, with stops to exchange casual chat with some fellow officers along the way, before allowing Anderson to use the rest room.  This is standard procedure, in case you don’t know.  Police officers think it’s funny to degrade arrested suspects by making them wet their pants.

Anderson says the drug dog did not bark or give any other indication, but the Border Patrol insists the dog “alerted” to drugs in the vehicle.  Of course, no drugs were found in the vehicle, and we have only the Border Patrol’s word that the dog ever made any indication.  Some have claimed in the past that police goad  drug dogs to make a sign when the police want them to.  Then, the police can just point to the dog as though the dog is some sort of scientific instrument with objective reliability as the predicate for their actions.  But in many cases, as in this case, no one can say the dog ever made any indication at all.

After arresting him, the police told the bloodied Anderson this would never have happened if he had just answered their questions when they stopped him.  Anderson called them on their story switch and said “I thought you said you searched my car because the drug dog hit on it.”

The United States Supreme Court ruled in 2000, in Indianapolis vs. Edmond that police cannot set up roadblocks with drug dogs to randomly search vehicles for drugs.   However, an earlier exception had been made for the Border Patrol.  The Court in 1976 decided United States vs. Martinez-Fuerte, there is an exception to this rule which allows Border Patrol the unique power to establish checkpoints for seeking illegal immigrants, allowing a secondary purpose of finding drugs.  Therefore, while ordinary police cannot set up a checkpoint with a drug-detecting dog within the Fourth Amendment, the Border Patrol is allowed to do so, and the Border Patrol is not required to have “probable cause” before using their drug-detecting dog on a vehicle.  Moreover, the Border Patrol is allowed to establish checkpoints up to 100 miles inside the United States.

There is another exception allowed for checkpoints that applies to ordinary police.  That is the checkpoints set up to find drunk drivers, which was allowed by Michigan Department of State Police v. Sitz, decided by the U.S. Supreme Court in 1990.

Anderson was pulled from his car by officers of the Arizona Department of Public Safety, tasered and bloodied by the glass the police broke.  He was then jailed overnight.  Certainly he is startled that the rights he thought he had, the rights talked about on television and in classrooms are trumped by the reality of armed uniformed police who are on a mission to stamp out crime, and who are given more and more leeway by the courts.

Who cares?  No one, apparently.  The United States Supreme Court has continued over the years to chisel away at the rights of citizens so as to make things easier for police to act with impunity.  The Supreme Court has even mused about eliminating the exclusionary rule, the “Fruit of the Poisonous Tree” doctrine, which requires suppression of evidence illegally obtained by the police.  You can imagine how illegal activity by police will flourish if that action is taken. The Congress has never given any indication it believes its citizens are at risk from police increasing intrusion.  It, like the press and most Americans, believes that American citizens are at risk from “crime,” not from the crime chasers.

Only the Bill of Rights limits the use of government power.  Police naturally push the boundaries of the permitted use of government power- always.  They think they are doing their jobs by impinging on the right of citizens whenever a criminal case might be made.  Once in a while police officers are caught red-handed lying, trumping up evidence or the like, just to make a case against a suspect the police “believes” really has it coming.  This corruption in the system is inherent where the word of police is taken and rarely can be challenged factually.  The more slack leash the United States Supreme Court gives them, the police will be able to make a few more criminal cases stick, of course, but the more diminished will be the rights of the American citizen.  The Bill of Rights becomes just a wall ornament.


“Safe” Taser Guns Cause Deaths in Arrests

February 26, 2009

The use of Taser guns is increasing. Police departments continue to buy more and more of them. Just in the month of December, 2008, police departments in Maryland, Florida, New York, Michigan and Pennsylvania purchased new electric stun guns. Meanwhile, the police in Durham, N.C., plan to double their existing inventory of Tasers from 110 to 235, and a police chief in the Atlanta metro area hopes to add 1,000 more stun guns.

The Taser stun gun is the most common brand of CED, conductive energy device, which fires 50,000 volts of electricity through its target [person] from as far away as 35 feet. This causes uncontrollable muscle contraction and temporary immobilization.

Tasers are considered safe by the police, a safe alternative to guns or other types of force such as nightsticks, perhaps safer for the police than their having to use of physical force to enforce restraint in various situations including arrests of criminal suspects. “Tasers generate a lot of volts but not a lot of amps,” Deputy Sheriff Dan Deering, a Taser trainer for the Jackson County (Michigan) Sheriff’s Office, said. “It’s not the volts that kill you. It’s the amps.”

Others say the stun gun is dangerous. The City of San Jose, California, paid $70,000 to the widow and child of Edwin Rodriguez after police in 2005 fired Rodriguez with a Taser. Family members had driven Rodriguez to the hospital when he suffered an attack of his chronic schizophrenia. However, when he resisted the treatment at the hospital, police pinned him to the ground and stunned with a Taser, allegedly four times. He died in less than an hour, the fifth person to die in San Jose from being shocked since San Jose Police were issued Tasers in 2004.

Amnesty International reports that 334 people have died in the United States between 2001 and August, 2008, after being stunned by Tasers, including 55 people in California and 52 in Florida.

Police like to point out that the mere display of a Taser often accomplishes compliance. Likely this is true. But critics believe the very confidence police have in Tasers may cause the police to underestimate their potentially lethal power. According the Associated Press, the Taser Company claims their stun guns cannot kill. The Amnesty International report concedes that most of the 334 deaths were attributed to other medical factors such as drug intoxication, but the report included coroners’ conclusions that Taser shocks did in fact cause or contribute to at least 50 of the deaths.

Researchers commissioned by the Canadian Broadcasting Corporation also concluded that over time, Tasers can begin to malfunction and fire with up to 50 percent more power than their manufactured limits. The study found even stun guns firing at expected electrical levels carry some risk of inducing cardiac arrest.