Oklahoma Forensic Anthropologist Analyzes Criminal Evidence in Famous Cases

August 6, 2009

Not often do criminal defense lawyers face expert witnesses in the field of forensic anthropology.  This is a field requiring years of tedious work on just one subject, and there are few people who qualify in the field as experts.  Clyde Snow is one of them, and he lives in the Oklahoma City area.

Snow, whom some call the “father of forensic anthropology,” has confirmed skeletal remains of such well-known figures as Tutankhamun, the king from the Middle Kingdom of Egypt, the victims of the Oklahoma City bombing, Dr. Joseph Mengele of Nazi war-crime infamy, and those of President John F. Kennedy.

Snow served as a consultant on the remains found under the house of John Wayne Gacy, who murdered 33 boys and young men from 1972 to 1979 in suburban Chicago.  He found that all but one of these victims had been suffocated, some with plastic bags over their heads and others with ligature strangulation.

Snow even investigated Kurdish deaths in Iraq and testified in Saddam Hussein’s trial.  In 1991, after the first Gulf War, Snow went to Kurdistan, sponsored by Middle East Watch to document some of the gas attacks Hussein ordered in 1988 and 1989.  With a team of Argentine, Guatemalan and Chilean forensic anthropologists he had trained over the years.  They exhumed some mass graves and examined and documented the skeletons.  They took samples from bomb craters in a village that had undergone a chemical attack on which several people were killed and many injured.

The investigators sent the samples to Porton Down in England for analysis.  They found there were traces of serum gas.  This was important to prove that a complex chemical like serum had persisted long enough to be traced, but no one suspected at that time that this evidence would ever be used in any court proceedings.

Nearly 15 years later Saddam Hussein was brought to trial in Iraq.  Snow was called as a witness for the prosecution and asked to present this evidence. And, unlike any other trial Snow had testified in, the accused himself was allowed to cross-examine Snow.  Saddam immediately challenged Snow.  He said Iraq was full of mass graves and asked how Snow knew that ones I had described were not those of Sumerians from thousands of years ago.

Snow had a powerful answer.  He pointed out that the Sumerians had a rich civilization but not likely so advanced that its people wore digital wristwatches such as those found on the Kurdish skeletons.  Furthermore, it was unlikely that the wristwatches of Sumerians, if that is what they were, would all have stopped on August 28, 1988.  Of course, Saddam Hussein went on meaninglessly after that, and the judge had to have him sit down.

During training of his forensic team some of students he was training in Argentina would break down with emotion at a mass grave or morgue.  Snow had to give them some tough love at that point, insisting they cry at home to allow them to go on with their work, to perform professionally regardless of the obvious human tragedies they were witnessing.  But they can have some fun, as well, like when they searched for bodies of Butch Cassidy and the Sundance Kid.

In the Bolivian village of San Vicente, they found a graveyard where the two were supposed to be buried.  They exhumed two skeletons and took one of them back to the United States.  There they extracted DNA, which excluded either Butch or Sundance on genetic evidence.  It turns out the skeleton was that of a German named Zimmerman, an engineer in a mining company in Bolivia. He had died about the same time by accidental gunshot.

At the age of 81, Snow continues.  Most recently he has been testifying in a trial regarding the alleged extrajudicial executions in 1998 of hostages-takers in the siege in the Japanese Embassy in Lima, Peru. Snow is a true professional, contributing much to the criminal justice system over the years,  and we Oklahomans are proud to claim him as one of our own.

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’ Rights to Speedy Trial

March 17, 2009

Locked up for 10 years, just waiting for her trial, she finally faced the jury, and the jury acquitted her.  But how could someone be kept that long without a trial in America?

Kathleen Hilton was charged in Lawrence Superior Court, Massachusetts, of setting a fire that killed five people.  She was diagnosed with mental retardation and was initially found incompetent to stand trial.  After some weeks of being observed at Taunton State Hospital, however, psychiatrists opined that she understood the charges against her and was able to assist her attorney in her defense.

The fire took place in 1999 in Lynn, Massachusetts.  Three children died and a fireman was injured in the fire.  Prosecutors argued that Ms. Hilton set the fire to kill her son’s former girlfriend because the woman would not let her son see his two children.  Her grandchildren lived there, and they survived.  However, other residents, Heriberto Feliciano, his wife, Sonia Hernandez, their two daughters, Sonia and Maria, and a niece, Glorimar Santiago were killed.

The case was delayed from trial by legal battles and rulings back and forth between he Superior Court and the Supreme Judicial Court.  The legal battles concerned the admissibility made by Ms. Hilton when she was arrested three days after the fire.  Allegedly she told police that she had struck a match and dropped it on the wooden porch, which she said she had soaked with flammable scented oil.  Police claimed she told them she watched the house erupt in flames and then walked home.

There was another statement at issue.  Following her arraignment, Ms. Hilton allegedly told a court officer escorting her to a holding cell, “I hope he forgives me.”  When asked what she was talking about, she allegedly said, “I hope my son forgives me.  I could have killed my grandchildren.”

Hilton’s court-appointed lawyer, Michael Natola, argued her statements were made in an attempt to protect her son, Charles Loayza, who was in a custody battle with his girlfriend, Krystina Sutherland, and had himself threatened to burn down her house.  Natola urged that Hilton made up her story because she believed her son, a prime suspect of setting the fire, would go to prison.   Her son had an alibi, however, and the police did not remain a suspect.

The right to a speedy trial is protected by the federal and state constitutions.

The United States Constitution provides in the VI Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Had Ms. Hilton’s lawyer demanded a speedy trial, she likely would have received an earlier trial.  However, it appears her own lawyer was wrangling with the courts for some rulings that her lawyer thought were important enough to wait for the trial.  Facing six counts of life sentence, the stakes were great.  So long as a person or her lawyer is part of the process causing the delay from trial, a person cannot blame the system.

Indeed, The Lawrence Superior Court Rules provided that murder cases take no more than a year from arraignment to trial.  That is speedy, considering all the evidence that must be assembled and disputed by the prosecution and defense and ruled upon by the court before beginning the trial before the jury.  The Constitution of the Commonwealth of Massachusetts, which predated that of the United States about nine years, does not specifically provide for “speedy trial”, but it has a rigorous provision for the Writ of Habeas Corpus, and historically this has been an effective  safeguard against prisoners languishing in jail.

Oklahoma’s Constitution provides:

Article 2 – Bill of Rights     § 20. Rights of accused in criminal cases.

In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed …”

In order to protect a defendant’s right to a speedy trial, it’s important he or she has an experienced and competent criminal defense lawyer so that issues can be dealt with effectively, and timely. There are a number of things to consider when choosing a criminal defense attorney, which is why I recommend anyone charged with a crime visit my website at http://www.oklahomacriminallawoffice.com to learn what to look for when making this critical decision.

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.

Does the Death Penalty Deter Crime?….New Jersey says No

September 15, 2008

The State of New Jersey last December became the first state to abolish the death penalty since the U.S. Supreme Court in 1976 allowed states to impose the death sentence.  The legislature enacted the measure after a special state commission recommended the abolition a year before. New Jersey has not executed since 1963.  After the 1976 Supreme Court decision, New Jersey reinstated the death penalty in 1982..  The state had chosen lethal injection and built an elaborate facility to carry out the injections, but never used.

The commission found the death penalty was more expensive than life in prison and had not deterred murder.  The legislature’s bill was approved by Governor Jon Corzine, a death penalty opponent, December 27. 2007.

New Jersey’s replacement of the death penalty with life without parole spared eight inmates.  Juries had sentenced four dozen people to the death penalty, but all but eight had been overturned in appeals.  A state appeals court ruled that the state’s lethal injection procedure was unconstitutional, and the state rewrote the procedures, but they were never finalized and expired in 2005.

One of those awaiting execution was Jesse Timmendequas, a sex offender whose crimes sparked Megan’s Law.  Timmendequas was convicted of murdering 7-year old Megan Kanka in 1984.  As a result New Jersey enacted a law requiring law enforcement agencies to notify the public about convicted sex offenders living in their communities.  Other states have copied this law, certainly including Oklahoma.

Last year,  the legislatures in Nebraska, Montana, Maryland and New Mexico debated bills to repeal those states’ death penalties, but each measure failed, often by a slim margin. Oklahoma continues to enforce the death penalty and shows no indications of repeal. However, It will be interesting to see if other states find that life imprisonment is less expensive and change their laws, which could cause Oklahoma to rethink this position as well.

Lawyer Prevented from Telling Truth to Save Man

January 14, 2008

What if a lawyer knows the truth about what the prosecution did to obtain the death sentence of a man? What if the prosecution cheated to get that death sentence? Shouldn’t the lawyer be allowed to tell the truth to save the man?

Not according to a previous ruling. Leslie Smith, a Virginia lawyer, had to keep his secret for 10 years because the Virginia Bar Association ethics counselor ruled Smith could say nothing about the wrongful conduct of the authorities in securing the death penalty of Daryl Atkins for robbery-murder.

Now, the Virginia ethics counselor has changed its mind, so Leslie Smith has made public the facts of the prosecution’s misconduct 10 years ago. The result; Daryl Smith’s death sentence was commuted to a life sentence by a state judge in Yorktown, Virginia.

Why was lawyer Leslie Smith not allowed to reveal what he knew, and what did he know? Leslie Smith represented Daryl Smith’s co-defendant, William Jones. Leslie Smith attended his client’s interview by prosecutor, Cathy Krinick. As that interview proceeded, Krinick stopped William Jones, saying “Les, do you see we have a problem here?”. The problem was Jones’ version of the facts, as Jones was telling things, which was to implicate Daryl Smith as the triggerman in the crime.

Krinick then turned of the tape recording for 15 minutes, during which she coached William Jones on the version of testimony he should give to fit the physical evidence in the case, to make a better case for the prosecution. After prosecutor Krinick got William Jones properly prepared in what Jones should say, Krinick turned the tape recording back on and completed the interview.

Daryl Smith’s lawyers knew nothing about this “coaching” of William Jones when Daryl Atkins received the death penalty. Leslie Smith wanted to reveal this false testimony in the case, but Smith had an ethical duty to represent William Jones and to reveal the truth could conflict with the lawyer’s duty to represent the best interests of William Jones and only the interests of William Jones. Jones got a life sentence for his cooperation in helping convict Daryl Atkins.

Leslie Smith understood this possible conflict, so he asked the Virginia Bar Association for permission to reveal the truth ten years ago. The Virginia Bar Association ethics counselor told Smith he had an ethical duty to keep silent. This bothered Smith for 10 years, so Smith asked the ethics counselor again last year, and this time the ethics counselor changed its answer, allowing Leslie Smith to reveal his secret and save Daryl Atkins.

The prosecutor’s office denies the version Leslie Smith gives of the Daryl Atkins interview but does not explain why the interview which lasted from 4:15 pm to 6:16 pm contains only 1 hour and 45 minutes of material on the audiotape. The gap is there.

Did Leslie Smith save Daryl Atkins from execution? Very possibly, but there was another issue pending in the case, that of Daryl Atkins’ mental retardation. The United States Supreme Court had already ruled in this case in 2002 that the Constitution prohibits execution of the mentally retarded. The case was then sent back to Virginia to determine whether Atkins was in fact retarded. The prosecution claimed Atkins was not mentally retarded. Once the truth of Daryl Atkins’ interview was revealed and the Virginia judge commuted Atkins’ death sentence to life imprisonment, however, the issue of whether Atkins is mentally retarded makes moot this issue. Daryl Atkins is no longer under a death sentence.

This case is a good example of how complicated legal issues can be in criminal matters and a reminder of how important it is to seek legal help from a talented, experienced attorney with a reputation for high ethical standards. It’s possible that Atkins could have been executed if attorney, Leslie Smith had not been concerned with ethics to the extent to bring the matter to the ethics counselor a second time. Furthermore, it makes a difference when a lawyer who is considered professional and ethical presents such evidence to the court. The court is more likely to view the information as credible.

I guarantee that anyone facing a criminal charge will want his lawyer to be seen as competent, credible, honest, and ethical by the court. The accused person needs and deserves a fully competent and effective criminal defense.