Wrong Facts in Child Molestation Case Give Wrong Results

June 24, 2009

Bill O’Reilly’s “No Spin Zone” told its viewers last week about “an injustice in Oklahoma.”  The story concerns the charge of child molestation in McAlester, Oklahoma, against one David Harold Earls.  O’Reilly stated as fact that a 4-year old girl accused the man of child molestation, and a 5-year old boy corroborated this allegation.  With these as stated “facts”, O’Reilly then gave himself up to outrage that defendant David Harold Earls was sentenced to only one year in prison for this heinous crime, and why didn’t the Attorney General investigate this and why didn’t Governor Brad Henry do something about this and was everyone covering up because Governor Henry went to school with the sentencing judge so it’s an obvious cover-up. That was O’Reilly’s claim, that the District Attorney and the judge should be reprimanded because the result was not fair from the facts of the case.

No doubt child molestation is a detestable crime, and anyone guilty of molesting a 4-year old child deserves more than a one-year sentence.  In this case, defendant Earls received in addition to the one year sentence 19 years on suspended sentence, little difference.  And Earls is predicted to live only for three more years due to illness, also no significant difference.  Regardless, the issue is the justification of such a sentence for such a crime.

Now the Daily Oklahoman has devoted a front-page story to the case.  That story gives a deeper look at the evidence in the case, critical evidence which O’Reilly did not mention, critical evidence which the District Attorney had to face in deciding whether to take the case to jury trial or offer some plea agreement to prevent defendant Earls from going scott free.

It appears that what O’Reilly gave as “evidence” is only one version from the witnesses.
The 5-year old boy did at one point accuse David Harold Earls of touching inappropriately the 4-year old girl. Then the boy changed his story and denied his earlier statement.

The 4-year old girl did indeed accuse David Harold Earls at one time. However, the child could not testify as a witness, even by remote transmission outside the courtroom.   She came to court to testify as a witness in a pretrial hearing, and Judge Thomas Bartheld, the judge in the case, tried five times to have her sworn as a witness.  The little girl was unable to settle down enough take the oath as a witness.  She never did took it.  Does O’Reilly suggest the little girl could be a witness without taking the oath of a witness?  Would O’Reilly agree to be tried by a jury, facing life in prison, in a trial in which witnesses were not required to take an oath before testifying?  For centuries, all witnesses have been required to take the oath.  Does O’Reilly advocate elimination of this practice?   He simply does not mention this fact.

The physical evidence of abuse was reported to be“consistent with” abuse.   This evidence might be of some help, but only if some witness could link it to defendant Earls, show Earls  was responsible for it.  There were no such witnesses, so it was of no help.

The District Attorney, J.D. Miller, stated his staff knew they could not prove their case against defendant Earls.   The standard of persuasion for proof to a jury is “beyond a reasonable doubt,” and the prosecution staff recognized this case was overflowing with doubts.  So the prosecution chose to get the most they could get against Earls.

Apparently O’Reilly would have had the prosecutor present the case to the jury, obtain an inevitable verdict of “Not Guilty”, and then blame the jury or blame the prosecutor for presenting a faulty case.  Blame somebody, anybody, just get headlines.  O’Reilly does not understand or forgets that the prosecutor does not manufacture evidence.  The prosecutor can only present the case as he finds it.

O’Reilly sent his reporter, Geraldo Rivera, a law school graduate himself, with his television crew and a microphone to Judge Barteld’s chambers, most certainly for an ambush interview. When Judge Bartheld declined an interview, they claimed the judge was “hiding.”  Surprise. More sizzle, more conspiracy, no facts.

The 4-year girl’s grandmother clearly states the District Attorney and the judge in this case did the best they could with the evidence.  “We were over a barrel because of the children’s inability to testify with any consistency,” the grandmother stated.  “One minute they would be OK with testifying, and the next minute they would want to play or be crying to get out of the courtroom.”  The children’s mother said it became apparent the children were incapable of testifying.  (“INCAPABLE OF TESTIFYING!”)  Each time they were questioned about the abuse, the children had behavioral problems.  “For my children, this was the best deal, “the mother said.  O’Reilly does not even mention the approval of the one-year sentence by the  victim’s grandmother and mother, does not mention their stated understanding of why the plea agreement was offered by the District Attorney and approved by Judge Bartheld.  Why did O’Reilly omit any reference to the mother or grandmother?  Why did he omit any reference to the inability of the children to testify?

Now defendant’s daughter, Denise Earls, now 38 years old, last week claimed Earls raped her when she was a child.  Does this that make the evidence any better in the case under discussion or does that just make Earls look more guilty?  One cannot help wondering why this woman waited for so many decades before coming forward, why she did not speak up earlier to protect other girls from defendant Earls if her claim is true.  Regardless, it’s too late for new evidence for the case under discussion.  Defendant Earls plead and was sentenced over a month ago, and there is no legal provision for the District Attorney to undo that deal now.  New allegations of past wrongdoing by this defendant do not change the fact that there were no witnesses available at the time Earls’ case was called for jury trial.   And the addition of such circumstantial evidence, if ruled admissible, would not have proved Earls committed this crime in this case.

The 4-year old child and her mother have now moved away, trying to get on with their lives.  One other victim in this case was the truth. The deliberate twisting of the evidence by Bill O’Reilly was unfortunate, obviously given to add sensation at the expense of truth.  I, for one, used to enjoy O’Reilly’s take.  Anytime I watch him from now on, however, I will wonder whether he is fairly and truthfully presenting the facts.


Sex Crimes and Sex Offender Registration Requirements in 2009

April 5, 2009

When the federal government stepped into the sex registration business, it doubled the number of Oklahoma’s sex offenders who must register for life. In 2007, Oklahoma adopted a classification system to comply with the federal Adam Walsh Act., more formally known as the Adam Walsh Child Protection and Safety Act. Adam Walsh, of course, is the murdered son of John Walsh, creator of the television show, “America’s Most Wanted.” Since his young son was kidnaped and murdered in 1981, John Walsh has been a leading advocate to increase punishment and monitoring of sex offenders. He helped found the National Center for Missing and Exploited Children.

In 2007, Oklahoma adopted a new three-tier system of registration for those living in Oklahoma who have been convicted of a sex offense. The intent of the system is to prevent any re-offending by those registered. Failure to register is punishable by prison time.

But critics point out that the registration system assumes every person is the worst possible offender. They say the system uses a sledge hammer to crush a flea. Oklahoma has about 6,000 registered sex offenders. Of these, 5,026 are required for life. Another 228 of them are required to register only for 25 years, and in the lowest tier, 840 registrants in tier one are required to register for only 15 years. Those required to register for life have been classified as aggravated or habitual.

This three-tier system did not exist before 2007. The new law required the state to evaluate and reevaluate every sex offender for placement in the new classification system. While only 40% of the total registration population used to be assigned to the aggravated or habitual category, now more than 80% are in that category, earning the requirement for lifetime registration.

The classifications are determined by a committee comprised of prosecutors, counselors and “victim advocates.”. It is rumored that no one wants to be the one on the committee who appears “soft’ on classifications, perhaps out of fear that the committee might classify someone in a lower category and then that person re-offend. It’s always safer to classify everyone in the maximum category, especially when the only ones who might complain are sex offenders, no big voting block.

However, Randy Lopp, head of the Oklahoma Coalition for Sex Offender Management, says offenders should be classified according to their risk level rather than their offense of record, as they are now. He says “accepted research” in the field indicates that seventy-five percent of sexual offenders are not re-arrested in a fifteen-year period.

An even more understanding approach is offered by Richard Kishur, Ph.D., an Oklahoma City counselor who specializes in treating sex offenders. He suggests that ideally sex offenders should be evaluated before they are sentenced to determine if they are a risk to re-offend. This assumes that such evaluation can be accurately done, and Dr. Kishur and other experts would say it can be. This approach would allow important resources to be aimed at those few individuals who are a significant risk to society, persons from whom society needs protection, while allowing other sex offenders to live their lives without such maximum, unnecessary intrusion as now required by life registration.

For instance, doesn’t it seem overly harsh to require lifetime registration for an individual who, when somewhat inebriated, urinated against the side of his truck, while being seen by some women? When someone is required to register as a sex offender, they are governed by many restrictions, such as where he can live. Furthermore, there are reports of family members of the convicted sex offender having authorities periodically show up at their homes, barge into the home without providing any information identifying themselves, and proceed to look through the entire home to make sure the “sex offender” is not living there (in a restricted neighborhood). This kind of situation where even relatives are harassed points out the potential dangers of a system that assigns never ending penalties for minor offenses.

For all of these reasons, even a relatively minor sex charge can cause severe repercussions for an individual and therefore, it’s critical someone charged with a sex offense seek an experienced and competent criminal defense lawyer. My site at http://www.oklahomacriminallawoffice.com provides advice on how to choose the right criminal attorney to protect your rights and I encourage you to visit it for more information on this important consideration.


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.


New Ethics Law Passed to Prevent Hidden Gifts to Lawmakers

July 30, 2008

Oklahoma becomes the first state to prohibit political action committees from giving money to other political action committees. This is one of the new rules enacted by the state Ethics Commission which took effect July 1st. Another new rule permits gifts to legislators and state elected officials only up to $100.

The new rules take effect because the legislature offered no objection this past legislative session to the new rules proposed by the Ethics Commission.

Under the old rules which allowed political action committees to give money to one another, the original contributor of money could become hidden as there was no end in one committee giving money to others and back again.

The rules on gifts to law makers and state elected officials had permitted gifts up to $300.00 per calendar year. That figure has been changed to $100.00. Also, law makers and state elected officials had been required to report gifts only in the value of $50 or more. One of the new rules taking effect with the other rules requires lobbyists to report spending more than $10 on a state official or aide during each six-month period.

Of the $207,764 spent last year on legislators by lobbyists, records show that 24% of that went to season tickets to Oklahoma University and Oklahoma State University football games. More than 90 legislators received O.U. season football tickets. The season ticket costs $379, with the University paying $300 last year and the legislator paying the balance of $79.00. Now, O.U. will be allowed to pay only $100 of the cost of each ticket, and the legislator or elected state official will have to pay the $279 balance.

As citizens in Oklahoma, we want our elected officials to be impartial in their decisions and not influenced by hidden gifts. So this is good for our state and for all those who are affected the elected officials decisions.

Lobbyists spent more than $200,000 for legislators in the year 2007, mostly on meals, gifts and tickets. This was a 20% increase over the previous year, according to Ethics Commission records.