Oklahoma Jail Guards Charged with Murder – Homicide

July 22, 2009

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

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

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

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

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

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

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

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

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

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


Drunk Driving vs Cell Phones

July 20, 2009

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Police get special rights in potential Oklahoma City Criminal Charges

July 17, 2009

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

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

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

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

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

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

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

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

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

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


Judges as Umpires in the Justice System

July 15, 2009

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

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

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

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

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

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

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

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

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

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


A New Standard for Death Penalty?

July 12, 2009

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

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

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

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

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

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

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

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

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

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


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.


Criminal Defendants Constitutional Right to Confrontation

June 26, 2009

Your constitutional rights.  The United States Supreme Court tells us what they mean. The latest revelation is Melendez-Diaz v. Massachusetts, an appeal from a conviction for drug distribution.

At the defendant’s trial, to prove that the substance which the defendant possessed was, in fact, cocaine, the prosecution had offered into evidence a report from the chemical lab.  According to Massachusetts law, the report was accompanied by affidavits by the chemists who analyzed the substance called “certificates of analysis.”  In one of these certificates, the signatory swore he or she found the stated results.    But the chemist himself or herself did not appear in court to testify.  Defendant’s lawyer objected to the admission of this evidence at the trial without the defendant having the opportunity to “confront” this witness and cross examine him or her, just like any other witness before the jury.

The Massachusetts procedure provided that such forensic analysis was to be admitted into evidence as prima facie evidence of its conclusions.  That is, the report could be contradicted by scientific evidence offered by the defendant, but, if uncontradicted, that would be the only evidence offered as to the chemical character of the substance.

The Supreme Court decided today that this procedure deprived the defendant of his Right to Confrontation under the Sixth Amendment to the United States Constitution. “Petitioner was entitled to ‘be confronted with’ the persons giving this testimony at trial, ” the Court held.

The Sixth Amendment to the United States Constitution provides:

Amendment VI
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.

Similarly the Oklahoma Constitution provides in Article 2:

§ 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 or, where uncertainty exists as to the county in which the crime was committed, the accused may be tried in any county in which the evidence indicates the crime might have been committed. Provided, that the venue may be changed to some other county of the state, on the application of the accused, in such manner as may be prescribed by law. He shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf. He shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their postoffice addresses. (emphasis added)

In 2004, the Supreme Court had ruled that the Confrontation Clause really meant what it said in Crawford v. Washington. In Crawford, the defendant’s conviction had been based in part on evidence at trial of the tape recorded statement of a witness made outside court, but the witness was not presented in open court for cross-examination by the defendant. The Supreme Court reversed that conviction

Massachusetts had argued (and all law enforcement with them) that these chemical reports are not “testimonial,” that the witnesses who perform these chemical tests and complete the accompanying affidavits as their test results are not “accusatory” witnesses like eyewitnesses or arresting police officers, and therefore the “Confrontation” provision should not apply to them.  They should not be required  to appear in court.  These witnesses, the respondent argued in this case, were not like the “notorious” ex parte witnesses used to convict Sir Walter Raleigh of treason in 1603 by reading the written statements of witnesses instead of producing live witnesses, the case said to be the source for our England’s and our system’s belief in the Right of Confrontation.  But Justice Scalia noted that the Sir Walter Raleigh case was not the source of the Right of Confrontation but instead its violation in convicting Raleigh was a scandal to the jurisprudence of England because the Right was already well established.

“It’s just too much trouble for our chemists to have to come to court all the time,” runs one of the arguments.  The Supreme Court said, “The arguments advanced to avoid this rather straightforward application of Crawford are rejected.”

Justice Scalia, writing for the majority of the Supreme Court, noted that the “certificates” in the Massachusetts trial were really “affidavits,” condemned in the earlier Crawford decision. Justice Scalia said of the certificates, “They are incontrovertibly a ‘solemn declaration or affirmation made for the purpose of establishing or proving some fact.’” “The ‘certificates’ are functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’”

The Court noted that the cases involving such “affidavits” had arisen in the last 30 years, since the Court’s 1980 decision in Ohio v. Roberts.  The Roberts case had some language to the effect that unconfronted testimony was admissible so long as it bore “indicia of reliability,” and a number of state supreme court decisions had ruled that such affidavits or certificates did not violation the Confrontation Clause.

The Court noted precedents upholding the Confrontation Clause.  It cited Kirby v. United States decided in 1899.  In that case the defendant had been convicted at trial of receiving stolen property, some of the trial evidence of which was records of convictions of three other persons who were found guilty of stealing the property.

The dissent argued that an honest analyst to forensic tests will not alter his testimony when confronted by the defendant, i.e., just because he has to come to court.  “…The same cannot be said of a fraudulent analysis,” Justice Scalia wrote, noting cases where no analysis was done.   “Like the eyewitness who has fabricated his account to the police, analyst who provides false results may, under oath in open court, reconsider his false testimony.”  And, “like expert witnesses generally, an analyst’s lack or proper training or deficiency in judgment may be disclosed in cross-examination.”


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.


Winning the War on Drugs by Quitting

June 22, 2009

The United States has been waging a “war on drugs” for some time.  We even had a cabinet-level “Drug Czar”, who reported directly to the President of the United States.  Reminiscent of the Viet-Nam war, the more we had to win, the less we seemed to win.

The “Drug Czar” has disappeared.  Much of the Republic of Mexico is consumed by open gun fights, kidnaping  and blatant police corruption.   Now the American border states, especially in Arizona, have experienced a spike in kidnaping. All this from the drug trade.

What drives the drug trade?  American consumers, of course.  It’s the American drug user who pays for much of the drugs world-wide, from Afghanistan to Thailand to Columbia, but especially in North and South America.  No matter what our law enforcement seems to do, that demand continues to drive the growing supply.

From time to time, people voice the idea that it’s time to declare victory in the “War on Drugs” and go home – just like in Viet-Nam.  Their point is, there is no “winning” this war, so we should admit the undeniable facts and get on with our lives.

The Law Enforcement Against Prohibition (“LEAP”) is the latest group to call out for this solution.  LEAP claims to have 13,000 members according to Jack Cole, executive director of the national association.  He served in law enforcement as an undercover narcotics officer for 14 years in New Jersey. The group claims 102 members in Oklahoma, including 11 members who have law enforcement experience.  They just put up a billboard on the Broadway Extension in north Oklahoma City that reads, “Drug Abuse is Bad.  The Drug War is Worse.”

LEAP makes the argument so often made comparing the “War on Drugs” with prohibition of alcohol in the 1930’s.  Prohibition spawned the rise of gangsters as the alcohol-seeking public paid for illegal alcohol.  Similarly, LEAP argues that all the crime associated with drugs, most notably all the violence, comes from the illegal character of drugs.  If the drugs were legalized, the market would evaporate overnight, the profit would disappear, and there would be no need for any violence.  Moreover, by legalizing drugs, the use of drugs and drug users could be better regulated and monitored that it can now, when everything is simply illegal.  The idea is that the government could control the quantity, quality, production, price and distribution of all drugs.

The argument is a good one, but the American public is just too afraid to accept drugs, too afraid to accede to addiction-causing drugs, notwithstanding the acceptance of addiction-causing alcohol.  It just seems too big a “leap.”

No surprise that law enforcement types decry LEAP and its arguments. Mark Woodward, spokesman for the Oklahoma Bureau of Narcotics and Dangerous Drugs said legalizing and regulating drugs would cause more problems than it would solve.  “It’s frightening and reckless that a group of law enforcement officers would endorse something like that….Look at what happened when we legalized alcohol and prescription drugs.   Now they’re the two most abused substances globally,” Woodward said.

President Obama has called for $14.1 billion to support the “War on Drugs” for the year 2009, according to the Office of National Drug Control Policy.  There is no let-up in sight.  The war goes on, just like Viet-Nam.  We could never win, but we just could not make ourselves face the fact that we were not winning and – apparently – never could win.


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.