CNN’s In Session is covering Ohio v. Daniel Kovarbasich. The 16-year-old was tried for first-degree murder as an adult. His defense was that the victim of the crime was a pedophile who had abused him for many, many years.

When will the justice system realize that there is no justice in trying even the most perverse juvenile as an adult, when all that is needed is either to incarcerate the juvenile in a juvenile detention center until he reaches 18 and then try him as an adult (which he is); or to recognize that juvenile murderers are mentally ill, incapable of making decisions of any kind, and instead of trying them, treating them in a mental-health facility?

In the Kovarbasich case, apparently the murder victim had exercised total control over the juveniles’ sexuality for years.

What’s wrong with this picture? Let me count the ways—again.

Prosecutors are elected officials who all-too-often, like pedophiles, do cruel things in order to retain their power. Prosecutors often over-charge crimes in order to make headlines, which they believe will reelect them for another term or will jump start their campaigns for higher office.

Prosecutors are given the power of life and death over juvenile offenders to charge them as adults or (if state law requires juveniles to be tried as adults for violent crimes) charging the juvenile offender with crimes that necessarily place them in adult-categories.

Judges are appointed and elected officials who all-too-often, like pedophiles, make cruel decisions in order to retain their power. If a judge believes the electorate will turn on him in a coming election if he “lets a killer off too easily,” he will err on the side of caution—not caution about punishing an essentially innocent person but caution in the name of “law and order.” Once appointed to a circuit court position, they need only be “retained” by the voters. Most voters either vote a straight party ticket, when it includes a long list of candidates such as judges, or they skip the judicial ballot all together. As a consequence, judges are often very old. One wonders if they fully comprehend what they’re hearing in the courtroom.

The judicial system is not the only power-mad branch of government, either. The executive branch is primarily appointed by elected officials who want nothing but to be reelected to office for life. Every mayor, governor, and president appoints an army of bureaucrats (most of whom are not even subjected to hearings or scrutiny of any kind). This is true at every level: city, county, state, and federal.

The legislative branch is primarily the hired staff of elected officials who want nothing but to be reelected to office for life. For example, all legislation in Congress is written entirely by the paid staffers of the Senators and Congressmen. The Senators and Congressmen rarely even read what their staffers write. This is true at both state and federal levels.

Who’s fault is this mess? Ours.

We need to stop the idiocy of electing prosecutors. Yes, I realize that means that corrupt, venial, elected officials will hire them instead, but at least these hired guns can be fired if public scrutiny demands it. And the thing a corrupt, venial, elected official fears the most is being blamed for something that someone he hired did.

We need to hold elections for judges at different times from the general election so voters can properly vet the candidates for judgeships and scrutinize the long list of names on the ballot. Judges should be required to have graduate degrees in judging, judgment, and all things judicial. We also badly need judicial term limits.

In fact, we need terms limits for every elected office in this country, from the city council to the President of the United States (and be very, very worried if any President suggests, as Bill Clinton did, that he would like to repeal the 22nd Amendment).

This is not a new situation. There is truly nothing new under the sun. Once in power, I’m convinced, a chemical is released in the brain of politicians, a chemical stronger than dopamine or serotonin, less resistible than an aphrodisiac. They can’t help themselves. They want more and more and more—power.

Know the candidates and vote against incumbents whenever you spot a decent alternative.

Elyria, Ohio, do something about your problem! Vote prosecutor Mike Kinlin or his boss out of office. Vote not to retain Judge James Burge. Every time you hear about the victim of a pedophile turning to crime and you do nothing, you hammer another nail into the coffin of pedophile victims everywhere.

        

CNN’s In Session is reprising a first-degree murder case in which the adult daughter of abusive parents abetted her adult brother’s murder of their mother. The salacious “episode” is titled “Mummified Mother Found Buried Under Rock Garden,” and the CNN commentators describe the “show” as a “Front Row Seat to Justice.” But a murder trial isn’t something a sane person wants a “front-row” seat to (since the front row includes the defendant’s chair), and in this case there is no justice involved.

Florida v Stacey Kananen could be a poster child for the ill-conceived Senate Bill 714 about which I wrote recently. S.714 allegedly seeks to publicize the following serious problems in the American justice system:

• the absurdity of the United States having the largest prison population in the world, of which the largest part are incarcerated on minor charges such as drug possession
• the role of DNA evidence in false convictions
• the fact that prison sentences are becoming more and more lengthy
• and the severity of punishments varies greatly from state to state

Stacey Kananen’s conviction adds one more relatively harmless person to the prison population; she was overcharged with first-degree murder for being an accessory to murder, thus causing her sentence to be out of all proportion to her crime; the only evidence against her was her brother’s confession and accusation, which was produced rather late in his own prosecution (why anyone would believe a confessed murderer about the complicity of anyone else, on his testimony alone, is beyond my understanding).

The law also needs to understand the role of childhood abuse in producing psychopaths and sociopaths. Society as a whole would be a much safer place if families could be rescued from the psychopaths and sociopaths who too often enslave and torture them. In the Kananen case the only serious psychopath or sociopath may have been the father, although it does seem as if the son is seriously damaged goods.

Sidebar: Nowhere in S.714 is there any mention of the absurd legal definition of insanity, which puts schizophrenics in prison because they claim that a voice told them to kill the evil ones (thus proving they know right from wrong. How else could they identify the evil ones?).

No, I don’t know how to rescue such families without permitting the government to intrude in every family’s privacy. The “human services” in government as often overlook abuse as they intervene to good effect. I’ve been told that fads in social work often return abuse victims to their abusers’ care with little more than a promise “to be good.”

Florida’s laws, in particular, strike me as bizarre. In Florida (until the Supremes “corrected” the state) laws put a minor in jail for life essentially for a parole violation. In Florida a mother who neglected and then apparently abused her child until she died (Casey Anthony) can be put on trial for capital murder, while a woman in Illinois who cut the baby out of another woman’s womb (and murdered her) because it was her boyfriend’s child is simply sent to prison. In Florida, witnesses in trials involving family members are subjected to public scrutiny and ridicule on CNN, with their tearful words hyphenated by commercials about a TV series on jerks jumping off roofs into basketball hoops.

Overzealous Prosecutors

Most states seem to have a plethora of overzealous prosecutors who grandstand in the courtroom in order to be reelected. I can’t explain Stacey Kenanen’s prosecution for first-degree murder as anything but that. (This, it seems to me, a non-lawyer, is the best argument against allowing cameras inside courts.)

Stacey Kananen’s brother admits to having suffocated his mother and then burying her body in his sister’s backyard. He claims she first tasered their mother (to subdue her, I guess, even though he weighed 400 pounds at the time), but he also admits to having been jealous and resentful of Stacey’s better treatment by their psychopathic, alcoholic father.

CNN’s Choices

Freaks and geeks have always been crowd-pleasers—in the Middle Ages it was bear-bating; in the 19th century it was the tattooed lady (before you get another tattoo take a look at some old photos of these women) and geeks who bit the heads off live chickens. Now that we’ve supposedly evolved into a more humane society, I would expect better.

It’s difficult to find anything that isn’t freakish in the entertainment media. Animated Avatars with blue skin and long necks (remember Cecil?) fall prey to the evil human creatures (in other words, us). Paris Hilton gets drunk and goes to jail. TruTV brings you Dumbest and In Session, which ignores all the really vital legal issues in this country in favor of bringing you the tragedies that occur in ordinary people’s bedrooms and backyards (and which ought to stay there. That’s what they mean when they say “Let sleeping dogs lie”).

 

        

The Innocence Project is asking everyone interested in real justice in this country to support a Senate bill to create a Congressional committee to study needed reforms (S.714). Please read the press release dated May 20 by clicking here.

I’m of two minds on this issue—or maybe many minds. On the one hand, S.714 quite correctly points out the need to publicize and study a number of serious problems in the U.S. justice system, including:

• the absurdity of the United States having the largest prison population in the world, most of whom are incarcerated on minor charges such as drug possession
• the role of DNA evidence in false convictions
• the fact that prison sentences are becoming more and more lengthy and that the severity of punishments varies greatly from state to state
• the role of Mexican drug gangs in the rising crime rates in several cities and states

The bill also notes that “blue ribbon panels” are not best-suited to study this issue. Experts on such panels are not legislators; they are not representatives of the people; they should be consulted and called to testify but not asked to decide what needs to be done. This, I think, is a rare bit of wisdom from the U.S. Senate.

Unfortunately, I don’t have a great deal of confidence either in our current clutch of elected representatives at the state or federal level, and I’m not sure the federal government is authorized to reform state legislation except through the Supreme Court.

And, too, there’s the problem that the Congress is already too busy making mischief and spending the future wealth of this country to take on an exhaustive study of any issue.

The Simple Solution—The Innocence Project Can Do It Themselves

An organization, such as the Innocent Project, has it within their power to solve this problem by selecting a number of convicts who are currently incarcerated as a result of the botched justice system and suing the states in which they are incarcerated. The Bill of Rights provides that failures in due process should be brought before the Supreme Court. The Supremes have the ability to declare most of the stupid practices of the state courts unconstitutional.

“Cruel and Unusual Punishments”

If lawyers in this country would screw their heads on straight and study the language of the Bill of Rights for what it is (18th century English), they would understand that a “cruel” punishment is one that is irreversible and an “unusual” punishment is one that is not uniformly applied to everyone convicted of the same crime.

Then they would sue the states for routinely executing people—an irreversible punishment.

They would also sue the states for sentencing some drug users to life imprisonment because of the “three strikes” laws while other drug users are sentenced to public service.

Grand Jury Indictments

If lawyers in this country would screw their heads on straight they would understand that the Bill of Rights explicitly prohibits state prosecutors from charging and trying people for murder without a grand-jury indictment.

Due Process

If lawyers in this country would screw their heads on straight they would sue the states for violating the due process clause every day when they try juveniles as adults (a clearly unconstitutional practice, which also goes against the entire history of common law and due process in Western civilization).

Mexican Drug Gangs

S.714 correctly seeks to publicize the growing problem of Mexican gangs in American crime. What I don’t understand, though, is why the U.S. Senate thinks it needs to study this at taxpayer expense. It’s obvious. Every voter knows about it. And a real and substantial majority of Americans also know that the cause is our open southern border.

“The historical and possible future role the military can play in crime prevention efforts at the federal, state and local levels”

S.714 apparently includes the rather creepy assertion that the military can play a role in crime prevention. I hope this phrase does not suggest that we need to look to Nazi Germany as a role model. I have great respect for the U.S. military, but I do not want the National Guard to repeat Nixon’s mistake at Kent State University. In case you weren’t born in 1970, students at Kent State University who were protesting the war in Vietnam were shot down by National Guardsmen.

        

Is it just me? I know I often see things from a weird, oblique direction, but every day the federal government does something new that stuns me. I couldn’t make this stuff up, and that’s what I do for a living—make stuff up, I mean.

First, the feds claim not to have read a new law in Arizona, but they’re nonetheless considering bringing a federal civil-rights suit against the state on behalf of people who have entered the country illegally through the southern border of Arizona. The law (and I have read it) requires police who legally stop, detain, or arrest a person on suspicion of a violation or crime to ask for identification that shows nationality. The feds’ opposition to this implies that they do not wish to deport illegal aliens, even when they have violated the law.

And now, once these people have been detained, the feds are going to make sure they are treated like guests in a resort, according to the Houston Chronicle. Commercial detention centers where these people are housed for about one month while their deportation is processed will soon be required to provide not only open doors and unmonitored phone calls (hmm, think Al Qaeda), but also superior cuisine, computer training, workout classes, twelve-hour sleep-overs for “friends,” and more.

I recognize that these detention centers are for illegals who have not violated any laws other than the laws prohibiting undocumented entry into this country. But frankly anyone who enters this country illegally is escaping from dismal circumstances, and I feel very sorry for them, but they probably aren’t addicted to workouts and salad bars and are unlikely to feel deprived if the feds fail to provide these amenities during detention. However, a terrorist who is unlucky enough to be caught entering the country illegally and who has not yet committed the dirty deeds he has in mind will be treated to a one-month near-resort-quality experience.

Not to mention that our homeless people would surely appreciate a month living in such circumstances.

Sidebar: No one ever seems to understand that most illegal aliens are only coming to this country because of a hellish existence elsewhere. And no one ever seems to want to acknowledge that thousands of these people are actually being “trafficked” into this country (which is a euphemism for women and children being sold to someone in this country).

No, American citizens in prison are treated worse by the feds than illegal aliens. Citizen prisoners in this country aren’t usually able to receive gifts of books to read (even though prison authorities can censor the books). You can’t send a Bible to a prisoner who needs to come to terms with his crime. You can’t send a book of poetry to a prisoner. Many prisons permit only donations to the prison library, and some of those libraries accept books only from publishers, not from individuals.

Yes, I understand that a prisoner is deprived of his Constitutional rights, but surely reading isn’t a Constitutional right: it’s a human right, and it’s in the best interests of society to have prisoners reading instead of sitting in the dark, rotting, going crazier than they are.

Why don’t American prisons teach illiterate prisoners to read and then invite those of us who are free to send them books? Wouldn’t it better to release convicts at the end of their sentences with at least basic literacy skill?

 

        

I don’t know how many people search the web for chess news. Most people think chess is boring. But I’m foolishly contemplating a plot for a chess mystery—knowing as I do that the audience will probably be miniscule.

Today I came across two chess news items that should interest everyone who reads this blog (assuming you read it because you’re interested in mysteries, crimes, and elusive justice).

One, a New York Times article, “Russian Knights Joust to Control Chess World” (which I will cover in detail later), reported that the Kremlin has invaded and taken over the Russian Chess Federation headquarters in Moscow.

The other chess news involves a former Bend, OR, Regional Manager of the Oregon Liquor Control Commission and second-best chess player in the Central Oregon Chess Club, a man now known only as John Doe.

Sidebar: The two stories linked to above and below are from TV stations. They seem to be raw notes of reporters, and you need to read them carefully to figure out what really has happened. What follows is my interpretation of these stories. I have no independent knowledge of the facts.

Who Is Rated Chess Player John Doe?

Last week, apparently, the State Department’s passport investigative branch arrested a man, who had been going by the name Jason Robert Evers, for lying on a passport application. Further research led (through “Operation Death Match”) to the discovery that the identity actually belonged to a 3-year-old Ohio child murdered in 1982.

John Doe refuses to identify himself for his own “safety,” according to his attorney. As a consequence of his failure to cooperate with the court, Doe has also been charged with a cascade of crimes from identity theft to driving without a valid license. There is absolutely no link between him and the murdered child, since he has been observed to be between 32 and 40 years old (he won’t give his age), so he would have been between 4 and 12 when the murder occurred.

What most intrigues me about this case is provided in a comment to the KOHD article, dated yesterday (May 26, 2010). The anonymous commenter says: “I think he is Johnny Gosch.” (WARNING: This link leads to the Johnny Gosch Foundation. It displays some incredibly shocking and disturbing photos, so please do not visit the site unless you are prepared for what’s coming. I recommend instead that you look at America’s Most Wanted story on Johnny Gosch. But I’m linking to the Johnny Gosch Foundation, because it seems to be the work of his family.)

Johnny Gosch was a 12-year-old following his newspaper route one Sunday in 1982 (as in the Evers case), who was abducted by a pedophile ring. His family was sent graphic, terrifying photos of him bound, gagged, and abused. There can be no question that he was the victim of vicious pedophiles.

John Doe apparently adopted the name Jason Evers in 1996. In 1997 Noreen Gosch, Johnny’s mother, received a visit from a young man claiming to be her son and whom she believes was her son. At that time he said that he was engaged in criminal activity and could not safely reveal himself.

John Doe has been in the Northwest since about 2002, leading an exemplary life. In fact, he was such a harsh regulator of liquor licenses that retailers complained about him, and he had to be reassigned from Bend to Portland and then Ontario, OR, a few years ago. He is well-respected by the chess community, is engaged, and has many friends and supporters (according to KTVZ).

It’s a disturbing story, no matter who John Doe, chess player, turns out to be. Once again it reminds us of the harsh reality of child pornography and sex trafficking. In every story about these commercial gangs who exploit children, there are always references to politically well-placed players, for example, the Marc Dutroux Belgian pedophile scandal.

Let’s face it: this crime is obviously widespread but even a dedicated task force of the FBI has been unable to bring these rings to justice. They caught Al Capone eventually by getting him for tax fraud. There’s bound to be a ton of money involved in these crimes, too. As Deep Throat said, “Follow the money.”

Every time I read about another such horror story, I have to recall the conspiracy theorists who commented on this blog with allegations of a pedophile ring’s involvement in Columbine and the persistent rumors of pedophile involvement in the murder of JonBenet Ramsey.

Can we really dismiss all of these theories as loony?

        

In George Orwell’s 1984, the hero, Winston Smith works for the government’s Records Department. His job is to edit, redact, and rewrite news articles and then destroy the last remaining copy of the original. The contemporary equivalent of the Records Department, apparently, is the Justice Department’s Bureau of Justice Statistics.

Until a few months ago, any citizen could access the latest, complete collection of data on the courts and prison systems in this country via the Web. Now, suddenly, the Bureau of Justice Statistics provides public access only to summaries of data, without any of the backup datasets. This means you and I cannot verify the accuracy of the BJI summaries or analyze the data for our own purposes, which may not coincide with the government’s all the time.

For example, I was trying to determine how many people charged with murder actually go through a murder trial, as opposed to “copping a plea” or opting for a bench trial. I can’t do that now, because the data simply aren’t there.

A couple of months ago, I discovered that the raw data are no longer housed at the BJI. When I finally tracked down the repository, it appeared to be an organization of universities, which claimed to provide complete information to “member institutions.”

But I can’t prove this now, because things seem to have changed again. Now the data are supposedly available through The Federal Justice Statics Resource Center. (BTW: This is described as a “project,” not an agency or bureau.) But I still can’t seem to access the datasets. Instead, something called the Urban Institute seems to have them. When I tried to download data from the “Data Archive” I received the following message:

“These data are to be used for research and statistical purposes only. Use of the data for any purpose other than research or statistical purpose may constitute a violation of section 812(a) of the Omnibus Crime Control and Safe Streets Act of 1968, section 1407(d) of the Victims of Crime Act of 1984, or Part 22 of section 28 Code of Federal Regulations and may be subject to Federal prosecution and a fine of up to $10,000.”

What possible use could data be put to that would be criminal? Data=facts, right? To me it sounds as if I were to use the data to support my opinions about the justice system, I might be committing a crime.

        

The Network on Transitions to Adulthood has issued a report (sponsored by the MacArthur Foundation) that sends chills down my spine and ought to make your spine at least tingle, too:

“Transition to adulthood delayed, marriage and family postponed, study finds”

Young Americans are postponing all the major adult milestones until after the age of thirty.

The study shows that the vast majority of Americans born in 1980 and after are delaying leaving their parents’ homes, delaying careers, delaying marriage and parenthood, delaying life.

For many years I’ve thought the way we treat high school and college students is a terrible mistake. At the same time they’re becoming sexually active earlier and “experimenting” with drugs, alcohol, and tobacco, we prohibit them from getting meaningful part-time jobs (through child-welfare and child labor laws, raising the minimum wage, and putting illegal immigrants into low-paying job that teenagers could do just as well, the so-called “jobs that Americans don’t want,” or so George Bush claimed, like working at McDonalds and mowing lawns).

The study also points to the sky-rocketing percentage of minority women who are single moms by the age of 25 (and most of them live with their parents, too).

Right now, roughly 14% of the population falls in the age group from 20-30. Another 28% are under 20, That’s 42% of the population—and we can expect all these youths to be similarly dependent on their elders. 

In other words, right now 42% of Americans cannot fend for themselves. They don’t have the experience to formulate meaningful opinions about important social issues (although they have the vote from age 18). Yet they are extremely vocal about politics. This is nothing new, of course. Back in the day, my generation used to say, “Don’t trust anyone over 30.”

The difference between then and now is that my generation was decently educated. We could read and do basic math. Now in many states only about 50% of young people graduate from high school. In some cities (such as Chicago) even in states where the graduation rate approaches 90% the city’s rate is 50%. Now I think my generation should say, “Don’t trust anyone under 30.”

These figures represent millions of young adults who have no hope. I can think of no solution to this problem, short of radically overhauling the public education system immediately. High school students have to be incented to stay in school, so that means we need to get them good, part-time jobs. We have to do this. Now. Unfortunately we all know that’s not going to happen.

Sidebar: Chicago’s teens are among the most oppressed by the current situation. On the South Side (blacks) there are not only no jobs for teens, there are no jobs for adults either. Despite this, the City Council refuses to permit Walmart to build stores in Chicago to serve this neighborhood—to serve them not only low-priced consumer goods, but also jobs.

Wondering why we have a gang problem in this country?

It’s beginning to sound to me as if the American Dream is dead.

Sidebar: In case you’re 30 or under and don’t know what the American Dream is, please read this Wikipedia article on the topic. My definition is “the every person can prosper through her own hard work and obtain what is most important to her, such as property (a home, an acre of woods), and spend her productive time engaged in meaningful, life-enhancing activity."

        

I write this blog article with confidence that it will prevent me from ever again being called up for jury duty or serving on a jury. (Judges have the power to strike a name from the rolls.)

Today the Chicago Tribune reports that Chicago judges routinely violate an IL law that prohibits any speeder from receiving more than two “court supervisions” in a year: “Thousands of times a year, judges in the Chicago area sentence speeders to extra, illegal supervisions. The newspaper's analysis showed that in the six-county metro area, the law is ignored about 11 times each day court. . . .” And this includes chronic speeders who kill people with their cars.

Sidebar: In case you don’t know what a “supervision” is in traffic court, it’s nothing. The judge makes you pay the ticket, forces you to watch a video, and then waves bye-bye.

Monday the U. S. Supreme Court overturned a life-without-parole sentence for a Florida juvenile (Graham v Florida) who had committed non-homicide offenses for which an adult could have been sentenced to as little as 5 years, at the circuit-court judge’s discretion. That’s right; if he had been 21 and the judge liked the way he looked, the judge could have sentenced to him five years.

Clearly, Florida legislators are crafting sentencing guidelines that are far, far too broad; this puts too much discretion into the hands of judges.

In the trial in which I was a juror, the judge literally rewrote the IL kidnapping statute in the jury instructions. Fortunately, several of us on the jury could read, and she didn’t write very well. The only check on judges who misstate the law to the jury, however, is the lengthy, costly appellate system.

The U. S. Constitution calls for an independent judiciary. Unfortunately, the Constitution also grants the Executive branch of government the power to appoint many judges (which necessarily makes them “dependent” on the evaluation of a political group). It also allows the States to establish their own means of creating a judiciary, and most States elect all judges except for their own appointed Supreme Court justices.

Elections mean the judges are party hacks. The political parties put only the judges in their pockets onto the ballots. No judge who lacks a party affiliation will ever appear on a ballot, at least not in Cook County.

Sidebar: I don’t see any harm in the President nominating Justices for the Supreme Court and the Senate confirming them. Throughout history, the Justices have exhibited political independence once on the Court and have often surprised the Presidents who chose them.

Hire Judges

In Cook County each primary and election ballot includes dozens of judicial candidates. Despite local bar association ratings, most voters have no clue about these names. Such an election is nothing but a farce.

• Cook County Bar Association: http://www.thecookcountybar.org/pdf/CCBA2010PrimaryElectionRatings.pdf 
• Chicago Bar Association: http://www.chicagobar.org/AM/Template.cfm 

Most communities hire the Chief of Police, police officers, medical examiners, corporate attorneys, and other legal professionals. We ought to start hiring judges and prosecutors, too. That way, when the community’s political leaders change, its professional prosecutors and judges can change, too. The hiring process should rely on credentials so that when community leaders hire incompetent, political hacks, they can be fired or, if not, the leaders will soon be out of a job, too.

        

Yesterday, the first story I read about the monumental U. S. Supreme Court decision (Graham v. Florida) claimed the decision was 5-4, with Justice Kennedy writing the court’s decision and Justice Thomas writing the dissenting opinion. Without reading further, I assumed this represented the usual liberal-conservative split.

Today, articles correctly called the decision 6-3, but I doubt you’ll hear any intelligent coverage of the decision beyond this. The 6 concurring were actually 3 separate opinions and the 3 dissenting were actually 2 separate opinions for a total of 5 separate opinions, not 2 (pro and con). I recommend you read the complete decision and dissenting opinions in Graham v Florida, because the case strikes at the heart of the Bill of Rights and of the entire concept of common-law juvenile justice.

On Monday, the Supreme Court also issued a monumental decision in United States v. Comstock et al. in which recent Justice nominee Elena Kagan, Solicitor General, had argued for the federal government that not only the mentally ill but also the “sexually dangerous” can be held indefinitely to protect the public. (FYI: This was the first I’ve heard that the federal government can indefinitely suspend habeas corpus rights of the mentally ill.) The Comstock decision was 7-2, comprising 2 concurring opinions and 1 dissenting opinion.

Simple math tells you that something is going on here other than all the usual suspects voting for “strict constructionism” against the majority liberal interpretation of the Constitution as “a living document.” In fact, conservative Chief Justice Roberts joined the liberal majority in both these decisions, and only Thomas and Scalia dissented in both these decisions.

The media are doing the cause of justice in this country a very, very great disservice by failing to read Supreme Court decisions carefully before they report superficially on them.

Both the decisions are written in English. Both are filled with rich detail on the issues involved. Please read them.

Of great interest to this non-lawyer, non-judicial, former juror is that both of these decisions impact the judiciary and prosecution—not the jury system. The Graham decision prevents judges from permanently depriving juveniles of their liberty and the Comstock decision permits federal prosecutors and judges to permanently deprive sex offenders of their liberty.

Here’s my concern: As long as a convict has a valid birth certificate and can prove he or she is a juvenile, the convict’s rights are protected, but as long as the federal government can find a psychologist to declare a convict to be “sexually dangerous,” the convict is screwed (of course, maybe that’s appropriate).

        

I’m a fiction writer. I prefer fiction to reality. The trial currently being scrutinized on CNN’s In Session is so surreal it has inspired me to write a vignette set in a dystopic future when medical care is not only mandatory for everyone at any age but the law establishes the appropriate treatment for various physical conditions. In honor of the Beagley trial, I’m titling the vignette:

“Hindsight Is 2020”

In the year 2020 Natasha Beasley was fifty-two years old, and the proud grandmother of three-year-old Keesha. Because Keesha’s single mom had to work long hours, Natasha provided day care for her. So, when one day little Keesha complained to her about a bad sore throat, she called her own doctor and made an appointment to bring Keesha into his clinic, where a pediatrician could take a look at her.

Dr. Ganesh examined Keesha that very afternoon. When he was finished, he led the grandmother out of the examination room where Keesha still sat on the table. “Ms. Beasely,” the doctor said, “from what I can see there’s nothing to worry about. Keesha has tonsillitis.”

“Oh, that’s a relief,” said Natasha. “I had tonsillitis as a kid, too. It’s pretty common, isn’t it?”

“Yes, it is, and I’m glad to tell you that since you had tonsillitis we’ve learned a great deal about it.”

“I know. I had a tonsillectomy. And after that they figured out that tonsils are supposed to get infected. It’s part of the natural process. It helps a child’s immune system develop,” said Natasha.

The doctor laughed. “I’m sure that’s what they thought a few years ago. But we know better now. In fact, the most-recent regulations are that tonsils should be removed at birth. Little Keesha’s overdue.”

Natasha thought about that a moment. “Does that mean I have to put her in the hospital right away and have them take her tonsils out?”

“No, you won’t have to do that. The Department of Child Protective Services has just taken custody of her. They’ll take her to the hospital. When you go back out in the waiting room, the sheriff will cuff you.”

“Why?” She was floored.

“You and your daughter violated the mandatory tonsillectomy regulation of 2019,” said the doctor.

“But Keesha was born in 2017. How could we have violated a regulation that didn’t even exist?”

“Isn’t it obvious? It’s retroactive,” he said. “Unless a regulation is retroactive, it’s worthless. Millions of children born too early would slip through the cracks otherwise.”

Finis

        

According to WebMD’s Medscape, in Oregon a pregnant teen of any age can obtain an abortion (medical treatment) without informing her parents. Nonetheless, a dying teenage boy (age 16) is not permitted to consent to or decline medical treatment. If he does decline, then his parents are sent to prison for negligent homicide.

This is insanity. Either a teenager (who must be covered by his or her parent’s medical insurance) has a right to self-determination with regard to his or her body or not.

What if a teenage girl in Oregon is pregnant, but carrying the fetus to term will threaten her health or even kill her? Can her parents force her to have an abortion? What if abortion is against her religion or she and her parents refuse to give her one? Will her parents be charged with negligent homicide if she dies?

I’m not advocating anti-science, anti-medicine religions. I’m not advocating one opinion or the other in the debate over parental consent to abortions. I’m simply advocating self-consistency, logic, the Kantian categorical imperative.

You can’t have it both ways and be in the right both ways.

        

Over the weekend, President Obama spoke at the commencement at Hampton University. In his address, the President stressed the power of education and chastised the media for trivializing information:

And meanwhile, you’re coming of age in a 24/7 media environment that bombards us with all kinds of content and exposes us to all kinds of arguments, some of which don’t always rank that high on the truth meter.  And with iPods and iPads; and Xboxes and PlayStations -- none of which I know how to work -- (laughter) -- information becomes a distraction, a diversion, a form of entertainment, rather than a tool of empowerment, rather than the means of emancipation.

While I don’t think that electronic devices are inherently non-informative, I do think that many commercial firms exploit information and pervert its true import. Since the demise of Court TV, unfortunately, CNN’s TruTV (its successor) has turned into a purely exploitative cable channel.

Today its In Session begins “coverage” of another trial that should never have occurred, Oregon v Jeff and Marci Beagley. In Session anchors will undoubtedly raise their voices in outrage and rail against the parents who let their 16-year-old son decide whether or not he wanted to see a doctor in his illness.

For many years, states have required parents to provide adequate medical care for their children. Most cases like the Beagleys’ are handled in family court (where there are no juries) as negligence. A typical situation might be, for example, that a public-health official would have the family summoned before a judge, who would hear testimony of physicians about the child’s condition and chances of recovery with and without medical care. Then the judge would issue an order that the child must be placed in the care of a physician. If the parents refuse to comply, they’re found to be in contempt of court and jailed, and the child is then put in the temporary custody of health-care officials.

By the age of 16, though, a child has reached the “age of reason” (usually the legal age is somewhere between 5 and 11). In some states a 16-year-old is at the age of consent for sexual activity. In some states a child of 14 must consent to his own medical treatment. Sixteen-year-olds are routinely tried as adults.

Oregon’s Death with Dignity Law

There’s a very great irony that the Beagley case was tied in Oregon, where the state permits people to commit suicide under the care of a physician.

So, let’s try to puzzle out what “The State” must believe Jeff and Marci Beagley did wrong:

Well, obviously the crime was not calling a doctor when their near-adult son developed a “urinary tract blockage.” I have no idea what that condition was specifically, but it sounds a bit like kidney stones. So, this must mean that if you have a kidney stone and decide to try to pass it without a doctor’s intervention, you are committing a crime in Oregon.

Worse yet, the parents made the mistake of asking their near-adult son if he wanted to see a doctor. They should have left him alone in the bathroom, I guess, to deal with the problem as he wished.

If the parents did not know their son was ill, they would also be innocent, I suppose. And if the parents were not members of a church that holds as a principal tenet that all ailments must be left up to God, their ignorance of his illness would have been simply stupid, not homicidal.

Ad Absurdum

Clearly what the Beagleys ought to have done, given the Death with Dignity Law, was to call a physician, tell him their son was terminally ill, and ask him to sit by the bedside stroking his hand comfortingly and with dignity while he died.

Sidebar to In Session: Please stick with live coverage of real murder trials, or send reporters to cover the Supreme Court, or send reporters to Chicago to cover all the shenanigans going on here.  Enough already of family tragedies.

        

Amendment V of the U.S. Constitution

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The Fifth Amendment of the Bill of Rights is the basis of our criminal justice system. The Sixth Amendment is the basis of our jury system: "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 . . . .” Yet today the states have all enacted laws that directly contravene both of these Amendments, and the U. S. Supreme Court has upheld many of these laws.

Few states require a grand jury indictment for murder. Every state permits a defendant to be tried more than once for murder if the trial ends in a hung jury (proof the prosecution did not prove its case). No state compels defendants to testify, but all states permit the prosecution to prevent defendants from testifying by charging them with multiple, unrelated crimes about which they would be compelled to testify if the charges were not brought. Defendants are routinely deprived of property that’s used as evidence in a case, and many states deprive convicts of access even to their own DNA for purposes of exoneration. Speedy trials are impossible in the over-crowded, under-funded court systems. Sensationalized, media coverage makes impartial juries impossible. And nation-wide, mass-media coverage often makes it impossible to conduct trials in the district where the crime occurred.

I know of one person who was “held to answer for a capital, or otherwise infamous crime” without a “presentment or indictment of a Grand Jury” when it was not a “Time of War,” was “twice put in jeopardy of life or limb,” was “compelled” NOT to testify because of another, pending indictment, and was deprived of “property, without due process of law.” In addition, it took several years to convict her. Local media labeled her a “Black Widow.” After the charges were filed, the state went back more than 20 years to the tragic death of her first husband and trumped up a second murder charge against her.

Look at Casey Anthony, if you need another example.

Jury Reform Is Long Overdue

Visit www.constitution.org for an excellent survey of jury-reform ideas. Recently the English have been considering serious jury reform, although their system already avoids some of the problems of ours: the unprofessional nature of juries (no preparation, laughable pay), one-trial jurors, need for unanimous verdicts, and wasting time and money by keeping a large jury pool locked in the courthouse for an extended period of time despite never being called up for a trial.

Many people have called for “professional juries” and proposed reasonable schemes for achieving this. For example, given the high unemployment rate now, it would make good sense to draw jurors from the lines at the Unemployment Compensation offices, and given the growing population of retirees to draw them from the Social Security rolls.  These people could be called up for extended periods, could serve on more than one trial, could be adequately compensated and thoroughly trained.

The issue of training is problematic, though, since the courts (as www.constitution.org explains) are bound and determined these days to violate the Bill of Rights by telling jurors completely erroneous things about what they are entitled to know and to do.

So What Else Is New?

Systems, just like living organisms, inevitably become more and more complex until they succumb to entropy. Soon decay sets in.

The Constitution, though, is NOT A SYSTEM. It’s a beautiful expression of some fundamental social principles. Jury reform DOES NOT REQUIRE a new law or amendment. All we need in order for jury reform to occur is for the U. S. Supreme Court to reread the Bill of Rights and overturn these illogical, unfair state laws:

• The State should not be able to prosecute a murder (of any degree other than manslaughter) without a grand jury indictment.
• A hung jury should be accepted as a not-guilty verdict to prevent double jeopardy, or more than a true majority (2/3) should be sufficient for any verdict except in a death-penalty case.
• The State should not be allowed to hold charges over anyone’s head for longer than a year or 18 months at the most. No one can sustain the costs entailed in a lengthy defense, especially since a defendant’s livelihood is inevitably impacted by prosecution.
• Defendants should be permitted to testify without reference to prior convictions or pending charges.
• The State should not be allowed to keep evidence (private property) away from a convict.
• The State should not provide information to the media for any purpose (Freedom of Information Act or not).
• If a media outlet chooses to cover a trial, it should be prohibited from commercializing the coverage (such as CNN’s TruTV trial coverage, which is interspersed with commercials for their own programs, such as ones featuring the idiotic behavior of drunks and fools jumping into basketball hoops).
• Change-of-venue requests should be automatically granted.
• An impartial jury need not be an ignorant jury; it must, though, be a jury of people who have no stake in the outcome of the trial and who have no relationship with the defense, prosecution, judge, police, or victims. If we followed the English example of forming juries for the purpose of serving on more than one trial, they would more likely be impartial.
• Jurors should be voluntary, adequately compensated, and trained using materials designed by and paid for by the federal court system so that the materials correctly reflect the Supreme Court’s understanding of due process of law, not each trial judge’s personal opinions.

        

Deliberations is an interesting jury consultant blog that has commented recently on hung juries and how to prevent them. But why? What’s wrong with a hung jury? (Other than that tort lawyers who work for a percentage of the take earn nothing, that is, and, I suppose, the jury consultants on both sides are discredited.)

The more I think about chess as an analogy for jury trials, the more I’m becoming convinced that a hung jury is the optimum outcome of a trial, whether it’s in the criminal or civil court.

In chess, as evidenced by the current World Championship match between V. Anand and V. Topalov in Sofia, Bulgaria, the best games are those that end in a draw. In chess a draw indicates the players were evenly matched and neither one blundered themselves into either a disastrous loss or a self-defeating stalemate.

In a courtroom trial, if both sides were equally strong (as in a chess championship match), the jury would be unable to decide between the two. Of course, a long-standing principle of law is that in a criminal trial the defense is presumed to be in the right until the prosecution proves otherwise.

Unlike chess, the two sides are never equal in the beginning. And that’s the fundamental weakness in the American jury system, a weakness that’s bound to bring the whole system to a screeching halt very soon. Face it, we have a prison population that’s about 1% of the total population of this country (infants and children included). Our courts are so over-crowded that in some states convicts wait more than five years for their appeal to be heard or decided. Criminal trials rarely take place within a year of the crime (are rarely “speedy,” in other words).

What Is a Hung Jury?

A hung jury is more than merely a jury that can’t agree on a verdict. It’s a jury that has heard all the arguments and evidence, has had the judge admonish them at least once to try to reach a verdict, and has deliberated (probably intensely). After all that effort, at least one juror is unconvinced of the prosecution’s or plaintiff’s case.

What’s wrong with this? Nothing—other than the costs to the taxpayers of the justice system. The taxpayers have a right to say that a hung jury indicates something went wrong somewhere because otherwise the jury would have reached a verdict.

Consider the situation in which a murder trial ends in a hung jury (usually with only one or two holdouts). The judge and prosecution tend to consider this to be a failure of the jury and perhaps of the entire jury system. The defense considers this to be a minor victory; if it so chooses, it has survived to try again. But it also means a huge amount of public money has been spent to bring a murderer to justice and still hasn’t managed to do it. If the defendant is held over to the next trial in jail and is innocent, his rights have been violated. If he’s guilty and out on bail, he’s liable to skip town.

American citizens ought to consider such a hung jury to be a victory for justice but a failure of the justice system. What failed was the police investigators to find sufficient evidence, the prosecution to formulate appropriate charges, and the judge to ensure that everything was clear to the jury. The only times a jury should find a not-guilty verdict or hang is when the defendant is completely innocent or there’s insufficient proof of guilt.

To be continued . . .

        

That’s what CNN’s voice-over announced today in its broadcast of the verdict and sentencing of the Michigan couple charged with child abuse, torture, and murder of their special needs child. And that’s exactly what’s wrong with the criminal justice system: it’s always left to a jury of conscientious citizens to decide what to do when something horrible happens to children. No one in the massive state bureaucracy ever has to clean up the mess. No wonder no one wants to be a juror.

In Session needlessly sensationalized the Springer family tragedy as if it was a case of Cinderella tormented by an evil stepmother and wicked stepsisters. They called it “the Cinderella syndrome.” But by no stretch of this mystery writer’s imagination was any of the characters in this story a Cinderella.

Sadly, the victim was no Cinderella. She wasn’t the golden-haired, perfect daughter of a loving father, whom the stepmother and stepsisters envied. Callista Springer had numerous mental disorders that no one—not even the kindest, wisest psychologist on Earth—could have cured. It should have surprised no one that her parents weren’t capable of treating her well while protecting their other children from her influence and disruption of their lives.

Sidebar: It also came out during sentencing that the so-called evil stepmother was also being abused behind the closed door of the old house that burned down. Oops. Maybe CNN shouldn’t have called Mrs. Springer the evil one; after all, they had the benefit of hindsight, because the verdict and sentence were already decided when they began their broadcast two weeks ago.

Before CNN’s cameras went into that Michigan courtroom, the justice system ought to have made sure this case never went before a jury. The prosecutor was wrong to prosecute this as anything but a case of child abuse and manslaughter. Had the prosecutor not insisted on murder and torture charges, the defendants would likely have pled guilty or at least have waived their right to a jury trial. Surely they would not have asked their surviving daughter to testify in public.

Jury trials are all about the community’s response to a crime. Jurors represent the community. Jury trials, unfortunately, are also all about publicity. Prosecutors and judges (who have to be elected and reelected) need the media to keep their jobs.

In this case, the community and the state’s justice system were as much at fault as the parents. The state’s child welfare agency failed the victim; her extended family failed the victim; the school system failed the victim. The doctors who treated her failed her, too.

It shouldn’t have been “up to the jury.”

        

Yesterday the U. S. Supreme Court decided 8 to 1 to uphold freedom of speech and overturn a federal statute (18 U.S.C. Section 48) that criminalized audio and video depictions of illegal acts of animal cruelty unless the depictions had “a serious religious, political, scientific, educational, journalistic, historical, or artistic value.” (Ironically, in light of the recent decision on Campaign Finance Reform restrictions of political speech and Justice Alioto’s famous headshake, Justice Alito was the sole dissenting opinion).

Yesterday was also the day on which the judge (Judge Stan Strickland) presiding over the highly publicized, sensationalized trial of Casey Anthony recused himself, because he read blogs and communicated with a blogger privately. Judge Strickland’s recusal order used the phrase “self-aggrandizing publicity hound” ironically. And, indeed, it is ironic, since the State of Florida has videotaped Ms. Anthony in private conversations with her parents and then “released” the videos to the press to be plastered all over cable TV, copied and published Ms. Anthony’s personal correspondence, and permitted cameras to broadcast from the courtroom every time Ms. Anthony’s attorneys file a motion, including a motion to have her declared indigent, in which she had to reveal in public how she had paid for her constitutionally guaranteed right to a defense.

Freedom to “Depict” Crimes

The Supremes got it right in U. S. v. Stevens (above). Justice Alioto protested that it should be legal to outlaw depictions of patently (“facially”) illegal acts when the depiction’s only purpose is the illegality. I understand his argument that freedom of speech can be taken to a logically absurd conclusion such that all illegal acts could be committed if they are committed on camera.

However, the federal law in question stupidly permitted depictions of illegal acts when they have a “value” other than satisfying a sexual fetish. Get real, feds: Speech is only “free” if its value is not regulated.

Consider this real scenario from history: A man broke the law repeatedly and was repeatedly imprisoned as a result. While in prison late in his life, he wrote a book promoting his illegal conduct and urging others to adopt his illegal ways. The government subsequently banned the book because of its illegality. No one could legally publish it, reprint it, or sell it.

The man was John Bunyan. The book was The Pilgrim’s Progress.

Freedom to Discuss Crimes

As kids we’re taught the jingle “Sticks and stones can break my bones, but words can never harm me.” Of course, the jingle is a way of saying we ought not to worry about the slurs that people throw at us. But in every other situation, we’re taught not only that slurs are “torts” for which we can demand monetary compensation but that some words we’re forbidden to utter.

Most people fear free speech. That never surprises me. I honestly can’t count the number of times people have asked me if I’m worried that I’ll give someone information in my mystery writing about how to commit a crime. My answer is always the same: No.

If someone is so dumb he has to turn to my fantasies in order to figure out how to commit a crime, he’s too dumb to get away with it. But I was rather surprised when recently someone asked me to help exonerate a convicted murderer.

Since then, I’ve been researching the issues involved in writing about a crime from a prisoner’s perspective and discovered that there are quite a few laws against freedom of speech when it involves crime. For example, I’ve learned that any communication I might have with anyone involved in a court action is subject to subpoena. If I write about a crime, I can be judged to be in contempt of court if I don’t turn over all my research to any judge who’s curious about it. I can be sued by just about anybody who’s even tangentially involved in the events I write about.

For example, last fall the Cook County States Attorney subpoenaed all the notes of Northwestern University journalism students who exonerated a convicted murderer.

And then, of course, there’s always the risk that writing about “suspect” topics will lead any writer to be scrutinized by federal security agencies.

Freedom of Speech in Prison

If John Bunyan were in prison in America today, The Pilgrim’s Progress would not be published or sold. Most states have so-called “Son of Sam” laws that prohibit prisoners from profiting from their crimes in any way, no matter how tangential. Effectively this makes it illegal for a prisoner to write a book and publish it.

If Casey Anthony had written those now notorious letters as a memoir for publication, they could not have been released to the public.

But arguably the world would be a worse place today if prisoners had always been prohibited from publishing. The list of significant literature written by prisoners is very long. For example, an Amazon list compiled by Robert Moore has 21 titles, some of which are collections of other works.

Off the top of my head, I can add to this list:

• Eldridge Cleaver’s Soul on Ice
• Alexander Solzhenitsyn’s The Gulag Archipelago
• Cavalier poets, such as Robert Lovelace (“stone walls do not a prison make”): In fact, in the 16th and 17th centuries virtually every English poet regardless of his politics or religion ended up in prison at least once. Shakespeare is the rare exception.

But now in America no prisoner can write a book, even if he or she maintains innocence and claims to have been wrongfully convicted. No one in prison can even write about what it’s like to be in prison (even though such a book might deter a few people from committing a crime). And few writers are safe in writing about a prisoner’s story either.

It seems to me—a non-lawyer—that freedom of speech is either absolute or not a freedom at all. The Supremes’ decision yesterday in U. S. v. Stevens is a tiny, baby step toward acknowledging that as a fact.

        

Witnesses’ faces should be obscured on camera, every time a trial is broadcast on commercial TV. Yesterday CNN’s In Session broadcast a young, former classmate of fire victim Calista Springer.

Enough. Please.

In Session’s current coverage of the trial of two parents for the murder of their child (Michigan v Springer) is all the evidence I need to claim that non-investigative, non-expert witnesses deserve privacy rights. Most such witnesses should not be forced to have their faces broadcast on cable TV.

The seemingly endless coverage of the Springer prosecution’s case has displayed far too-many private citizens’ faces: a grandmother of the victim, stepsisters, cousins, in-laws, grade-school teachers, and more. Since the defense has yet to present its case (or cases), all these witnesses have appeared for the prosecution, but were forced to do so on camera. All—no matter how closely related to the family or how estranged—have presented a very dismal picture of the parenting skills and characters of the defendants. Unfortunately, not all these witnesses have presented good pictures of themselves, either.

Sidebar: Because I respect these peoples’ rights, not only to privacy but to their own opinions, I won’t enumerate the biased opinions that some of these witnesses expressed on the witness stand or in TV interviews. However, I think the CNN commentators ought to point out that in a murder trial witnesses are understood to have biases—understood by the law, that is, although apparently not by TV commentators. When the judge finally instructs the Springer jury, he will undoubtedly tell them to make up their own minds about the truth of what the witnesses said. But it seems to me as if CNN’s anchors have accepted every prosecution witness at face value.

The Springer trial isn’t the only trial in which CNN broadcast children’s faces. Elaine Clermont’s daughter was shown on camera, even though she did not testify in her mother’s trial. In the trial of police officer Ron Killings, CNN broadcast the face of a very young child who was ultimately deemed unfit to testify. In every trial, CNN shows mothers of victims, children of defendants who plead for mercy for their parents—this is entirely unnecessary.

Several times I’ve been seduced into commenting in this blog on witnesses (sisters-in-law, step-daughters, brothers) who appeared to me to be vindictive and/or self-serving during the broadcast of their testimony. After all, a trial is a public event at public expense, and when it’s broadcast on cable it seemed to me that it ought to be fair game for commentary. But I’ve changed my mind: it isn’t. I won’t do this again.

Look at what media coverage has done to Casey Anthony’s family: pickets have surrounded their house; they’ve been accused of incest; they’ve been suspected of complicity in murder. In Florida, the courts have so little respect for privacy, videotapes of Casey meeting with her parents in jail have been broadcast across the country.

Trials must be public if liberty is important to us. America can’t conduct Star Chamber prosecutions. Cameras should be present in all courtrooms, and the public should have a way of monitoring the proceedings while they’re in progress. The technology exists to accomplish this via the Internet. CNN’s occasional live broadcasts are also informative—live, unedited.

But, edited cable broadcasts of completed trials (such as the Springer trial) aren’t a good idea, in my opinion. Grandmothers ought not to be interviewed in order to reminisce about a deceased grandchild and express uninformed opinions about her mental state. Snippets of a teenage sister’s testimony in support of her parents ought not to be used as trailers to a commercial broadcast. School children who testify should never be shown on camera. The faces of grade-school teachers should not be exposed on cable TV. (And the interrogation of a possible witness most certainly ought not to be shown on TV.) Footage of witness testimony ought not to be edited into a dramatic montage.

American law supposedly protects private citizens from public criticism: libel and slander laws prohibit defamatory comments about private citizens. Most of CNN’s In Session commentators are lawyers who know how to characterize bystander witnesses such as those I’ve mentioned without expressly defaming them, but it seems to me exposing them to public scrutiny is an invasion of their privacy, whether or not TV commentators are polite to them.

Furthermore, once a defendant is convicted, then positive commentary on the prosecution’s case and critical commentary on the defense’s case are fair game. Unfortunately, as a consequence, when a cable program such as In Session edits a trial and then presents it after the verdict, the commentators feel free to express highly critical, defamatory opinions of the defense without fear. For example, Calista Springer’s stepsisters have been likened to the stepsisters in Cinderella and were accused of “picking on” her. This is grossly unfair to them.

Many aspects of In Session’s new format are quite good. I like the new, on-staff trial commentators, who are measured in their remarks. The live coverage of breaking news is very good. However, the commercials that air on TruTV are entirely inappropriate: I can take only so many clips of drunks being arrested in any context, but in the context of real life-and-death matters it’s grotesque. And even though In Session repeatedly assures its audience that no testimony is being edited out, in fact it’s clear that the trial coverage is severely edited: the only thing that should be cut out is the faces of private citizens.

        

Thankfully there’s no license required to have children, or the government would probably prohibit intelligent people from becoming parents. Unfortunately, this also means that very stupid people can have children and almost always do. I’m afraid I think that’s what happened in the case of Calista Springer.

CNN’s In Session trial this week is Michigan v Springer & Springer, a tragic case in which a special-needs child (Calista Springer) died in a house fire while under physical restraints, which prevented her from escaping with the rest of her family. Earlier this year, a jury found the Springers guilty, a verdict that represents (in my non-legal opinion) our society’s misunderstanding of the impossibility of providing adequate care in a home setting for many incapacitated people.

Special Needs Children and Home Schooling in Michigan

The Michigan Department of Education provides services to children with special educational needs within the context of the public schools. But the state also gives almost complete latitude to parents to choose to use the services in the public schools or to choose homeschooling. In the Springer case, the child was supposedly being homeschooled.

I happen to approve of homeschooling in many cases, even though I’m a product of public schools and spent most of my life in academe (as the child of an educator, a student, a teacher). However, the Springers don’t appear to have been qualified to properly care for their special-needs child, let alone educate her.

Sidebar: Much was made of the fact that the child was being homeschooled.  I suspect that most school systems resent all homeschooling families and would like to find an excuse to take them all to court as child abusers. Instead, it seems to me, school systems ought to embrace homeschooling (as highly cost-effective with taxpayer dollars) and provide extensive support services to homeschooling families to prevent future such tragedies.

The idea that the State of Michigan could find no way to deal with this family’s problems other than to wait for a tragedy to happen and then to prosecute the Springers for child abuse and murder is disturbing. Once again, it seems to me, a jury has been thrust in between the voters (who pay the salaries of the prosecutors and the Department of Education) and the failed local government.

What better emblem of the way governments dump their worst problems in the laps of jurors is there than this? The blazing house in which Calista died is across the street from the courthouse.

Evil Caregivers

In every murder trial involving a defendant or a victim with disabilities, the issue of care-giving always arises.

The parents of serial killers, for instance, are always tried in public opinion. When such a loving parent takes the stand to explain the defendant’s mental problems and ask for mercy, she’s often vilified in the media. The In Session commentators always find such witnesses’ attitude toward the defendant inexplicable.

With their eyes on reelection, lawmakers rush to the cameras to push for another special, new law, like “Calista’s Law,” in this case against restraint of children, even ones who are a danger to themselves and others. This seems to be the typical legislative response to deaths of children and other vulnerable people in their families’ care: to criminalize caregivers and to penalize families for situations beyond their control.

Sidebar: It sounds to me as if the Springers weren’t qualified to care for Calista. They did mistreat her, apparently, although I’m not sure it was intentional. In the televised trial, a fire marshal claimed that if the bedroom door had been shut when the fire occurred, the child might have survived. (But how many parents know it’s safer in a house fire to have all bedroom doors closed? Surely leaving a door open isn’t child abuse.) Much is also being made of the way they provided her with no blankets even when she was chained to her bed. And, it appears as if they might not have given her access to a toilet at night. However, it doesn’t really seem that the restraints were unjustified. She shared a bedroom with other children who needed to be protected from her. If they had locked the bedroom door to keep her from wandering off at night, they would have endangered all the children in the room. What were their options?

In other cases, legislatures and the courts have made it impossible for adult children to take custody of their elderly parents; for families to commit adults to mental institutions although they’re dangerous or incompetent and then have also required hospitals to release such people once medication has controlled their behavior; have made it impossible to force mentally troubled people to take medication, even when it’s intended to prevent suicidal or homicidal behavior; have forced school systems to accommodate special-needs children in the general student population, even when their behavioral problems present risks to other students.

Consider the case of the Ohio highway shooter, Charles A. McCoy, Jr.  He was paranoid schizophrenic in  his family’s care  (on medication after having been repeatedly hospitalized) when he murdered 24 people at random by shooting them through their car windows. Had they permitted his family to have him committed to a state mental hospital rather than requiring them to take care of him, he would likely not have become a serial killer.

Remember when Britney Spears was self-destructing? Even her parents had to jump through legal hoops to help her.

Families at Risk

More and more families are faced with the need to care for mentally challenged people—with little social support for their efforts. A child like Calista Springer is called a “Cinderella in the care of a wicked stepmother,” because other children in the household survived the fire. Her parents are murderers as far as the State of Michigan is concerned.

I suspect, though, from simply observing the defendants in the trial, that the parents are themselves mentally challenged. I doubt we’ll see them take the stand, because their attorneys will advise them not to, so we’ll probably never know whether their behavior was intentionally abusive or just colossally stupid. (Frankly, I think stupidity is the root of most evil.)

The Springers aren’t the only caregivers the law and the media misunderstand. Adult children who seek guardianship of elderly, incompetent parents are assumed by the law to be greedy and exploitative, eager to take their inheritance before their parent dies. Custody battles between divorced parents often end in a child’s forced visitation with a physically abusive parent (fathers almost always have access to their children even when they abused the mother in the children’s presence). The list of untenable court and government-imposed custodial-care situations is endless.

Longevity due to improved health-care and healthier lifestyles increases the percentage of elderly with severe mental disabilities (longevity also leads inevitably to elderly with physical disabilities, too). Increased live-birth rates also increase the percentage of children with severe mental and physical disabilities who must be raised by untrained parents. Post-traumatic stress syndrome (not only from warfare but also from domestic violence) is recognized more often now, but no one seems to know how to accommodate its victims, other than to urge their families (if they have one) to “seek professional advice” at their own expense.

I’m no advocate of letting disabled people fall through the cracks or hoping they’ll die quickly. And as a civil libertarian, I fear the power of the state to institutionalize people it finds undesirable. But surely we could provide families with training and advice on how to care for special-needs children and adults.

How does it help for a Michigan legislator to try to tell a family raising a severely troubled child what it can and cannot do to protect the child and themselves? (Instead, they ought to provide families with proper, safe, restraints and in-home training.) How does prosecution for murder help the surviving Springer children when it deprives them of their parents?

Why didn’t the Michigan school system provide education and advice to the Springers when it must have been widely known that the Springers were home-schooling this child?

Even mental-health professionals are challenged when confronted with individuals with problems as severe as Calista Springers’. Science has found no cure. All the high-IQs, Ph.D.s, and M.D.s in the world had no advice to give the Springers, who may not have been intentionally cruel but only very stupid.

        

I believe the First Amendment rights to freedom of speech and the press have been greatly diminished in recent years by both the Right and the Left. Blogging, in particular, is so fraught with political peril that I am literally afraid to write anything about the sentencing of Scott Roeder for the murder of Dr. George Tiller, which is currently being covered by CNN’s In Session.

Anyone who expresses support for a woman’s right to the privacy of her own body is likely to be harassed or worse by the likes of Scott Roeder. Anyone who expresses concerns about the way the termination of pregnancy seems to be used inappropriately more and more often is almost guaranteed to be relegated by Google to the lowly ranks of a conservative blogger—or outright banned from the rankings.

The CNN In Session live broadcast of Roeder’s sentencing hearing isn’t the only legal issue about which a blogger is wise to keep quiet. For example, it isn’t always politic to criticize the courts. I suspect I’ve been permanently dropped from the rolls of eligible jurors in Cook County because of what I’ve written here. (I know, that isn’t entirely a bad thing.)

Spam comments aren’t the worst comments people have tried to post on this blog when I’ve suggested, for instance, that the cops aren’t always right.

And, once, a website (about which I blogged concerning their participation in a trial) had me banned from Google. I had to submit massive documentation to prove I was innocent of any violation of my Google privileges. In fact, I’m still quaking in my boots lest I ever again even mention the name of the website.

Recently I made a comment about www.icopyright.com, which prompted a comment from said website to the effect that I had misstated what they are, namely a nonprofit copyright protection watchdog. Of course, what they really are is a nonprofit front for for-profit online newspapers that want bloggers to pay for links to their sites—or allow them to post free ads on their blogs (as if a reference isn’t free advertising already).

This latter form of censorship is particularly irritating. In this case it isn’t a political faction that is succeeding in stifling free speech, it’s businesses.

CNN is also (in my non-lawyer’s opinion) censoring the Internet when they cover past trials on In Session. When such coverage begins, all CNN archival stories on the case mysteriously disappear from their own websites, and even local newspaper and TV reports are replaced with 404 Page Not Found error messages.

So, for those of you who are concerned, as I am, that the for-profit media (including for-profit Internet sites) are behind an attack on bloggers, I’ve put together a list of online resources to help preserve your most-fundamental American right to speak your mind:

• Chilling Effects Clearinghouse: http://www.chillingeffects.org/
• Vanderbilt University’s First Amendment Center: http://www.firstamendmentcenter.org/ 
• Electronic Frontier Forum: http://www.eff.org/ 

Frankly, it’s chilling just to run Google searches these days on “freedom of speech” and “First Amendment on the Internet.”

        

In January a minister named Matt Baker was convicted in a Waco, Texas, court of staging his wife’s suicide. The trial was covered last week on CNN’s In Session. “Forensic science” played only a small part in the conviction. Most of the evidence presented was circumstantial and based on eye-witness testimony, admissible “hearsay,” and the victim’s personal journals. The forensic evidence included the usual medical examiner’s testimony as well as computer forensics and fingerprint evidence.

Eye-Witnesses and Hearsay

The Baker trial was conducted in a rational, unemotional manner, as is appropriate. Of all the eye-witness and hearsay-witness testimony, the most dramatic and subjective, as well as the most telling, was that of the woman with whom Baker was having an affair at the time of his wife’s death. But it wasn’t this woman’s claim that Baker told her what he planned to do that convicted him (IMHO).

Baker’s conflicting statements and inexplicable computer-use is what convicted him. Taken in light of his wife’s statements from the grave (journals and psychological counselor’s testimony) that she thought her husband was trying to kill her, his production of an obviously phony suicide note, followed by his destruction of the computer and printer used to produce the suicide note, is what condemned him.

Given that Matt Baker was found guilty of first-degree murder in Texas, a capital punishment state, but he was sentenced to life, he’s a fortunate man indeed. Perhaps God really did hear his prayers.

The Forensics of the Suicide Note

Baker claimed to have found a computer-printed suicide note beside his wife’s body. It wasn’t hand-signed. The first cops on the scene handled the note. At some point, the note was dusted for fingerprints and many smudges were found, but no clear prints other than a palm print, which could not be matched to the victim (because her fingerprints were never taken) nor to any of the 18 or 19 people who touched the note or could have touched the note.

If I remember correctly, 18 of the 19 people were “excluded” from the palm print; the 19th person (Baker) “could not be excluded.”

The fingerprint expert testified for the prosecution. Both on direct examination and on cross-examination, she refused to fall into the trap of declaring definitively either that Baker could have made the palm print or could not possibly have made the palm print. Although she used the intellectually dishonest phrase that all forensics experts are trained to use (“could not be excluded from contributing”), she went on to explain why it was impossible for her to draw any such conclusion. This woman should be given a medal.

Unfortunately, the lawyers for both sides didn’t understand logic or inference. This is one of the great failings of American criminal justice. Even as we learn more and more about the natural world (how things work and don’t), the justice system continues to rely on the logic of ancient Rome (or earlier, perhaps Greece or even Biblical times).

The following isn’t a logical syllogism:

1. 18 people are known to have touched this piece of paper, and we know their palm prints; 2 other people we know of (the killer and the victim) could have touched this piece of paper, and we know 1 of their palm prints.
2. The 18 people whose palm prints we know and whom we know touched the paper could not possibly have made the palm print.
3. Therefore, the 1 person we know of whose palm prints we have but who won’t admit to having touched the paper and whose print might have made the mark is the most likely person to have made the palm print—not the victim and not some unknown person (from among the other 7 billion on the planet).

Sidebar: The above “logic” was that used by the prosecution. The defense used a similar “logic” to suggest that Baker could not possibly have made the print, because he was not “included.”

Even a superstitious old Greek like Aristotle would have gasped at that. Yet the American adversarial system constantly foists arguments like this on juries. 

Of course, when using fingerprints and palm prints as evidence, the courts also don’t understand that they aren’t “scientific” evidence at all: fingerprints are only suggestive, not real proof of anything.

Fingerprints:

• Aren’t provably unique
• Are subject to mutation
• Aren’t obviously identifiable, because they’re so complex
• Are rarely complete and clear

As evidence taken from a crime scene, fingerprints are meaningless unless they don’t belong to anyone who lives there or is known to have visited there for a legitimate reason.

Sidebar: It seems to me, it is the “thing” that shouldn’t be found at the scene of a crime that’s always relevant, not the “things” expected to be found: a stranger's fingerprint, an unlikely suicide note. Yet, forensic science goes out of its way to try to find things they can “include” and “not exclude.”

What difference would it have made—to the jury, especially—if Matt Baker’s fingerprints were clearly on the paper? He could simply have claimed that he always loaded the printer paper for everyone in the house.

In fact, this was Baker’s big mistake, in my non-legal opinion: he thought he needed to deny any contact with the suicide note and to destroy all evidence related to the printing of the note. He even told investigators at one point that he and his mother tried to find evidence on the computer’s hard drive of when the note was printed in order to show that the note was printed when he had an alibi. That really wasn’t necessary. If he was so worried about the note, why did he print one at all? Most suicides don’t leave a note.

Of course, Matt Baker like most murderers isn’t as smart as he thinks he is—or he would have been able to find another solution to his problems.

 

        

“Forensic Science” is an oxymoron.

The adjective “forensic” refers to debatable issues, not reality—opinions, not fact. The noun “science” derives from the Latin word for knowledge; it was first used in 1833 by an English “natural philosopher” (Whewell) to distinguish natural philosophy from other philosophy (not coincidentally because poet Coleridge warned him that his methodology ought to be distinguished from what daydreamers do).

When an expert witness takes the stand in a trial and calls himself a “forensic scientist” it ought to be a red flag that what he’s preparing to do is testify about his credentials to practice an art and then to express highly subjective opinions.

The Supreme Court and DNA

Last week at the eleventh hour the Supreme Court stayed the Texas execution of Hank Skinner in order to take a little time to consider whether a convict ought to have the right to examine the DNA evidence used against him in court.

This ought to give us all pause—it seems so obvious.

Last year the Supremes declared that prisoners do not have the right to demand that the cops test DNA they have in their archives.

How can this be? What bizarre logic is at work here? It’s simple. As Shakespeare said, “The law is an ass.”

The issue in the 2009 case (Alaska v Osborne), as I see it (and I am not a lawyer), was that the DNA was not presented as evidence in court. I guess the Supremes consider the evidence cops have on file as the government’s property and it can’t be “taken” for private purposes (only the government can take for public purposes).

Sidebar: The Osborne case is worth at least an article on its own. But there’s one point I have to mention here. The Supremes’ decision expressed concern about a flood of frivolous lawsuits flooding the court system for post-conviction access to evidence. Couldn’t a Supreme Court decision have been phrased so that such access is automatic and no lawsuit would be required? I suppose the Justices are so law-bound in their thinking they can’t imagine an issue that can be settled anywhere outside of a courtroom. Here’s a clue, Supremes: Think outside the courtroom.

The issue in the Skinner case is that the convict isn’t demanding that the state spend money on the tests; he has found a lab willing to conduct the tests for free.

Honestly, I can feel my blood-pressure rising as I contemplate this. So I’m going to stop writing.

It’s time the Supreme Court woke up to the indisputable fact that a courtroom is not a forum where facts are presented. A courtroom is a public-opinion forum.

        

Yesterday’s CNN InSession broadcast of the Matt Baker trial covered the testimony of a prosecution computer forensic expert named Noel Kersh, whose witness-stand rhetoric was excellent. Unlike most computer forensics experts I’ve heard, he was very clear without being patronizing and without oversimplifying issues to the point of absurdity.

However, Kersh’s testimony also illustrates what most bothers me about the use of computer forensics in the courtroom: it’s usually completely irrelevant.

Defendant Baker is a former minister who was convicted earlier this year of murdering his wife with a drug cocktail and then staging her suicide.

Sidebar: Kersh is an independent consultant. Apparently, the Waco cops have no computer forensics expertise. They may have compromised a laptop before Kersh could examine it and seem to have permitted Baker to destroy some evidence before the local Justice of the Peace declared the manner of death “undetermined.” Frankly, I think all forensic expertise ought to be supplied to local authorities by private contractors, but I also think local cops ought to have at least basic training in the collection of forensic evidence, including computers.

Relevant Computer Issues

In the Baker case, computers played an important role: not only was the victim’s system found to contain a lethal cocktail of sleep aids (most of which are thought to have been bought online), but she also purportedly left a computer-printed suicide note.

Because the cops didn’t suspect homicide immediately, they didn’t collect any computer evidence at the scene. They didn’t even check to see if there was a working printer with ink and paper (at least as far as I can discern). (You would think they would have protocols for examining suicide scenes, but apparently not.) They collected only the suicide note, and left their own fingerprints all over it.

Sidebar: Here’s a little shameless self-promotion. In a short story, “’Tis the Season to K.I.S.S.,” my killer-heroine uses a computer and printer without leaving a single clue for the forensics guys.

The Baker home at the time—as I understand it from TV coverage—had at least two computers, a laptop and a desktop. By the time the cops wanted to examine the desktop (several months later), Baker claimed to have gotten rid of it. The cops seized the laptop, but compromised the data by inadvertently turning it on and booting it up by opening the screen. Both of these computers might have held evidence of the suicide note—key evidence.

IMHO—as a computer owner since the very early 1980s—the Baker’s missing desktop is extremely suspicious. If I were an investigator, I would have tried to track this computer down.

In my experience, a computer is the most-difficult item on earth to discard. I and my friends all have several generations of computers stored in basements, attics, garages, and even under my current computer desk. It’s illegal to dump them in a landfill here (IL). You have to pay specialists to recycle them (and even then you have to transport them to the recycling facility; no one will pick them up). If you leave them on the curb for a scavenger to collect, you have to remove the hard drives for fear of identity theft. You might be able to resell them on eBay, I suppose; but you’d better wipe them clean with a really good hard drive reformatting tool.

Online Searches

The core, surviving computer evidence in the Baker case was evidence of Baker’s online activity: web searches and websites visited. Most of this data was collected from computers where Baker worked, since his home PC had “vanished.”

Kersh did a great job of finding Baker’s searches for online sources of drugs and of proving Baker was the user, not someone else in the office: he found near-simultaneous email activity to and from Baker’s email address. I can’t say enough about how well-done this documentation was. Unlike other cases (Scott Peterson, for example), Baker’s online identity was documented. According to Kersh, Baker searched extensively for online pharmacies where he could have obtained the drugs that were found in his wife’s system.

Honeymoon Websites

The prosecution also questioned Kersh about Baker’s online activities after his wife’s death. This is where I begin to question the “evidence.”

Kersh found evidence that five weeks after his wife’s death, Baker made inquiries about a Fiji honeymoon with his fiancée. So what? Baker was having an affair with a divorced, single mom when his wife died. Is it suspicious that he would want to marry her as soon as possible? He had two daughters of his own to care for at that time.

No, I’m not naive. I don’t think it’s entirely proper for a man to marry so soon after the suicide of his wife, but I also don’t think this is entirely proper evidence of guilt that should be presented to a jury.

In every murder trial, much is made, I know, of “the defendant’s state of mind,” because the law permits evidence of state of mind at the time of the alleged crime. Intent is a key element of the law. But what does the defendant’s state of mind long after the crime have to do with anything?

Prosecutors need to get a life, I think, when it comes to computer evidence. And, yes, I need to get a life, too. (And I pray I’m never accused of a crime based on my bizarre computer searches as I research murder.)

        

A couple of years ago I watched with great interest a CourtTV broadcast of the trial of a Vermont woman named Hope Schreiner. She was charged with murdering her husband by first trying to kill him with a drug overdose and, when that didn’t work, by bludgeoning him to death with an unknown blunt instrument. It was such a classic “Black Widow” case that I used several of the elements in the plot of THE JUROR HANGS.

Black Widow Cases

The classic “Black Widow” murder—it seems to me, a mystery writer—include: 1) a wife who poisons her husband, 2) rumors among friends, family, and neighbors, 3) feeble, pathetic, or incapacitated victims (in other words, a victim whose wife is his caregiver), and 4) stereotypes about women, such as “poison is a woman’s weapon” and an unloving woman is inherently evil.

Time of Death and Air-Tight Alibis

One aspect of the Schreiner prosecution that struck me as particularly unfair was the medical examiner’s testimony about “time of death,” which is one of the three things an autopsy must determine:

1. Cause of death (medical)
2. Manner of death (legal)
3. Time of death (fact)

A medical examiner (usually a physician with a specialty in forensic pathology) conducts an autopsy in cases of suspicious death (usually deaths that occur when the deceased wasn’t under the care of a physician when he died). An autopsy is essentially a dissection of the body, but before the first incision is made in the body the ME must document three physical conditions as a means of determining how long the body has been dead:

1. Rigor Mortis: Stiffening of the muscles and joints, beginning in the extremities and progressing toward the torso;
2. Lividity: Settling of blood due to gravity, in the lowest parts of the body (back for instance, if the body rests on its back);
3. Core body temperature (liver temperature): This requires an incision; a thermometer is inserted into the liver.

Each of these body changes is an indicator of time of death, because the amount of time for each of them to commence and end is well documented. (Note: Each of these is also a very wide range, very imprecise.)Each of these is also affected by the ambient temperature of the environment in which the body was found: in general, the warmer the environment, the slower these processes, while the colder the environment, the faster. The breath of life is literally warm. Even mystery writers know this.

In a murder case, the time of death is critical, because it can prove a defendant’s innocence. If a defendant can prove where she was at the time of death it’s an alibi—an affirmative defense. In many cases, an alibi can completely exonerate a person even before charges are brought.

In most cases, of course, defendants are unable to prove an alibi—not because they’re guilty but because many people are alone most of the time and most people are alone at night—asleep in bed. (Heaven help the defendant who’s accused of committing murder at midnight! Think Juan Mendez, Jr.)

Black Widow Alibis

In the Schreiner case, the defendant had a solid alibi for most of the morning (I think I recall she could document her whereabouts from about 9:00 a.m. to about 11:30 a.m.), but—coincidentally I’m sure—the medical examiner testified that the time of death was after 11:30 a.m. when the defendant was home and later found her husband bludgeoned to death in the driveway at 12:30.

In another so-called “Black Widow” case (the Raynella Dossett-Leath case) the defendant was also accused of having tried first to kill her husband with an overdose of barbiturates and then, when that didn’t work, of staging his suicide by gunshot. She also had a solid alibi for roughly the same time period. At around 11:30 a.m. she discovered her husband’s body in bed with a bullet hole in his forehead. And again—coincidentally I’m sure—the medical examiner testified that the time of death was early morning (before 9:00) when the defendant admitted to have been at home.

No Liver Temperature

In both the Schreiner and the Dossett-Leath cases the medical examiners failed to take a liver temperature before the body was refrigerated. As every mystery writer knows, liver temperature is often the single best indicator of time of death, because both rigor mortis and lividity can increase and subside before the body is discovered, but core body temperature only decreases—and decreases at a relatively predictable rate. In addition, the deceased person’s state of health (good or poor circulation, for instance) can affect both rigor mortis and lividity.

The Schreiner Time of Death

During the Schreiner trial a great deal of testimony had to do with time of death and the alibi. Eventually the defense attorneys managed to elicit an admission from two physicians that no liver temperature was taken. Unfortunately, the defense failed to hammer the implications of this fact home to the jury.

Briefly, the testimony was:

The body was found at around 12:30 outside in the sunlight. The first responder, an EMT, said he had to “crack the jaw” of the victim in order to administer CPR and attempt resuscitation (indication that rigor mortis had begun to set in—in a cold environment this might indicate that death had occurred only about 30 minutes earlier, but in the warm environment it might indicate that death occurred up to two hours earlier).

The first medical examiner on the scene was a volunteer; in fact he just happened to be the victim’s personal physician. While trained to take a liver temperature at the scene of a death, he decided not to do so, because (he said) he didn’t want to upset the deceased’s loved ones who would be looking on (as if they wouldn’t be upset by his bashed-in skull). He also said that there was no rigor mortis present. He had been able to manipulate the jaw easily (of course, the EMT had released it). This physician’s testimony was relied upon by the county medical examiner, who also didn’t take a liver temperature.

The county medical examiner who conducted the autopsy many hours later testified that the time of death could not have been before 11:30, because there was no evidence of rigor mortis when the body was found. Even taking into account that the environment was quite warm, and even though it had lain in the sun for quite some time, he insisted that rigor mortis would not have been present at 1:00 p.m. when the first physician examined the body.

However, it is well known that onset of rigor mortis can be delayed as long as two hours when the body is in a very warm environment.

Obviously, the victim’s time of death in this case could not legitimately have been pinned down to after 11:30, when the EMT had to crack the jaw at 12:30. Since the environment was warm, the time of death could have been as early as 10:30. Had the first medical examiner taken a liver temperature, he might have collected far more-accurate data. Instead, the county medical examiner conveniently insisted to the jury that the defendant’s alibi was worthless, because he was sure the time of death couldn’t possibly have been before 11:30.

The Dossett-Leath Time of Death

In the Dossett-Leath case, the defendant had an alibi from about 9:00 a.m. (after breakfast) to 11:30, when she called 911. An hour later, at about 12:30 a police investigator telephoned the medical examiner’s office to notify them of the death. Apparently, no medical examiner ever responded to the scene and, instead, the body was transported to the morgue for the autopsy a couple of hours later.

At the morgue, the medical examiner did not even conduct a superficial examination of the body to determine rigor mortis or lividity at that time. The body was refrigerated and at 8:00 a.m. the next morning was removed and the autopsy conducted.

The autopsy report describes the rigor mortis at that time as present “to an equal extent in all joints” and lividity as “fixed and well developed.” This is hardly surprising given that at least 21 hours had passed and the body was in a refrigerator for at least half that time. The report makes no mention of a core body temperature or a liver temperature.

Nonetheless, at trial the medical examiner declared to the jury that the time of death was before breakfast—just coincidentally at a time for which the defendant had no alibi.

Sidebar: I wrote recently about the revolver found in the deceased’s hand; it seemed to me as if the cops must have removed it from his hand before they called the medical examiner’s office. Subsequently, the defense attorneys discovered that the cops had, in fact, removed the gun. Now that I’m thinking about time of death, it occurs to me that this might indicate something about the degree of rigor mortis at the time the body was discovered. The finger and hand joints are among the first to grow stiff in rigor mortis (it begins in the head area). If the gun was easily removed from the hand, would that indicate the death was recent? At least within the past two hours? And that rigor mortis had not yet commenced?

Black Widow Alibis

I know, two data points (two trials and two MEs) do not make proof, but I think it’s very strange the way female defendants’ alibis can be disproven by autopsies that don’t really address the physical evidence of time of death.

The medical examiners in these two cases aren’t the only MEs who seem to play fast and loose with time-of-death findings. But in both these cases, female defendants were found guilty, despite their good alibis, in large part because the MEs set the time of death at a time not covered by the alibi. Is it just me? Or does this sound as if the MEs talked to the police before they decided on a time of death?

        

What is it about a pudgy former minister that could attract a beautiful woman like Vanessa Bull? This isn’t a rhetorical question by any measure, but the answer is obvious anyway: most women have incredibly low self-esteem.

CNN’s In Session is covering the January trial of a former Texas minister named Matt Baker in which he faced charges of murdering his wife and trying—inexpertly—to stage it as a suicide. As I understand it, Mrs. Baker—who was herself very pretty, although older than Ms. Bull—had been depressed over the death of one of her children when she learned of her husband’s affair. As a result, allegedly, she became suicidal.

Whether or not Matt Baker really killed her, Mrs. Baker’s response to discovering the affair is what tells me how it can be that a pudgy, middle-aged man can attract two such attractive women is: women generally have very low self-esteem.

The Suicide Note

In this case, what interests me the most, though, is the supposed suicide note. If I were a juror on this case, much would alert me to the lack of reasonable doubt in this case, but the single most telling piece of evidence is that note.

Several aspects of the document stand out: 1) it was written on a computer and printed; 2) it was an apology to her surviving children and husband; and 3) the prosecution’s fingerprint expert’s testimony was excellent—I can’t praise her too much (and I almost never like prosecution witnesses).

1) Who takes the time to print out a suicide note when you’re suicidal and have taken or plan to take an overdose of drugs? No one. It’s too impersonal. You want your final words to be in your voice, and your handwriting is a personal expression, while a print-out is not.

2) I have a theory that anger is the essence of depression, and suicide is the ultimate angry act. I’m not saying that the people a suicide leaves behind are guilty of something that incites the anger—not at all. But I do think that depression comes from an inability to express anger, and it turns inward. So, I can’t believe most suicidal people write apologetic notes.

Sidebar: A simple Google search on “studies of suicide notes” turns up an interesting list of academic work on the content of suicide notes. I recommend you try it. I knew that suicide notes are relatively uncommon, but I was surprised to find 750,000 results in the listing. I suppose I should have expected there to be a huge number of studies of suicide notes, as a former English teacher. Everything that’s ever been written has been analyzed, dissected, interpreted endlessly by all us English majors. Really, there’s nothing left for literary critics to write about.

3) The prosecution’s fingerprint expert used exactly the right rhetoric, in my opinion. She was clear, thorough, and genuine (as opposed to artificial, as are most investigative witnesses). The prosecutor attempted to get her to cite bogus statistics as a way of proving the defendant could have handled the note even though his fingerprints weren’t found on the note.

Specifically, the expert said she could eliminate several reference prints from having contributed to a smudge on the paper. Apparently she had 19 reference prints to work with, including the defendant’s and the police officers’ who responded to the 911 call. All but one of these could be eliminated as having made the smudge because of a single distinctive feature of the smudge. Clearly, the defendant’s sample could not be eliminated, but the expert refused to say—as the prosecutor tried to lead her to do—that the defendant could have been the person who made the smudge. The expert said she only had 19 samples. She had no way of knowing who made the smudge. Essentially what this expert did was refuse to use that ghastly phrase, “The defendant’s prints could not be excluded.” Bless her!

Computer Forensics

The fact that the note was printed from a computer clearly suggests that computer forensics might have been used effectively to prove or disprove the deceased woman wrote the note. Apparently, though, the investigators accidentally turned on a laptop before the data was collected from the hard drive.

More investigative idiocy: the investigator didn’t realize you can start up a laptop just by opening up its screen. And the prosecutor—not unexpectedly—couldn’t understand what’s wrong with this, namely, that every time you start up a computer you write new information to the hard drive and can overwrite old data that might be relevant.

Let’s face it: all lawyers, not only prosecutors, need to go back to school and learn something about math, statistics, technology, and the scientific method.

        

The Worcester, MA, Telegram has an interesting column today by Dianne Williamson, titled “Juror carries a burden for all of us.” Ms. Williamson writes about a juror’s experience in a 1995 trial, which haunts him to this day—and I have no doubt it will haunt him forever.

I’m still haunted by a far-less traumatic trial in which I was a juror in 2007. In fact, the experience redirected my writing toward the justice system. Since I write for several hours every day, that means my thoughts are often on my courtroom experience.

What strikes me most about the Worcester juror’s experience is how similar it was to mine. The stress came primarily from the trauma of reliving a violent crime and then from the judge’s cavalier dismissal of the jury’s decision. In the Worcester case, the crime was a homicide that resulted from a parking-lot brawl. The jury found the defendant guilty of first-degree murder, but the judge later overturned the verdict, reduced the charge to second-degree murder, and assigned a penalty of 15 years in prison so that the convict would be eligible for parole in 15 years. He has now been released and rearrested on parole violations.

In my Cook County experience, the crime charged was kidnapping and aggravated sexual assault. The jury found the defendant not guilty of kidnapping and guilty of aggravated sexual assault. The judge told us after the trial that we had erred in the not guilty verdict. She had wanted us to find the defendant guilty so she could sentence him to 30 rather than 15 years—yes, I, too, thought justice was supposed to be blind. In addition, she told us it didn’t matter anyway, because the defendant had skipped bail and was on the loose. He would never go to prison at all.

How could this have happened? Well, it turned out the defendant was free on bail, despite the violence of his charges. After his public defender admitted to his guilt of the sexual assault charges during his opening statement, the defendant had fled. The rest of the trial was conducted without him. We the jury stupidly believed the judge when she said he had “chosen not to be present in the court.”

In the Worcester case, it seems to me, the problem could have been avoided had the judge refused to allow the prosecutor to over-charge the defendant in the first place. In the Cook County case, the problem could perhaps have been avoided if the judge hadn’t colluded with the prosecutor to over-charge the defendant, too.

Unfortunately, I think the justice system manages to avoid juries all together when it’s working fairly (or maybe I should say is barely working). The only cases that end in jury trials are either ones in which the asystem wants to jail a defendant and throw away the key or ones in which the defendant feels—rightly or wrongly—he is being unfairly treated.

Evidence: CNN’s In Session is currently covering the January trial of a former minister, Matt Baker, for staging his wife’s suicide by drug overdose. Baker obviously either felt he was innocent, was too clever to be convicted, and/or didn’t deserve to be punished (a rather self-righteous personality).

Sidebar: I’ve admitted to a tendency to find conspiracies in everyday events, but only because I write fiction, not because I’m crazy. However, does anyone else think it’s odd that since In Session evolved from live courtroom testimony to edited broadcasts of past trials you can’t run a Google search and turn up articles on the verdicts in these cases? It’s almost as if local media have removed all verdict stories from the web. It’s certainly clear that CNN has removed all verdict stories from its site until In Session reveals the verdict. And, frankly, it even looks to me as if Google is cleaning its archives of these stories. Now, the last time I explained in this blog that Google removed archives occasionally at user request, my blog also vanished from Google listings all together. It was very difficult to restore my ranking. I take it back: I must be crazy to be writing this.

        

I’ve written quite a bit in this blog about the two murder trials of Raynella Dossett-Leath, whom Knoxville, TN, media dubbed the “Black Widow.” This woman’s story is nothing short of a Greek tragedy—whether or not she’s guilty. (But I’m increasingly convinced she’s innocent.)

After Ms. Dossett-Leath was convicted of murdering her second husband by staging his suicide, I heard from Dossett family friends, who were interested in what I had written about the case. We corresponded briefly. Yesterday I learned that something I wrote led them to contact the defense team who investigated further and now have uncovered new evidence in the case. Attorney James Bell has petitioned Judge Baumgartner to order a retrial or overturn the verdict based on this new evidence.

For me, a mystery writer, who lives in a fantasy world, this is a very strange situation. I still can’t quite comprehend it. Instead of writing a whodunit plot that ends with a clever twist, in this case I wrote about a real human tragedy, and now it seems that what I wrote may help exonerate an innocent woman.

A Blog Post on Colt .38 Cartridges and Casings

The issue that caught my attention a few weeks ago was the empty shell casings found in a Colt revolver beside David Leath’s body. According to the prosecution and investigators, three empty casings were found in the cylinder. Because of the casings’ positions, the second of three bullets fired was deemed to be the fatal bullet. If that was true, then the shooting was homicide, not suicide.

The prosecution claimed Ms. Dossett-Leath staged the entire scene to look like suicide. They said she fired the three bullets, the second of which struck her husband in the forehead (yes, it’s a rather bizarre staging), and then placed the gun in or near her husband’s left hand. As Mr. Bell told reporter Balloch, “It was in fact law enforcement setting the stage.”

What puzzled me was how crime-scene investigators could know there were three empty casings in the cylinder when the gun was still in the dead man’s hand. Now defense attorney, James Bell, has uncovered evidence about the original police investigation that proves my theory: they only knew because they took the gun out of his hand, ejected the casings, and then replaced them and put the gun back in the deceased’s hand.

According to Knoxville reporter Jim Balloch, Mr. Bell learned that one of the patrolmen who first responded to Ms. Dossett-Leath’s 911 call was seen holding the gun in his hand before detectives and the CSI unit arrived. Unbelievable! What would possess a cop to touch a weapon that was covered in blood? That also explains why they couldn’t recover usable fingerprints from the gun.

Dumb or Unlucky?

I wrote last year that I thought it was possible Ms. Dossett-Leath was either the dumbest “Black Widow” murderer ever or one of the unluckiest women on the planet. Now it looks to me as if the dumbest person involved was a patrol cop and Ms. Dossett-Leath is, indeed, one of the unluckiest women on Earth: she will go on trial early next year for murdering her first husband by drugging him and then throwing him out of his wheelchair in the path of a cattle stampede. (Here, too, we have to ask how dumb she is. The poor man was dying of cancer. If she killed him, it must have been because she was not only dumb but impatient.)

I’m very happy for the Dossett family. I hope Ms. Dossett-Leath will soon be released from prison. And I also hope the Leath family will reconsider their conviction that their loved one could not have committed suicide.

        

It tolls for thee.

Last week an ordinary circuit court judge in Texas heard the bell toll and did something simple and good for us all. He refused to permit a prosecutor to try a defendant for capital murder. He said the obvious: Capital punishment denies a defendant the right of due process under the law.

Houston Judge Kevin Fine accepted a pro-forma pretrial defense motion in a murder case, which argued that the death penalty violated the Constitution. Texas Governor Rick Perry claimed Judge Fine was simply legislating from the bench, and now everyone is saying the judge’s ruling will be overturned on appeal.

In my opinion, and I am not a lawyer—just a mere citizen of the U. S.—it was neither legislation from the bench nor is it a slam-dunk to be overturned.

The Constitution makes the judiciary independent of both the executive and the legislative branches of government, in the states as well as the federal government. If a judge finds that any legislation violates fundamental principles of state or federal constitutions, then he is required to throw it out.

Judges constantly find fault with laws and make law through their decisions. Politicians seem to think they alone are entitled to make law; they never want anyone—including the people—to make law (witness the way Illinois politicians blocked the constitutionally mandated opportunity for a constitutional convention in this state or the way they complain about California’s “initiatives”).

If the Texas appeals courts understand the wisdom of Judge Fine’s decision, they will uphold it. After all, last year in Texas an executed convict was exonerated for all intents and purposes. Why should the courts enable future wrongful executions like that? The citizens and taxpayers of Texas ought to be worried about how horribly this distorts their justice system (and, besides, it’s time they took a look at the exorbitant cost of trying capital cases).

Let This Be the Last Toll

Like most obvious truths, apparently no one saw it until one person had an insight. I certainly didn’t. I was fixated on the issue of “cruel and unusual punishment,” a concept I believe is misunderstood by speakers of Modern Standard American English.

Obviously, as Judge Fine said, an irreversible punishment denies an innocent defendant of due process under the law. And every defendant is presumed innocent until convicted. But even if the presumption of innocence ceases when a person is wrongfully convicted, due process rights are not discontinued. Every convict is entitled to appeal, to beg for mercy, to be pardoned, or to have his punishment commuted.

From a juror’s perspective, capital punishment is grotesque. No one should be asked to decide whether someone else—who has done nothing to her—should live or die.

Worse yet, the law in this country requires a jury to decide the sentence in a capital punishment case, and those juries must first be “death qualified.” In other words, before the trial even begins, the jury has to swear to support the idea of capital punishment, which is a sure and certain sign the jury is inclined to convict defendants charged with murder. This is also a violation of a defendant’s right to due process. At most, there should be two separate trials—one for guilt and one for the sentence—with two different juries.

I pray that this decision will be appealed to the U. S. Supreme Court on a fast track and that the Supremes will acknowledge the wisdom of declaring capital punishment unconstitutional under the Fifth Amendment right to due process.

The justice system will be infinitely more just without capital punishment. While innocent people may still be convicted and sentenced severely, though wrongfully, at least they will have the opportunity to continue to pursue the due processes of the law from behind bars.

 

        

The purpose of a legislature must be to legalize stupidity. The purpose used to be to write a few clear, simple laws to enable civilization. Then they invented Daylight Savings Time.

Twice a year, Americans force their biorhythms into jetlag by getting up an hour too early or going to sleep an hour too late. If anyone ever bothered to check the statistics, I’m sure they would discover a dramatic increase in all sorts of accidents in the weeks following a shift between “real time” and “Daylight Savings Time.”

Jetlag is a big problem for me—more than most people. No matter how much melatonin I consume when I travel, it always takes me three days to function at even a minimal level in a new time zone. The changing clock is just as bad as travel. I can barely form a sentence right now.

If anyone ever again says to me, “Well, at least we get an extra hour of sleep tomorrow morning,” I’ll have to find out what drugs they’re on, because that’s the only way they could possibly get an extra hour of sleep.

The History

Did you ever wonder where “they” got this goofy idea? I decided to “look it up” this morning in honor of my jetlag. The National Geographic has a fairly decent article on the topic, and something called “WebExhibits” has a much more detailed, but somewhat bizarrely laudatory, article. However, the WebExhibits article rings true to me: while it accuses Ben Franklin of dreaming up the idea, it traces the mandatory law to WW I Germany. (BTW: Wasn’t it Franklin who said, “Early to bed, early to rise, makes a man healthy, wealthy, and wise?” And, if so, why did he care what the clock said when he got up?) The idea that the autocrats in Germany devised this law to force factory workers to spend every waking daylight hour in the munitions factory makes sense.

The Uniform Time Act of 1966

During the Vietnam War Era, the federal government passed the Uniform Time Act. The WebExhibits article traces the law in Europe back to wartime, too. Is this just a coincidence? I doubt it. In time of war, it seems to me, governments get very insistent about everyone toeing the line.

Overtly, though, the driving force behind this 1966 enforced uniformity was so national television broadcasts could be aired from the east coast to the west without too much disruption of the on-camera talents’ day. Now, of course, if you live in the Central Time Zone you have to schedule your TV viewing time around broadcasts that begin at “seven o’clock Eastern Time and five o’clock Pacific.” And if you’re in global business, you still have to get up at two in the morning to make a conference call in Europe.

If uniformity is so valuable to the government, why don’t we just do what they do in China? In China there’s only one time zone, Beijing time.

The Junk Science of Daylight Savings Time

Does anyone really believe that changing the clocks gives anyone more daylight? Someone recently told me her farmer-father benefitted from Daylight Savings Time. I was so stunned I couldn’t think of anything to say. I walked away from her without asking the obvious: “How?” Surely her father doesn’t think his corn crop gets more sun because of it.

In 2005, the Congress extended Daylight Savings Time several weeks, because (“they” said) the extension would help save energy—which we all know is expensive (The Energy Policy Act). Lets analyze this: Depending on where you live on the planet, more or less sunlight strikes you at any given time than strikes other people at other places on the planet. There’s nothing you can do about it except move elsewhere. When it’s dark out and you’re awake, you have to turn on lights. If you have 12 hours of darkness, for instance, and you sleep 8 of those hours, you need to turn on the lights for 4 hours. If you have only 8 hours of darkness, you might not have to turn on the lights at all. Shifting your sleeping and waking hours 1 hour in either direction doesn’t change that fact.

In 2005, I heard a local news commentator say the extension would help school kids who have to stand in the dark in the morning to catch the school bus. Interesting. I could swear the dawn comes earlier beginning in December—earlier and earlier every day—without the help of my alarm clock.

Since the school year in America (late August to late May) was originally designed to permit farm children to help out on the farm during peak growing months, it’s rather ironic that now we’re worried about school children standing in the dark. Besides, Daylight Savings Time runs (now) from October to mid March. Why not extend it from August to May to help out the kids? For that matter, if Daylight Savings Time is so great, why not do away with Standard Time all together?

Well, because the problem with the dawn isn’t an east-to-west problem; it’s a north-to-south problem. I’m not a planetary astronomer, but I have experienced this phenomenon personally, so I know this is true.

I went to grade school in Canada. I walked to school in the dark in the morning, and I walked home in the dark in the afternoon. I went to high school in the southern U.S. I rode the bus in the morning in broad daylight, and I went to sleep at night in broad daylight, too. I’ve traveled as far north as Sweden and Iceland in the summer when the sun never set. No amount of “saved daylight” will ever decrease the number of hours per day the people of the north need to have the lights turned on or increase the number of hours the people of the south have to keep their curtains closed to block out the sun.

“They” standardized on Daylight Savings Time when I was in high school in the south. I remember for months every time I went to a movie they played a “public service announcement” lobbying against it: “Save God’s Own Time.” Even as a teenager, I realized how stupid that was. But I didn’t worry then about the stupidity of Daylight Savings Time itself. I had much more to worry about. Now I wish the adults who were in charge then had worried about it a little more than they did.

I’ve heard rumors that the impetus behind the crackpot 1966 Daylight Savings Time idea was that Congressmen wanted to be able to play more golf before and after legislative sessions during the winter. I’ve also heard rumors that manufacturers of leisure equipment (barbeque grills and golf carts) thought they could increase sales by mandating clock changes. In 2005 I personally heard the Congressman behind the extension say he had calculated how many fewer light bulbs would have to be purchased.

I would say this was corruption or madness if I didn’t know for a fact it’s just stupidity.

        

Here’s yet another reason jury duty has such a bad rep in the U. S. One judge jailed a stay-at-home mom for striving her best to do her duty, even when her two young children were at risk of having no daycare. Essentially, as I understand it, the judge ordered a parent to abandon and neglect her children in order to serve on the jury—which, of course, is a very serious crime: http://detroit.momslikeme.com/members/JournalActions.aspx?g=190183&m=10591415&si=Comments&pi=6#10598150 

For more on this bizarre judicial behavior, please refer to this copyrighted article in The Oakland Press.

Here’s an interesting account of jury duty in England. Apparently there juries are called for a fixed number of days and may end up serving on more than one trial. It also appears that voir dire there doesn’t weed out the bad pennies: http://notoverthehill.com/user/blogs/view/name_Mondayb/id_10065/title_jury-service/

        

I know almost nothing about guns except they’re dangerous. I suppose that’s why I’ve never written a mystery in which the murder weapon was a gun. But in the recent murder trial(s) of Raynella Dossett-Leath, the weapon posed a very great mystery, which I have yet to solve to my satisfaction.

The issue: Which of the three bullets fired from the Colt .38 revolver was the fatal bullet? Obviously, David Leath could only have killed himself with the third bullet. If the first or second bullet killed him, it had to be murder.

Essentially, as I understand the situation (from my memory of the trial broadcast by CNN in early 2009):

• three empty casings were found in the cylinder
• three bullets were fired (one found in the headboard and wall, one in the mattress and on the floor, and one in the victim’s skull)
• the gun was loaded with two types of shells (2 of the 3 were Remington brand)
• the casing found under the firing pin (the last one fired, obviously) was not a Remington shell
• the bullet in the victim was a Remington

This would be a slam-dunk murder, except for certain anomalies between the autopsy report (at least in my very-uninformed, mystery writer’s opinion) and in the testimony of the Tennessee Bureau of Investigation’s ballistics expert.

The Crime Scene

As I understand it—through a glass darkly—the detective found the victim’s body in bed, lying more or less on his right side, his left arm across his body, the revolver in his left hand, and a bullet wound more or less over his left eye. Blood covered the right-hand side of the bed, possibly obscuring the bullet hole in the mattress there. The bullet hole in the left side of the headboard was visible, though.

Within an hour of the 911 call reporting the discovery of the body, the detective called the county medical examiner’s office and reported that three empty casings were found at the scene (the autopsy contains this information): “Detective Moyers stated three (3) casings were found at the scene, still in the weapon that had been fired. The weapon was a Colt revolver.”

This is the first anomaly: How did the detective know there were three empty casings in the revolver if the gun was still in the victim’s hand when later the CSI unit photographed and videotaped the crime scene?

Colt .38 Revolvers

In the mystery fiction I’ve read, the issue of spent casings is always important, but it’s usually because the casings are found on the ground where they were ejected from the murder weapon. So, at first I naturally assumed these casings must have been found somewhere on the bedroom floor around the victim. However, that would have meant that the Tennessee Bureau of Investigation must have found a way to match the casings with the three bullets.

However, every mystery writer knows that crime labs may be able to match bullets with guns, but there’s no way to match casings with bullets unless the shells are of different types. Of course, in the Dossett-Leath case, the bullets were of two different types.

However, to declare that the fatal bullet was not fired last, the crime lab would have had to match not only the casings with the bullets but also the casings with the chambers in the revolver’s cylinder—and that’s impossible, too. (I won’t go into why just now.)

Then I learned that revolvers don’t eject their casings when a bullet is fired. The gun’s operator must manually eject the casings.

Colt Revolvers in Action

The easiest way for me to illustrate the operation of a Colt revolver is to direct your attention to several YouTube videos.

An overview of a Colt revolver (specifically a Colt .38 detective special, about 5 minutes): http://www.youtube.com/watch?v=IFRq2wrKa_k 

Firing of a WW I Colt revolver (showing loading of bullets, about 2 minutes): http://www.youtube.com/watch?v=po8mzlJdglw 

Firing of a double-action Colt revolver by a teenager (note that he fires 7 times to be sure all the bullets have been fired, also note no casings self-eject): http://www.youtube.com/watch?v=f0Cb0_5LBys&NR=1 

Loading a single-action revolver (about 1 minute): http://www.youtube.com/watch?v=wfaaZDjxNw0&feature=related 

Most importantly, unloading a double-action revolver: http://www.youtube.com/watch?v=02tGhg98uUo 

How Did the Detective Know 3 Casings Were Empty?

Disclaimer: I know nothing about guns but what I observed in the above YouTube videos.

But, to me it looks as if the only way the detective could have known within less than one hour on the scene that there were three empty casings in the revolver’s cylinder was by removing the gun from the hand, opening the cylinder, and manually ejecting all the casings and shells—all of them. If he only ejected the casings he thought were empty, he might have been wrong about the number of empty casings.

He could safely assume the casing under the firing pin was empty. And I suppose he could have had enough experience with revolvers that he could eyeball a cylinder and tell which were empty casings and which were not. But the position of the gun in the victim’s hand surely obscured his view.

If he removed the gun from the hand and opened the cylinder, he might have noticed there were casings of two different manufacturers. That might have piqued his curiosity. But, surely, police procedures would prohibit him from ejecting the casings and shells at that point. He had plenty of time to do that after the CSI guys arrived, documented everything, and collected everything properly (without destroying evidence), including the gun with the shells and casings intact.

At this point, of course, my lack of knowledge prevents me from saying with confidence that the detective must have ejected the casings before he determined that there were three—and only three—empty casings in the cylinder.

Furthermore, perhaps the CSI unit arrived promptly and had already documented everything within an hour of the body’s discovery. However, I could swear I remember it coming out in the first trial that the CSI unit or at least the videographers were late to the scene. (Perhaps someone can comment on this and correct my memory.)

The Casings Had to be Ejected

It seems to me, the only way the county medical examiner’s office could have noted one hour later that the detective found three casings at the scene is if someone ejected them from the gun in that first hour—whether it was the detective or a CSI guy. Otherwise, at best I feel the detective would have had to tell the medical examiner’s office that he suspected there might be more than one empty casing.

This is the second anomaly: the person who testified about the significance of the sequence of the casings in the cylinder was not the person who ejected the casings; it was a ballistics expert from the Tennessee Bureau of Investigation. He testified that when the lab received the gun, the casings were in the cylinder in that suspicious sequence.

That means—obviously—that after the casings were ejected, they were later replaced in the cylinder in that sequence before the revolver was shipped to the TBI.

How did the judge and jury who convicted and sentenced Raynella Dossett-Leath to life in prison know for sure the casings were replaced in their original positions? Were the detective, CSI guys, and ballistics expert all cross-examined about this? Were crime scene photos of the open cylinder taken before 12:30?

        

For several days CNN’s InSession has covered the Florida trial of Mark Schack for murder. Schack claims the shooting of his significant other, Amy Boscarino—with a high-powered rifle at 2:30 in the morning while she was Swiffer-ing the hallway outside the room—was an accident.

According to the victim’s relatives:

• Ms. Boscarino often cleaned house at 2:30 a.m.
• She did not want to marry Schack, even though they had lived together for a considerable time and both had gone into considerable debt in their mutual pursuit of a luxury life style. Apparently she refused to marry him because her father (wisely) disapproved of Schack.
• Schack made numerous statements to them that he willfully shot the victim.
• Schack was a drug addict.

According to Schack:

• He has a condition that causes numbness in his fingers, which contributed to the accident. (So, why did he own such a weapon?)
• He loved Ms. Boscarino.

This is all weird. It makes no sense.

The apparently irrelevant fact that Schack was adopted also struck me as odd, because I had recently stumbled across a website that claimed (as of 2002) an extraordinarily high percentage of death-row inmates were also adopted.

I couldn’t verify the statistics cited on the website, so I won’t link to it here; but I did find some discussions of adoptee statistics that seem to support the idea that adoptees may have more developmental problems than average. Of course, I suspect that for every adoptee on death row, we could also find an adoptee who, like Steven Jobs, succeeded wildly.

But the raising of this issue in court trouble me. It seems to me—a non-lawyer—that the defense brought this out in an attempt to make the jury pity the man, but all it actually accomplished was to emphasize the defendant’s peculiar biography.

The Verdict

In the end, despite CNN’s attempt to gin up suspense in the Schack trial, the jury found him guilty of second-degree murder and the judge sentenced him to life in prison.

This trial surely falls under the heading of “Trials in which I would not want to be a juror.” The prosecution’s case was painful to hear: it consisted mainly of the victim’s family who hated the defendant and were clearly vindictive. One such witness actually “let slip” that Schack was a drug addict, after he had been instructed not to do so; then all the judge did was caution him not “to cause a mistrial.” Honestly, I think it’s “criminal” for a prosecutor to base a case on the opinions of a victim’s family.

Here’s the ultimate weirdness: the prosecution claimed the motive was not only life insurance but to retrieve a diamond engagement ring from her finger so he could sell it to pay for his defense.

The defense’s case was equally painful: Schack cried repeatedly, occasionally waved at people in the courtroom with a shy little smile, and testified weepily (something defense attorneys ought to warn their clients never to do—jurors do not appreciate it). The only emotion a defendant ought to exhibit is fear.

My verdict: Surely CNN could have found a trial to cover that involved some issue other than human strangeness—of which we are all guilty.

        

I subscribe to Google Alerts related to jury duty. Over the past few months I’ve collected a number of links from these alerts, which might interest those of you who—like me—are addicted to courtroom drama.

Juror Stress and Misconduct

Reports of the horrors and risks of jury duty are numerous. Here are a few particularly interesting ones.

• Minot, ND, murder trial: http://www.truveo.com/Murder-Trial-Jury-Duty-is-Difficult/id/72057615580291407 
• Boredom in Oregon: http://business.timesonline.co.uk/tol/business/law/article6386708.ece 
• California conflicted: http://www.miamiherald.com/2009/12/03/1364345/enduring-jury-duty-when-the-right.html 
• Sympathetic defendants: http://articles.lancasteronline.com/local/4/247548
• http://www2.ljworld.com/news/2010/jan/25/juror-who-committed-misconduct-jaeger-trial-wont-t/ 
• http://www.thenewstribune.com/2010/01/28/1047063/mistrial-declared-after-jurors.html 
• http://www.themeat.org/2010/02/11/on-jury-duty 
• Juror Journalism, juror’s profiting: http://www.jstor.org/pss/40239426 
• Fired jurors: http://www.allbusiness.com/legal/trial-procedure-jury-trial/13951735-1.html
• http://everythingoverrice.blogspot.com/2010/02/my-civic-duty.html

Involuntary Servitude

In addition to the above discussions of why a sane person might not want to be a juror are these related reports:

• Student jurors: http://www.mndaily.com/2009/12/07/courts-accommodate-student-jurors 
• Nevada public access to jury forms: http://www.lasvegassun.com/news/2009/dec/24/supreme-court-media-has-right-jury-questionnaires/ 

Jury Selection

Most people seem to find the jury-selection process unreasonable:

• http://www.gosanangelo.com/news/2009/dec/08/jury-selection-begins-in-eldorado-for-trial-of/
• http://missoulian.com/news/national/article_97cb8691-5052-5221-9d89-bf85fa2e9cf4.html 
• http://www.reddit.com/r/reddit.com/comments/ayh0g/why_is_it_legal_for_a_judge_or_prosecutor_to/

Bizarre Courtroom Behavior

• New York City, bail-jumping trial: http://zoonormous.wordpress.com/2008/05/14/my-crazy-first-stint-of-jury-duty/ 

Juries outside America

Juries in other countries play slightly different roles in a trial, but that doesn’t seem to change the jury experience very much:

• Spain: http://www.roundtownnews.co.uk/index.php?option=com_content&task=view&id=18398&Itemid=38 
• Canada: http://jmortonmusings.blogspot.com/2010/02/re-jury-vetting.html
• UK: http://www.guardian.co.uk/uk/2010/jan/26/juries-internet-justice
• UK: http://www.thisislondon.co.uk/standard/article-23806699-jurors-do-not-understand-legal-issues.do
• UK: http://www.telegraph.co.uk/comment/personal-view/7261668/I-find-the-jury-innocent-of-nearly-all-charges.html
• Hong Kong: https://lawlib.wlu.edu/works/434-1.pdf
• Juries and Junk Science
• http://scienceblogs.com/drugmonkey/2009/02/why_scientists_hate_jury_duty.php 
• http://juries.typepad.com/juries/2010/02/new-law-review-articles.html

Jury Books

Lawyers seem to be obsessed with understanding the way their fellow human beings make decisions:

• Secrets of the Jury Room: http://www.themonthly.com.au/books-julian-burnside-one-box-twelve-exposed-men-and-women-039secrets-jury-room039-malcolm-knox-91
• Psychology of jury instructions
• The Skeptical Juror

Jury-related websites

• http://juries.typepad.com/juries/
• http://juryexperiences.org/
• http://www.solicitr.com/about-2/ 
• Alameda County Video Overview: http://www.cccba.org/comm/jury.pdf 

The following article caught my attention, because in Cook County, IL, where I live, grand jurors are selected at random from a pool, just like petit jurors:

Grand Jury Applications: http://www.insidebayarea.com/crime-courts/ci_14374440?source=rss

        

Blogging every morning helps me activate the language center in my brain. It also often brings me into contact with the PC language cops, compulsive editors, and what I suppose could be called “special-interest watchdogs.” While these readers are generally critical of my words, their comments at least prove to me that someone “out there” is reading me. An added bonus is: I’m directly engaged in a conversation with my readers.

Sidebar: I hope I respond to everyone respectfully. If I inadvertently respond defensively, I apologize. Writing is truly a lonely life, and a full-time writer has few social interactions. It tends to make one testy, at best.

Blogging about trials also gives me an excuse to indulge my morbid curiosity about murder and my healthy curiosity about human language—at the same time. The more televised trials I watch, the more I’m convinced that courtroom rhetoric is the essence of the drama inherent in a trial.

Every trial is a battle or words. The words make the difference between innocence and guilt in every trial where the identity of the guilty party or the nature of the crime is in question.

Unfortunately, it’s a rare trial lawyer who understands this completely and deeply. Prosecutors tend to rely on what they consider to be emotional appeals and far-fetched metaphors to associate the defendant with the crime; defense attorneys tend to rely on the elusive concept of reasonable doubt. Jurors, I can assure you from personal experience, don’t need more emotion injected into a trial and can’t understand the concept of reasonable doubt because it’s meaningless.

Worse yet, the rhetoric most lawyers use in court is simply intellectually dishonest.

Chess Equilibrium

Recently I’ve become addicted to chess. I’m now reading chess theory, a topic a year ago I would have thought to be less interesting than watching paint dry. Now I can’t get enough of it.

What fascinates me about chess theory is that it’s identical to rhetorical theory: chess and rhetoric both are about maintaining a balance of power in a human transaction for as long as possible and then tipping the scale in favor of your side only when you know you have a sure way to success.

The rhetoric of chess and of the American adversarial system both are based on balance. The classical image of blind justice holding a scale is perfectly apt. In a trial the jury sits and watches the scale, first as it tips in the prosecution’s favor, then as it tips back toward equilibrium, if the opposing side puts on a good defense.

International Master Jeremy Silman, in his book The Reassess Your Chess Workbook: How to Master Chess Imbalances, says, “The correct way to play chess is to create an imbalance and try to build a situation in which it is favorable for you. . . . [A]n imbalance is not necessarily an advantage. It is simply a difference.”

What’s true of chess, I think, ought to be true of courtroom rhetoric.

Tipping the Scales with Words

In a trial, the only thing that juries have to rely on is words: lawyers’ statements, witness testimony, and the judge’s instructions. When physical evidence is sent into the jury deliberation room, all the jurors can do to interpret it is parse the words they heard in court about it.

Despite this, lawyers, witnesses, and judges don’t often speak clearly—and therefore forcefully—about the evidence, and consequently jurors have little to rely on during the jury deliberations.

In general, I suppose lawyers currently view the rhetorical problem in a courtroom as attack and counter-attack. The rhetoric is battle rhetoric—understandably, when a person’s life and liberty are at stake. However, a juror doesn’t want to sit silently by while a life-and-death struggle takes place before her eyes. The simple fact of having to contemplate a real crime is sufficiently emotional. A juror wants to hear rational arguments, facts, words that will point the way to a civilized conclusion to a dreadful situation.

Sidebar: Consider the trial of Raynella Dossett-Leath, for example. The prosecution side of the scale was that the victim was found dead with a singe bullet wound, but three bullets were fired; therefore it was murder. All things being equal, the defense would have presented a simple alibi case and then evidence of a possible third-party killer. But, in fact, there was an imbalance: there was strong evidence of suicide. However, the defense did not abandon its alibi case, thus tacitly agreeing that murder was a possibility. Evidence of suicide was a difference, which it failed to use to its advantage. While the defense attorneys were skillful orators, the substance of their rhetoric was battle, not balance (in my non-lawyer’s opinion).

If prosecutors wouldn’t overcharge defendants, the emotionalism in court would drop dramatically. If they stopped using inflammatory language in their opening and closing statements, jurors would feel more confident that their verdict would be acceptable to the community regardless of what it was.

If defense attorneys would focus on respectful cross-examination, they wouldn’t offend the jury quite so often.

Sidebar: In yesterday’s post I referred to the Andrade trial: Andrade was charged with murdering a transgender person, Angie Zapata. A watchdog corrected me about the issue of who insisted on referring to the victim as ‘she’ and that the defense offended the victim’s family members during cross-examination by referring to her as ‘he.’ Given what the defense was trying to achieve, that rhetoric was unwise. Not only did it likely rub the jury the wrong way, but the effect was to stress that Andrade had engaged in sexual activity with a biological male—when, it seemed to me, the defendant’s greatest fear was that in prison he would be subject to sexual assaults if it were known that he was (shall we say) AC/DC.

Most importantly, though, I feel a good defense is one that seeks to restore the balance. For every expert witness a prosecution presents, the defense should present two. For every investigative witness the prosecution puts on, the defense should put on at least one private investigator or former police officer to assess the police investigation. For every eye witness another eye witness; for every victim’s advocate or friend and family, another character witness for the defendant.

Edward Lasker, an American chess master of the past century, stressed that chess is a game of “all things being equal.” In chess, the player who moves first when all things are equal is the one who wins—white.

Essentially, “all things being equal” in a courtroom, too, the jury would have to find a defendant not guilty. That’s what the inarticulate phrase “beyond a reasonable doubt” is supposed to mean. Unfortunately, the prosecution always moves first; and this advantage is not—in fact—obviated rhetorically by permitting the defense to rebut the prosecution’s case by going second, when the prosecution is given the last word. Under such rules of conduct in court, the defense can never restore equilibrium.

        

The Economist recently previewed the soon-to-be-published DSM-V, the manual of the American Psychological Association (APA) that guides expert psychological witnesses in criminal trials.

Wisely, the article is titled, “That Way Madness Lies.”  I say “wisely” because the new DSM-V is likely to lead judges and trial lawyers down the primrose path to Hell.

American law is already schizo when it comes to all things mental. Lawyers and judges are taught that motive is irrelevant to crime, but intent to commit a crime is. Worse yet, they’re also taught that the defendant’s “mental state” at the time of the crime is relevant.

The logic of ignoring motive is that a crime is a crime, regardless of why a person decides to commit the act. For example, if a person engages in civil disobedience (as Elaine Clermont did), she may do so for altruistic motives, but nonetheless she commits a crime.

The logic of proving intent is that accidents can happen, and when a person doesn’t intend to commit a crime, then he is innocent. Of course, a jury must examine the evidence of intent to commit a crime and find it lacking in such a case. When a driver hits a child running across the road and kills her, for example, the jury must decide whether this homicide was committed recklessly (willfully) or was an accident. The key here is that there must be some concrete evidence of intent either to be reckless or to kill. If the driver throws away empty liquor bottles before a squad car responds to the scene, the jury might reasonably conclude—since it’s illegal to have open liquor bottles in a moving vehicle—that he was willfully reckless.

But the logic of determining a defendant’s mental state at the time of a crime eludes me. I don’t see how anyone could do this, unless she was psychic.

Innocent by Reason of Insanity

Even before the publication of the first DSM in 1952, judges informed juries that certain mental states make it impossible for a defendant to form intent: among these are not only mental illness but also mental impairment (intoxication, temporary insanity, sleepwalking, “split personality”).

Since 1993, when the Supreme Court declared (in Daubert v Merrel) that only expert witnesses whose opinions are approved by peer review, all expert witnesses who testify about a defendant’s mental state at the time of the crime must rely on the APA’s most recent edition of the DSM for their diagnoses.

To the courts, it doesn’t seem to matter that the legal definition of insanity was devised in England in 1843 (the McNaughton Rule), while the peer-reviewed DSM no longer recognizes “insanity” as a mental state.

DSM-V Changes

According to the Economist’s review of the DSM-V, several changes in the APA’s approved opinions include: designation of degrees of illness (which I suppose they call degrees of severity of a disorder) and reclassification of many syndromes as personality disorders and declassification of others.

For example, one highly controversial issue is “transgender disorder.” Rumors are that the APA is going to decide whether transgenderism is a disorder or simply a condition, and in either case whether only children or only adults are to be considered “disordered” under these circumstances.

It seems to me, a non-lawyer, the issue can have an impact in court, for example, in cases such as 2009’s trial of Allen Andrade for murdering a transgender person, Angie Zapata.  In that case the victim was generally referred to as female. Her behavior—quite correctly—was deemed irrelevant: no one wants juries to blame a victim. But, in my opinion, the defense was prevented from fully exploring the issue of premeditation and the defendant’s mental state,  which was central to the prosecution. In fact, the state charged Andrade with a hate crime and first-degree, premeditated murder.

So, if the DSM-V classifies certain gender-identity conditions as disorders, it seems to me, either the defense or the prosecution (or both) in future such cases could potentially call expert witnesses to “prove” that a defendant’s mental state at the time of a violent confrontation with a sex partner is a form of temporary insanity.

For example, what if a transgender person became involved with a person she deemed to be of the opposite sex. The first time they had sex, her partner discovered that she had male genitalia. An argument ensued, during which the transgender person struck out violently and killed her partner. Would her lawyer be able to claim she suffered from a DSM-V-classified personality disorder, which caused her to strike out under the delusion she was defending herself against a larger, stronger man? Or even that she was hallucinating about her own body? Or could a defendant in a hate-crime case plead insanity on the basis of a diagnosis that he was paranoid schizophrenic about his own gender identity?

On the other hand, if the DSM-V classifies certain gender-identity conditions as not a disorder, the impact on civil litigation could be equally great: Does health insurance have to cover a condition the scientific community considers to be normal, if rare? In such a case wouldn’t treatment be considered merely cosmetic? And if the DSM-V classifies these conditions as a disorder, then is the proper health-care domain an operating room or a psychologist’s office? And, will a federalized health-care system make one or the other of these treatments mandatory (the cheaper option, no doubt)?

Delusions vs. Hallucinations

Even today under the DSM-IV regime, a defendant usually has to be hallucinating, not simply delusional, in order for a lay jury to understand that he or she is legally insane. The “fake Rockefeller,” for example, was unable to convince a jury that he actually believed he was a Rockefeller. He was clearly delusional, though. He clearly thought he had a right to kidnap his daughter.

According to the Economist, in addition the DSM-V will require psychologists to assign a severity classification to all mental disorders, whether they involve hallucinations or delusions. How will a jury be able to decide if the defense’s expert opinion is correct (that a defendant has the most severe form of a disorder) or the prosecution’s (that a defendant has a less severe form)?

Honestly, no jury is competent to decide between dueling experts.

Blind Them with Science

It’s time the Supreme Court recognized that “peer-reviewed science” isn’t the same thing as fact.

The legal definition of insanity also needs to be rewritten, and a judge, not a jury, should decide when a defendant is insane. It wouldn’t be that much different from other judicial responsibilities. After all, judges decide when an elderly person is incompetent and needs a guardian. Judges also decide when a defendant is competent to stand trial. If a defendant wishes to plead innocent by reason of insanity, a judge should hear the expert witnesses’ opinions and choose among them.

The only legal impediment to this sane approach is that no one is able to plead guilty to a capital offense. By pleading insanity, a defendant in effect is pleading guilty, even though denying responsibility. (I understand why: some people are so crazy they repeatedly plead guilty to other people’s crimes.)

But if we abolish the death penalty, the problem goes away. And if we permit defendants to plead guilty to crimes for which the penalty is life imprisonment without parole, then we spare the public the extreme expense of trying obviously guilty, serial criminals (as Kansas was spared a trial of the B-T-K Killer).

        

A few weeks ago a Tennessee police officer, Ronald Killings, was acquitted of reckless homicide charges by a jury of his peers. The defense presented the events as a case of an officer discharging his duties confronted unexpectedly by a child who darted out in front of his car. And, had that been the whole story, I would have agreed that the prosecution was entirely wrong to have placed a police officer on trial for such an accident.

However, the judge prohibited the jury from hearing about charges that Mr. Killings destroyed evidence of open liquor bottles in his unmarked car and from hearing the nature of certain conversations in which he was engaged while speeding through a residential neighborhood.

The jury heard only that Mr. Killings was engaged in a personal cellphone conversation after he increased his speed to reach the scene of a police stakeout. In Tennessee, it’s legal to use a cellphone and drive. Apparently, there’s no requirement, either, for hands-free use, but Mr. Killings testified nonetheless that the cellphone was in his lap and fell on the floor of the car upon impact, even though an eyewitness saw him exit the car with a cellphone to his ear.

A February 16 article in Science News, by Bruce Bower (“Cell Phone Distraction while Driving Is a Two-way Street”) suggests that police drivers should think twice before they accelerate when conversing on their two-way radios, let alone their personal cellphones. According to the article, a researcher at the University of Illinois (psychologist Gary Dell) has shown that not only does cellphone use impair driving ability, but driving also impairs comprehension of cellphone conversations. Dr. Dell says, “although many drivers regard talking while cruising a straightaway as no harder than walking while chewing gum, ‘that intuition is incorrect.’”

During the study, Dr. Dell told stories to drivers on cellphones, including one about a robbery. When asked to repeat the story, drivers were able to relate as few as half of the facts correctly.

Given this study, perhaps Murfreesboro, TN, law enforcement will rethink its policies on personal cellphones in police cars.

If so, I hope it will also consider that Mr. Killings not only was talking on a cellphone while speeding through a residential neighborhood, but he was simultaneously conversing with a fellow officer: testimony at the trial was that an officer called for Mr. Killings’ assistance at a robbery stakeout while he was on his personal cellphone. If Dr. Dell’s study is correct, Mr. Killings likely did not fully comprehend the nature of the scene to which he was being called.

Imagine how many people’s lives might have been put at risk if he had reached the stakeout only half aware of what was happening there.

        

By a fortuitous coincidence I was reading B. M. Gills’ now-out-of-print Nursery Crimes (1986) when Amy Bishop’s sad history began to emerge in the news. It’s also a coincidence that the copyright of this mystery novel about a girl who murders several people was published in the same year in which Amy Bishop killed her brother, 1986.

The TV talking heads are all agog over Ms. Bishop’s insane string of crimes. At first, I thought the University of Alabama-Huntsville shooting was simply more proof of my contention that prosecutors ought not to be elected and most definitely ought not to be affiliated in any way with a political party: reports are that when Ms. Bishop shot her 18-year-old brother her mother was a local Democratic Party official and the local prosecutor was William Delahunt of Quincy, MA, now Democratic Representative in Congress.

But fiction is often more insightful than TV talking heads or bloggers: Nursery Crimes explains it all. When children of privilege (and that includes the middle class) kill, everyone rushes to protect them,  rather than society.

Sidebar: The key term is privilege. Race has nothing to do with it.

Gill’s Nursery Crimes

Gill’s plot is simple: In Britain during WW2, the family of an army bomber pilot (an officer) takes in two children from a bombed-out working-class family: “little Willy” (4) and “Dolly” (7). The officer’s daughter, “Zanny” (6) promptly pushes little Willy into the backyard goldfish pond and sits on his head until he drowns. Dolly sees it happen but wisely keeps her mouth shut. Zanny’s parents understand well that the pond was too shallow for even a 4-year-old to drown in, especially when two other children were there to pull him out, but they know the local constabulary will never suspect their child: not the progeny of long-time local landowners.

Zanny concludes from the way the local cops give her candy that what she did is fine—she’s special. The rules don’t apply to her the way they do to other children. She therefore commences to wreak havoc. She tries to kill Dolly by pushing her in front of a “lorry.” The driver swerves into a tree to avoid Dolly and dies in the ensuing horrible, fiery crash. And that’s just the beginning.

Zanny’s parents are scared. They don’t know how to “cure” her. They send her to a Catholic boarding school to get her out of their hair. There the priest who confesses her refuses to believe her confessions; the nuns think she looks like an angel and so must be one. The more horrific and overt her crimes become, the more the “establishment” rallies round her: they rationalize everything.

Amy Bishop’s Nursery Crime

Amy Bishop was 21 when she killed her brother, so it hardly qualifies as a nursery crime, but one can’t help but speculate that she likely killed a cat or two before she decided to do away with her brother. Psychotic behavior generally begins to emerge in late adolescence.

It’s difficult for a family to acknowledge that a loved one is crazy.

Sidebar: I use the word advisedly: psychologists may find the word offensive, but the alternatives are equally offensive in my opinion. The PC police object to “insane” and “mentally ill,” and the DSM doesn’t provide an appropriate adjective (“mentally disordered,” perhaps?).

The law doesn’t provide any help for such afflicted families. Children under 18 can be involuntarily committed to a mental hospital, but only the wealthiest families can afford to put a child in a private hospital, and many public hospitals are less than nurturing environments. (This is not an argument for public health care, because then all the hospitals would be less than nurturing, in my opinion.) After 18, the law requires hospitals to release mental patients if they wish to be released.

Sidebar: I’m a civil libertarian. I know how the law can be abused to incarcerate people. I simply think there must be a way to deal with the truly mentally ill so that they can’t hurt other people.

If an adult (such as a 21-year-old Amy Bishop) behaves bizarrely, all her family can do is seek a court order for a temporary hospitalization. In most states, to put a family member into a permanent guardianship, a family has to take him or her to court. Such a court order is rare accept when the troubled family member is elderly and has severe dementia (in other words, is a clear physical threat to himself or others).

The problem is compounded when the troubled individual is bright and well-educated. Many of us can’t distinguish between eccentricity in such a person and outright insanity.

Of course, you might say, there’s no reason to tolerate violence as eccentricity. I agree. But there’s madness that isn’t violent: paranoia, manipulative behavior, narcissism, inappropriate emotional responses to events, temporary amnesia, delusions, hallucinations. Few people are prepared to deal with these behaviors in children. We misinterpret them. And even if a parent noticed such behavior, there would be no one to turn to for help.

So, I understand why Amy Bishop’s parents and husband did nothing but deny there was a problem. I’m less understanding of the local constabulary, though—and completely appalled by prosecutors who indict selectively based on party affiliation.

Prosecutors ought to be apolitical—they should be appointed by an elected board (a county board, for instance, as are school district officials) based on credentials and perhaps experience in the local prosecutor’s office.

        

I inadvertently posted an incomplete entry just now.

        

When the jury in the TN trial of Ronald Killings delivered a verdict of not guilty, I believe they followed the judge's instructions, which included an admonition that they had to hold the prosecution to a heavy burden of proof and, if they had a reasonable doubt as to the defendant's guilt, they were required to find him not guilty.

It was the current justice system that made several mistakes, in my non-lawyers' opinion. These mistakes include:

• The state should never have prosecuted a police officer for reckless homicide as a consequence of his performing his duties. If the law enforcement agency by which he was employed could not adequately punish him for his mistakes (by firing him, denying him pension, etc.), then the state ought to have prosecuted him only on lesser charges.
• The state ought to have prosecuted him first on charges of destroying evidence. If the jury in that case found him guilty, or if he pled guilty, then the evidence of the two empty liquor bottles he allegedy threw away after the accident ought to have been presented to the jury. The eye witnesses, including the neighbor who testified she saw him "walk into the grass," ought to have been permitted to tell the jury exactly what she saw; the grandmother and neighbor who recovered the liquor bottles ought to have been permitted to testify; the investigators who located the liquor store and surveillance tapes ought to have testified; the evidence of the blood test ought to have been presented by the defense and the prosecution ought to have been permitted to cross-examine that evidence and to present rebuttal evidence questioning the validity of the test.
•     Sidebar: In most states, I believe, it is illegal for anyone to operate a moving vehicle with open liquor bottles inside.
• The state ought to have presented more-detailed information about sheriff department protocols and procedures concerning cellphone use in vehicles speeding to a crime scene; if the department's standards and procedures permit the type of use that the defendant engaged in, then the jury would have been instructed not to hold the personal cellphone calls against the defendant, but the citizenry would at least know that their sheriff has shoddy procedures.
•     Sidebar: It's difficult for me to believe that once an officer is authorized to speed to a crime scene without lights or sirens, he is also authorized to continue a personal phone conversation.
• The state ought to have presented more-detailed information about standards and procedures of behavior when an officer is involved in an accident involving bodily injury; any deviations from these standards should have been clearly explained to the jury.
• The state ought to have been given an opportunity to present the autopsy evidence, because the autopsy might have given the jury additional information about the speed at which the car was traveling.

The system is what disturbs me: In the Killings case it looks to me as if everything was done to protect the police officer involved in a fatal accident and very little was done to insure that in the future the citizens were being adequately protected. The system managed to schedule the two cases so that key evidence in the reckless homicide trial was not available, because it had yet to be proven to be true. The system managed to let the county medical examiner avoid testifying against a fellow county employee. The system even managed to over-charge the defendant, apparently to assuage community anger, and then not to present a good case for the charges.

And, ultimately, a jury from another jurisdiction was called up to hear a tragic case; they did not hear all the facts. The more I look at the jury system, the more I think things are way out of whack. Elected, political prosecutors only prosecute cases that make headlines; they over-charge those cases; they try to avoid grand-juries and instead throw the onerous responsibility onto petit juries; the rules of evidence have become increasingly complex and now make little sense; juries aren't prepared for the responsibilities thrust on them.

I'm especially concerned when criminal trials involve police officers. Police officers carry weapons and are authorized to use them against their fellow citizens; police officers are authorized to travel at high speeds on busy, residential streets; police officers are authorized to draw blood for tests and collect other types of evidence. In all these activities, we, the people, have no choice but to trust them. The problem is that police are only human; they not only make mistakes, they also sometimes do things to protect their own interests when they shouldn't. 

        

Brenda Carneal, grandmother of the police sergeant’s victim, told CNN’s In Session Ryan Smith that defendant Ron Killings lied on the stand when he testified in his own defense today. She also said she forgave him, because she understood that she had to if she wanted to get on with her own life. Her wisdom is vast. I wish all crime victims would understand that the justice system isn’t about vengeance.

But Ms. Carneal also said she wished Sgt. Killings would admit what he had done, and that her granddaughter was a “child he’s treating like nothing.” That’s exactly what I thought, too. In fact, that’s how the whole State of Tennessee is treating this child victim.

What I Heard—It Isn’t What the Killings Jury Heard

Ms. Caneal was a witness to the incident. She saw the officer throw two whiskey bottles away. She informed a responding officer who, she claims, told her, “Get your ass across the street or I’ll arrest you.”

She isn’t testifying in this trial, because the State has decided it would violate the officer’s rights if the jury knew what he had done as soon as he got out of the car after the accident. (Compare this with the Trooper Higbee trial in which the victims’ grandfather was permitted to testify about what the responding officers said to him. What’s the difference? IMHO, the only difference was the gender and race of the grandparent.)

• Sidebar: Ms. Carneal later donned rubber gloves and retrieved the two liquor bottles. With them she found a receipt, which she gave to her family’s lawyer. The receipt proved that Killings had purchased the liquor a few hours earlier. They apparently retrieved surveillance videos from the liquor store, which showed Killings was the buyer. OK: So, State of Tennessee, explain to me why this isn’t relevant to a charge of reckless homicide?

The State also, apparently, has decided that the local medical examiner doesn’t need to bother to testify against the officer.

The State also, apparently, has decided that they don’t wish to reprimand or demote an officer who was speeding to a crime scene while talking on his personal cell phone with a friend, another officer.

The Defendant Testi-lies

As I watched Killings try to convince the jury he was genuinely distraught at the child’s death, I thought about the testimony of Trooper Higbee, whose sorrow was so intense that he actually expressed his regrets to the victims’ mother who was sitting in the courtroom. You could tell he could barely choke back the tears.

Killings, though, let the tears rip, and he didn’t say a single word to the victim’s family.

Among the allegedly callous behavior Killings sought to justify on the stand was his failure to render any aid to the child other than to put a coat over her torso. According to him, "I didn’t want to do any CPR, because I knew she had some damage.” Hmm. Is he sure it wasn’t because he had alcohol on his breath? I realize he meant he didn’t pound on her chest, but you can give artificial respiration without causing any further “damage.”

The jury is the finder of fact: In part that means they can judge the sincerity of tears. If I were on the Killings jury, I would try my best to assume his tears were real—but I’m afraid I’d have some reasonable doubts.

The greatest doubt of his guilt, as far as I’m concerned, came from a defense witness who saw the child crouch in a sprinter’ stance before she darted out into the road, almost as if she was trying to race the car.

Unfortunately, the prosecutor’s cross-examination of this witness was ghastly. He ought to have called her as a state’s witness, and rather than trying to discredit her memory, he ought to have asked if she saw Killings “walk into the grass, too.”

The problem for this jury is the same problem all juries have: no one tells them what really happened. There’s a good chance this jury will find Killings not guilty because of reasonable doubt. But I am absolutely certain that when they learn about the liquor bottles, they’re going to be furious.

        

Yesterday in the trial of TN police officer Ronald Killings the prosecution had to call a witness to the stand to explain to the judge why the state’s medical examiner was not going to honor the subpoena to appear in court as scheduled. Incredible!

Sidebar: Yesterday I expressed an opinion that the jury will find it hard not to wonder whether an African American child is likely to have been treated with as much respect as a white victim would have been. Since medical examiners are part of the justice system, I’m afraid that this ME’s contempt of the trial may convince the jury that this victim is not taken very seriously.

Without CNN’s In Session cameras in that courtroom, the taxpayers of Tennessee would have no idea they’re paying the salary of a medical examiner who ignores subpoenas in order to visit his personal physician. If you or I ignored a subpoena—or even a jury summons—we would promptly land in jail on contempt of court.

Accident Reconstruction

After In Session went off the air, CNN continued to stream the trial over the Internet. Toward the end of the day, a TN state accident reconstruction expert testified about the data in the black box from Killings’ vehicle. Again, it was a moment reminiscent of the NJ State Trooper Higbee trial—but with one big difference: this time it was the prosecution’s expert who understood how to explain complex data to a jury. The upshot of the expert’s testimony is that Killings was traveling at a very high speed.

Undoubtedly the defense will argue that Killings was traveling at a speed appropriate for an officer responding to the scene of a crime. We can only hope the prosecution can explain to the jury that it was not an emergency: he was responding to a call for assistance at a place where another officer had recovered stolen property. Presumably the property did not have legs, though.

Sidebar: It turned out that the property did have legs. Another officer on a stakeout observed several suspects removing stolen property from a home in the neighborhood.

Lip Service

In addition, Killings was speeding with his personal cell phone in his hand. Yesterday the prosecution called to the stand the person who was on the other end of the call. I’m not sure what her relationship with Killings was, because the defense objected to just about every question she was asked on direct. She was a young, very attractive white woman, and her phone records show she often spoke to Killings several times a day. All we know for sure about the relevant conversation was the way it ended. According to the young woman, he suddenly said, “Oh, f---.” Then the line went dead. (The prosecution wasn’t even able to tell the jury that the call was not in the line of duty.)

The Juror Wants to Ask a Question

After one of the breaks in the trial, the judge spoke to the jury to remind them that he had informed them at the beginning that he would not permit jury questions. Apparently one of the jurors had a question he urgently wanted to ask. As I said yesterday, I’m sure after this trial the jury is going to be angry when they find out what they weren’t told.

I can guess what question the juror is longing to ask: What did Killings do when he “walked into the grass.” (It might be, “What was he talking about with the foxy lady?” but I believe we can all imagine what it was.)

At some point, every judge tells the jury they are “not to speculate” about information that’s withheld from them. But this is impossible for any human being with a functioning frontal lobe.

Furthermore, it isn’t “speculation” to discuss the evidence during deliberations: that’s what deliberations are all about.

In the Killings trial an alert juror will already (during the prosecution’s case) have heard that the first thing Killings did when he got out of his car after the impact with the child’s body was to walk into the grass.

The juror will already have heard a reading of Killings’ first interview in the police station, when he said he was worried about the open trunk of the car because of what was stored in it. He made a big point of stressing that the trunk held SWAT equipment—and he wasn’t worried about anyone at the scene taking it or anything—but he was worried about it.

The jurors are entitled to express an opinion that unless he went into the grass to vomit, then it was not the right thing to do first. And the jurors are entitled to express an opinion that his explanation for his odd behavior at the scene (worries about the contents of his trunk) was also inappropriate for an officer at an accident scene. It sounds to me like an example of what most prosecutors like to call “consciousness of guilt.”

 

        

In the TN trial of police-officer Ronald Killing, the issue of his attempting to destroy evidence after the accident will not be raised before the jury, because another indictment in that matter is pending. Unfortunately for justice, the evidence of which he stands accused of destroying is evidence of possible alcohol use in his police vehicle.

If Killings’ had been a private citizen at the time of the incident, I wonder if he would have been immune from charges of drunk driving?

According to CNN’s In Session commentators, Killings’ blood was tested two hours after the incident, and he was found to be completely alcohol-free. Even so, apparently a witness saw him throw a bottle or two into the grass near the scene, and at least one bottle was recovered.

A forensic pathologist on In Session, Richard Saferstein, said that blood tests can have a small margin of error but never show zero alcohol when a suspect has consumed alcohol within two hours of the test. Apparently the lawyers on CNN thought that was proof-positive Killings had not been drinking.

Of course, I am not a lawyer, and I guess I have a very devious mind: I immediately wondered if it would be possible for one cop to draw another cop’s blood in such a way as to falsify the results, or if it would be possible for one cop to supply blood to substitute for another’s, or if it would be possible for a cop to keep a vial of his alcohol-free blood around for use in an emergency.

It didn’t take much research to convince me that any of these can easily happen.

Results of Blood Tests

An Arizona attorney specializing in DUI defense, Edward Loss, writes in “Blood Test Issues” that actually the collection of blood-alcohol samples is very complicated and subject to error. As I understand his article (and my understanding is probably very imperfect), the following may invalidate a blood test:

• The alcohol or antiseptic used to clean the skin may cause a false positive.
• There are two types of alcohol tests, one of which cannot measure the parts per million of alcohol, only the presence or absence of alcohol. The process used in such a test can artificially increase the percentage of alcohol in the blood by reducing the volume.
• The police use a NIK kit to draw blood for DUI forensics, which collects the blood in a way to avoid the above problems—but the kit can be misused.

The problem, of course, is that police officers are often the ones to draw the suspect’s blood.

Chain of Custody Problems

I wonder: has there ever been a DUI case in which the prosecution questioned whether the blood that was tested was also proven to be the suspect’s blood? In other words, in the Killings case can we be sure the blood was Killings’? If a DNA test proved it was his blood, can we be sure it was drawn the night of the accident?

In the normal course of a DUI arrest, the chain of custody of the blood sample is thoroughly documented. By the time the test results reach court, the only question is how much alcohol was in the suspect’s blood at the time of his arrest. In most trials, it’s inconceivable that the cops would try to substitute alcohol-free blood for alcohol-laden blood (unless the suspect was a politician, I suppose).

But in the Killings case, the cops had every reason to want to scrub the suspect’s blood of alcohol.

Killings and “Phlebo-Cops”

How do we know when a cop’s blood test is properly conducted? If a police department is dishonest, there’s no way to tell. A dishonest cop could obtain a NIK kit and could preserve a vial of alcohol-free blood in the office refrigerator or in a cooler in the trunk of his car right beside his beer bottles. Dishonest cops could even draw a fellow cop’s blood after an incident in place of the suspect.

Sidebar: I’m not sure, but it looks to me as if a “non-government” customer can order products from a forensics supply company, so long as they agree not to export the material outside of this country. If this is so, then even a mystery novelist could obtain a NIK kit and keep a vial of her alcohol-free blood in her kitchen refrigerator. I haven’t tested this hypothesis, but it would be something to consider if I didn’t feel faint when someone draws my  blood. Imagine the plot possibilities. I’m interested, too, in document examination kits; my Ph. D. is in a technique called textual criticism, which aims to analyze and identify historical manuscripts. I also found some wonderful document examination kits, which I might—in fact—try to order.

In the Killings reckless homicide trial, we will never hear testimony about any of these issues. If the prosecution intends to question the blood test, it will have to be during the trial on the destruction of evidence (liquor bottles from the officer’s car).

I’m not particularly hopeful that the truth will ever come out: the prosecutor in the reckless homicide case is having difficulty formulating the simplest questions about the accident. For example, he was unable to figure out how to ask an eye witness whether a police report made at the scene improperly characterized her words:

“Did the officer’s report, which states that you saw the child cross the street, correctly describe what you actually said to him, yes or no?”

        

CNN’s In Session is currently covering yet another TN trial of yet another police officer for reckless homicide (TN v Ronald Killings) of 11-year-old Lakeisha White.

Sidebar: I hope we won’t see the Serial ME in this trial. I have no doubt, if she does testify, she will deduce from the injuries to the victim that the manner of death was reckless homicide, not simply homicide.

In some respects the issues in this trial resemble those in last year’s NJ trial of State Trooper Robert Higbee, but in some important respects it’s very different. Among the important differences, which are likely to impact the jury’s verdict, are: 1) possible police misconduct in the investigation, 2) possible alcohol consumption by Det. Sgt. Killings and subsequent attempts to cover up the evidence (which the jury may not hear about) and failure to follow procedure, 3) the victim was a pedestrian, not in another vehicle, and 4) the race of both the victim and the officer (both were African American)

Let’s get race out of the way: it ought not to affect the jury’s verdict, but I’m not sure how any juror of any race could not take it into account. Every black victim of a police incident inevitably will raise questions in everyone’s mind: did the system treat the victim with the same respect it would have afforded a white victim?

Sidebar: An eye witness testified today that she saw the little girl’s body struck. She gestured in an arc and said it “floated” in the air. “It was like a rainbow, but the colors were her clothes.” A very sad memorial of a child’s death.

But the most important difference from the Trooper Higbee incident, in my non-lawyer’s opinion, is that the officer in this case was not operating by the book as he sped toward a crime scene, not before, during, or after his vehicle struck the child who was crossing the road. In the military I believe his behavior would have been called “dereliction of duty’; he would have been court-martialled. I feel a CID type of investigation in a police department should also find he violated police procedure.

Police Misconduct

Every citizen is justifiably outraged by police thuggery. Law enforcement authorities have to be trusted to protect us, not to harm us, or the legs will be kicked out from under our liberty. (It’s one of those Kantian categorical imperatives.)

Sidebar: By all accounts, Drew Peterson wouldn’t have been able to get away with abusing his wives, let alone murdering them, if he hadn’t been a police officer and if his colleagues hadn’t repeatedly covered up complaints against him. Peterson was a police thug.

In the Killings case, according to CNN, Officer Killings has been separately indicted for throwing away two liquor bottles he had in his car when he struck the child. The judge has excluded references to this fact in the current trial. (After the verdict, when the jury learns this, they’re going to be very, very angry that this was kept from them.)

In addition, Officer Killings was talking on his cell phone (not his police radio) while driving at high speed in the dark and apparently through a residential neighborhood. This alone—I believe—will convince the jury he was not in the act of performing his duties when he struck the child. This is an arrogant, reckless disregard of public safety. (Here in Illinois it’s illegal to talk on your cell phone, even if you’re stopped at a stop sign.)

Police Investigations

According to CNN, the prosecution is questioning the police investigation of the incident (ironically, since usually it’s the defense that does this). IMHO, police investigative techniques should be scrutinized in each and every crime. Not only should the pseudo-scientific CSI evidence be torn to shreds, but the motives of the investigators must be scrutinized.

In the Killings case, the prosecution seems to be hinting at a serious police cover-up. It reminds me of the Trooper Higbee case, in which the prosecution hinted that the officers who responded to the scene lied to the victims’ grandparents.

The difference between the two trials in this regard is the judge: in this trial the judge excluded the most important evidence of police cover-up (the issue of the liquor bottles); in the Higbee trial the judge did not exclude the testimony of the grandfather.

Admissible Evidence

I bet if you asked every former juror what frustrated them the most about their jury experience, it would be “what they didn’t tell us.”

The “rules of evidence” generally aren’t written by legislators (generally, but not always); the rules of evidence are established by common law and case law (the accumulation of centuries of courtroom practices). In America, a law-school textbook has become the Bible of evidence, even for the U. S. Supreme Court: John Henry Wigmore’s Evidence.

Our courts give incredible power to the lowliest, most-incompetent of judges—the power to admit or exclude evidence. By admitting junk science and innuendo into evidence, a judge can insure a conviction. By excluding exculpatory evidence, a judge can insure a conviction.

Sidebar: I’m not saying the judge in the Killings case is incompetent. In fact, this may be a case in which the law prohibits him from admitting evidence of a separate indictment. However, the jury is still suffering from a deficit of information. Why didn’t the state try Killings first on the minor charges?

Although the jury is called “the finder of fact,” the only facts they can find are ones the judge admits. So, it’s possible the Killings jury may find that—like Trooper Higbee—he was doing his duty. That would be a great injustice: he may have been drinking on duty, and his fellow cops may have helped him cover up this fact.

        

Every murder mystery is fundamentally a “whodunit.” It’s the same with most murder trials, too; the difference between fiction and fact is that a fictional plot ends with “who” while a trial begins with “who.”

In both fiction and fact, most other questions are answered in the course of the drama: what, when, and how. Most, but not all: the question of “why” is always answered in fiction but almost never in court.

Look up “motive in criminal law,” and you will discover “why”: motive is traditionally not considered one of the elements of a crime. (The elements are things such as intent, state of mind, prohibited acts.) The law doesn’t care why you do something, only “if” you did it and what you were thinking at the time.

The problem, in my opinion (and I am not a lawyer), is that jurors are human, but the law is not; jurors want to know “why?”

The Trials of Raynella Dossett-Leath

I plan to revise and enhance some of my posts on the trial of Raynella Dossett-Leath, the Tennessee nurse convicted of killing her second husband and who now faces another trial later this year for murdering her first husband. Before I repost, I want to be sure I know all the facts the jury who convicted her knew.

As I reexamine my opinions on this case, I find the question of “why” is what puzzles me the most (incidentally, “why” puzzled me during my own jury experience, too.)

I wonder why a woman would kill both her husbands when all she needed to do was divorce them.

Why?

As I understand it, from news reports and from my memory of the televised first trial of Ms. Dossett-Leath, the state posed at least two motives. I believe I recall the prosecution claimed the marriage was rocky and the deceased had threatened to change his will so his cancer-stricken mother would be cared for if he died before she did (a bizarre concern in itself).

At the time I heard this (in early 2009) I wondered how the jury had received these motives. Surely a rocky marriage isn’t sufficient motive for murder, or else almost every marriage on earth would end in murder shortly after the first argument. Disputes over inheritance, of course, have led to violence since the beginning of time.

The Will

In the Dossett-Leath case, the issue of valid wills is centermost. It’s very complicated, and I need to do some serious research; but jurors in both trials must have arrived in court with some knowledge of Tennessee inheritance law. (If not, I recommend they look into it, because those laws can come back to bite them in their own butts.)

In the U.S., marriage affects inheritance, as well as divorce; property is owned by spouses under one of two legal structures, either community property or joint property. Less than a dozen of the fifty states are community property states. Tennessee is not one of them.

In joint property states, all property belongs equally to both spouses; upon dissolution of a marriage or death, all property is either divided equally or is inherited by the surviving spouse. This is the law of Tennessee, where the state claimed that Ms. Dossett-Leath murdered her husband so that nothing would go to his mother or to his daughter by a prior marriage.

Think about this. Does it make sense to you as a motive? (And, remember, the state did not need to prove a motive to convict this woman.)

First, her husband was not terminally ill; she had no reason to fear he would die before his mother.

Second, if Ms. Dossett-Leath had divorced her husband, the divorce settlement would have allocated their property equally between them, and then he could have willed all of his share to his mother or his daughter, and she would not have had to worry that he would give away what was rightfully hers.

Third, when they married, Ms. Dossett-Leath’s property was more valuable than his. She did not marry him for his money; if anything, it would have been the other way around. They married under a prenuptial agreement which established a sort of community-property inheritance. After several years of marriage, they legally dissolved that prenuptial agreement and adopted the joint-property form of inheritance.

Fourth, in a joint-property state, if one spouse attempts to control his estate through a clause in a will, which disinherits the other spouse, even partly, the surviving spouse can dispute the validity of that clause after her husband dies; if the probate court isn’t biased, it must side with the surviving spouse and invalidate that clause. (FYI: As I understand it, the probate court in this case did not side with the surviving spouse, in part because she was under indictment—although presumed innocent at the time.) It seems that the courts declared that the deceased’s will was presumed destroyed and reverted to the terms of a will he wrote before he married the now-convicted wife.

I’m not a lawyer, but I’ve made a point of understanding probate law in my state. Based on my limited understanding of probate law in general, it seems to me that Ms. Dossett-Leath was among the least likely people to want her husband dead because of the family’s inheritance disputes.

 

        

CNN’s In Session is currently broadcasting a trial from Utah involving the tragic death of an Indian child. This broadcast comes at a time when I’m editing my manuscript, Chalk Ghost—and right after I deleted a long passage from it on the way our laws treat Indian mothers. I deleted the passage for two reasons, one of which I now must revisit: 1) I was afraid it was too preachy, and 2) I was afraid I was describing something that was no longer true.

Alas, Indian mothers seem to be no better off in 2010 than they were when my father was a child of an Indian mother about 80 years ago.

Idaho v Aragon

On Christmas Day, a man named Robert Aragon was caught in a blizzard near Shoshone, Idaho, with his two children while driving them to see their Indian mother, JoLeta Jenks (I don’t know what her tribal affiliation is, but there are several reservations in Idaho). The children left the vehicle and tried to walk nine miles, while their father remained in it. Eventually, the girl’s body was found frozen to death on the side of the road; the boy was found in a wayside rest stop, hypothermic but alive.

From her testimony, it is clear that Ms. Jenks is a bright woman; from his actions it’s equally clear Mr. Aragon is not bright (even his employer testified that he isn’t the brightest bulb). But despite her intelligence, Ms. Jenks was unable to make a living and became homeless several years after she split up with Mr. Aragon, the defendat. Mr. Aragon, despite his lack of intelligence, was apparently able to make a good enough living that he was able to provide the two children with a home in which they had separate bedrooms, TVs, and were well fed—according to Ms. Jenks. That is why—the only reason why—she sent them to live away from her.

Idaho is not one of the states covered by Public Law 280: this means the state does not have complete authority in cases involving Indian families. If the father had been an Indian, tribal law might have taken control. Perhaps the tribe would have been able to help Ms. Jenks provide her children with a home. However, Mr. Aragon is white, and therefore, I suppose, state law governs the situation—for all the good it did any of them.

The man did neglect and harm the children by letting them leave the vehicle in a blizzard; for that I suppose he should be punished, even though Ms. Jenks acknowledges that all he was guilty of was making a “bad decision.” (I’m not sure any good could have come of sending this man to prison, though; his son is still in his custody, and it isn’t clear that he has any other home to go to. What could the state do? Put him in foster care?)

Sidebar: The In Session commentators doesn't understand the not guilty verdict (as is often the case). They found him not guilty of crimes; they did not find him to be without blame, and they knew that the only person who would suffer if his father was convicted was his son. Frankly, what was the state of Idaho thinking?

What I don’t understand is why the Bureau of Indian Affairs isn’t also on trial here (any more than I understand why the Department of the Interior thinks that paying “Indian Country” $3 billion in some sort of “reparations” for the mismanagement of the BIA will do anything to help women like Ms. Jenks). (See Corbell v Salazar Settlement.)

The federal government is responsible for the plight in which most Indian mothers and Indian children find themselves today.

 

        

The problem with writing is: if you write badly, you are sure to be misunderstood; even if you write well, you can’t be sure anyone will understand you either

I’m guilty of some very bad writing, recently.

In the Dossett-Leath case, I expressed opinions about individuals without knowing all the facts. I used them as characters in a fiction that has rattled around in my mind for a long time. So, I want to apologize to everyone. Please understand me: I do not think anyone murdered Mr. Leath; I feel—based on what little I know—that he committed suicide.

I also feel there are strong parallels—and sharp contrasts—with another recent Tennessee case: that of Sharron Chason. In both instances, wives were charged with murdering their husbands after non-prescribed drugs were found in their husbands’ blood. Both women were nurses—so the implication was that they had access to such drugs.

In both cases, friends and family members of the deceased testified against the wives: their testimony was largely innuendo and impressions of the defendants’ guilty behavior. In the Dossett-Leath trial, the widow’s desire for cremation was used against her; in the Chason trial, the widow’s desire to remove life support was used against her.

In my experience, in-laws do not always like each other. In my experience, friends and family are often vitriolic against one another after someone dies. In my experience, survivors often want to spare their loved ones’ bodies further ravages by choosing cremation and choosing to stop life-support. In my experience, after a loved one dies, you act angry, secretive, combative, nasty. It isn’t evidence of murder.

In my experience, children of a deceased parent want to inherit every last scrap and don’t think it’s right that anyone else should share in the inheritance. This is especially true when the parent was divorced and remarried.

There is a big difference in the Dossett-Leath and Chason cases, though: the death certificates. In the Chason case the ME found the cause of death to be a drug reaction or overdose but the manner of death to be “undetermined.” He was honest enough to say that while the drug’s presence was suspicious (because it was not prescribed) the manner of death could have been accidental, suicide, or homicide.

In the Dossett-Leath case, the ME declared the manner of death to be homicide without waiting to gather all the facts and by ignoring other alternatives. believe that the ME’s pronouncement of homicide initiated an avalanche: everyone else involved started pointing fingers at each other, especially the widow and her stepdaughter. Thus began an angry inheritance dispute, which ended in two indictments.

I do not have any independent evidence to support my beliefs. All I’ve learned comes from the Internet and TV, and I may have misread or misheard everything.

I lay no blame with any private parties in either of these cases—the Chason and the Dossett-Leath cases.

But I do think they illustrate what’s wrong with electing prosecutors. The justice system includes not only the police and courts, it includes the states’ attorneys. Americans ought to be able to expect unbiased prosecutions. Crime is crime, no matter which political party is in power in a county or state. In both cases, I believe we saw the effects of politicizing prosecutors and medical examiners (and why coroners are a very bad idea).

        

BIG, BIG DISCLAIMER: I have not conducted an independent investigation into the Dossett-Leath trial. I have no qualifications to do any such thing. I am a mystery writer. I follow trials as research for my fiction. I have said before that this case is complex enough to make a great mystery plot.

MOST IMPORTANTLY, I AM NOT SUGGESTING THAT ANYONE INVOLVED INTENTIONALLY "FRAMED" MS. DOSSETT-LEATH.

What I suggested in an earlier article is my opinion (unfounded) that some people may have been strongly biased against Ms. Dosset-Leath for personal reasons. These people ought to have recused themselves from any involvement in the case, long before she was indicted, let alone convicted.

In addition, I am strongly opposed to the election of prosecutors for this reason. I am also strongly opposed to the way in which judges are chosen.

A few days ago I posted on police misconduct, and most people who read my post seemed to agree with me. My point here is that the state's attorney function in every state--not only TN--needs to be de-politicized ASAP for exactly the same reasons that police thuggery can't be condoned. Many prosecutors use the role as a stepping stone to statewide office; that causes them (consciously or unconsciously) to trumpet high-profile prosecutions.

Finally, I do not believe that any family member in this case was involved in homicide--including Ms. Dossett-Leath; I believe this was a tragic suicide, which family members can't bring themselves to accept.

And I know from sad personal experience, that where there's a will, there's someone who's unhappy with the way the estate is distributed--every time there's a death and a will. People are greedy, we all are, we can't help it, and most of an estate is also valuable to descendants for non-financial reasons. Everybody wants granny's engagement ring, even its just glass.

Finally, I also have personal experience with in-law disputes. I see in this case a great deal of such a dispute. The deceased's daughter, in my opinion, was behaving the way I have seen children of divorce in my family behave toward second wives. It's probably natural and probably justified. All I wanted to say about this daughter was that her sorrow and anger led her, in my opinion, to pursue the prosecution of her stepmother. The authorities were eager to take her side, and that isn't fair. The authorities were not being fair.

I apologize to everyone involved in this tragedy, and I'm going to take down the offending posts immediately.

        

Scientific evidence is rarely presented well in court. More often, highly technical data is presented in a “dumbed-down” form that lawyers seem to think jurors require. But the biggest problem is that expert witnesses for the prosecution are presumed competent and trustworthy.

Unfortunately, scientists like the rest of us, sometimes make mistakes, are careless, have biases, or are just plain incompetent. Medical examiners are among the expert witnesses most prone to these failings, in my non-lawyer, non expert opinion.

A Medical Examiner Who Works Backwards

The ME who conducted the autopsies in three televised trials exemplifies for me the problems of scientific presentations in court. I think of her as the Serial ME—one homicide after another. She never lets a gunshot death pass for anything but first-degree murder.

The Serial ME turns up on CNN’s In Session frequently, partly because she works in Tennessee, which is among the few states to permit cameras in courtrooms, and partly because she’s photogenic. Unfortunately, she doesn’t “put on a good show,” in my opinion. And she would not appear on TV if it weren’t for the frequency with which she deduces first-degree murder in gunshot deaths.

Trial of John Collett

In 2009 John Collett was charged with murder for shooting an angry, gun-toting trespasser who threatened his parents and him as they stood on their porch. The Serial ME declared the death to be a homicide and testified dramatically with the use of a mannequin, dowels, and the four-wheeler the deceased had driven onto Mr. Collett’s property.

Death by multiple gunshot wounds, of course, must always be investigated as a possible homicide. The circumstances in the Collett case clearly indicated it was not a suicide, and since a hominid must usually pull the trigger on a gun in order for a bullet to emerge from the barrel and find its way into another hominid’s body, a finding of homicide as the manner of death was reasonable.

The medical examiner went beyond this conclusion in her testimony, however. And this is what I find fault with (and apparently the jury did, too, because they found Mr. Collett not guilty). She claimed to prove that the weapon the trespasser waved in Mr. Collett’s face was pointed barrel-to-the-sky when he was shot—based on the trajectory of the bullets in the body. In other words, she testified that she knew for a fact the death was first-degree murder.

In any gunshot death the trajectory of the bullets is an important element of the autopsy evidence. In the Collett trial, the Serial ME demonstrated for the jury the trajectory of several bullets (five, I think) by inserting long dowels into a mannequin that was seated in the four-wheeler (which supposedly wasn’t in itself admitted into evidence). Of course, the path of a bullet through a body is only part of the evidence needed to show the bullet’s trajectory, because a body can be in many positions when the bullet enters it.

Sidebar: How a judge could permit a four-wheeler into a trial court without admitting it into evidence is a mystery to this mystery writer. I would hope that in the event of a conviction the appeals court would have overturned the verdict based on this error alone.

One of the bullets, according to the Serial ME, entered the deceased’s right arm (which was holding a fairly heavy weapon) at the elbow and then passed through the elbow and reentered the upper arm. She also testified there was no way this trajectory could have occurred unless the arm was raised above the head (in other words, she thought she had proved the killing was not in self-defense).

The ME made several assumptions about the shooting, which an autopsy could not possibly suggest, let alone prove.

For one thing, she assumed that one bullet struck the body while the man was still seated on the four-wheeler. That could only follow from an assumption that the bullet was the first one fired. Even if the body was still seated, the trajectory could have resulted from a bullet impacting as the man swung his gun around toward Mr. Collett: imagine holding your arm roughly at waist height with your forearm across your body, bent, and with your elbow at an angle perpendicular to Mr. Collet’s gun barrel.

She also testified that one bullet could only have been fired when the body was already on the ground. Again, she made unjustified assumptions about the order in which all the bullets were fired.

There’s no way an ME can tell the order of most gunshots based solely on the path of the bullets through the body. I suppose some such conclusions can be drawn in some circumstances. If paths cross inside the body or if two bullets follow roughly the same path, it should be possible to conclude that one was fired before the other. But in this case, there were more than two bullets and more than two paths. Blood flow might also prove that a bullet was fired after death, but that was not what happened in this case.

Finally, the Serial ME testified to the rapidity of fire. She concluded that it took a very long time for all the bullets to be fired—implying that each bullet was fired deliberately and with an intent to kill. Yet the gun in question was a semi-automatic pistol that fires rapidly. How could an ME possibly conclude anything about the rapidity of fire in any case?

It was as if the Serial ME wanted to prove the defendant guilty of first degree murder. That’s the prosecution’s job, not an ME’s.

Trial of Eric McLean

Like John Collett, Eric McLean was charged with first-degree murder in Tennessee. His high-school-teacher wife’s teenage lover came onto his property, and Mr. McLean threatened him with a gun (a rifle or shotgun of some sort). In the trial, Mr. McLean claimed he did not intend to pull the trigger; the gun discharged accidentally.

The Serial ME testified there was no way the gun could have discharged accidentally. It had to be intentional. That’s the prosecution’s job, not the ME’s. And, like the Collett jury, the McLean jury did not buy the ME’s claims.

You might wonder how an ME could testify about weapons and ballistics. I suppose she could have based her conclusion on the average muscle strength of the human finger or something.

You might wonder how an ME could infer the intention in the mind of someone who held a gun. I suppose she could have read the defendant’s mind.

Sidebar: I don’t remember all the details of the ME’s testimony, but I think she may have staged a demonstration with the gun in the courtroom in this trial, too.

Trial of Raynella Dossett-Leath

In 2009 Raynella Dossett-Leath was tried for the murder of her husband. The Serial ME testified that the deceased could not have committed suicide for two reasons: 1) he had such a high level of barbiturates in his system that he would have been unconscious when he died, and 2) three shots were fired but the second shot killed him.

The ME’s “Report of Investigation by County Medical Examiner” (dated the day after the incident) is available online. It summarizes the case, but does not include any reference to the drugs in the victim’s system, because (as I understand it) that finding came much later, after a blood sample was sent to the TN state crime lab, which has since lost the blood sample.

The report exhibits the same leap to a conclusion of homicide that the ME made in the Collett and McLean cases.

However, the Serial ME’s role in the prosecution of Ms. Dossett-Leath is so extensive and complex, I need to discuss that case in another blog post.

To be continued …

        

If jurors are subject to public scrutiny and criticism, then surely medical examiners who identify homicide victims—and as a result force private citizens into the jury box at murder trials—must also be subject to public scrutiny and criticism.

In this era of televised trials, the cameras rarely turn on the jury; but they often focus on the witness stand where expert witnesses, including MEs, sit. Some MEs’ faces turn up on TV more often than others.

If there were a Sidewalk of ME Stars in Atlanta (where CNN’s In Session originates), one cement slab would surely be devoted to a female Tennessee medical examiner with a long, difficult-to-spell name. Because her name is so long, and because I’m not comfortable criticizing most forensic experts (I’m not a lawyer or forensic expert), I’m going to omit this woman’s name.

Problematic Science in Court

It may simply be a coincidence that a certain ME has testified in three trials that exemplify for me the problems with scientific presentations in court: the trials of John Collett, Raynella Dossett-Leath, and Eric McClean. But it seems unlikely to be a coincidence that each of these defendants is free today (at least free on parole or bond). Each trial had an outcome unfavorable to the prosecution for which this ME testified. Mr. Collett was found not guilty, Ms. Dossett-Leath’s trial ended in a hung jury, and Mr. McClean’s trial ended in a conviction on minor charges and a sentence of parole.

Science in Court for the Finders of Fact

In American law, the jury is the “finder of fact,” not the cops, not the prosecutor, not the judge.

Sidebar: This isn’t true in most countries. The issue is complex, and I will tackle it soon, but not now.

What “finding fact” means is that the jury examines the evidence and decides which of it is valid and which is not. In a murder trial this includes the ME’s testimony as well as autopsy photos and possibly the autopsy report. (I believe in many trials, the written autopsy is referred to by ME witnesses but never given to the jury.)

Ideally, an ME conducts every autopsy according to the “scientific method.” The method is a series of steps:

1. Pose a logical sequence of questions about a physical phenomenon (such as, What was the “cause of death?” What was the “manner of death?”)
2. Conduct background research (such as analyzing blood and stomach contents)
3. Construct a hypothesis (using Ockham’s Razor, that is, the simplest explanation is usually the truth)
4. Conduct an experiment based on the hypothesis
5. Analyze the results of the experiment
6. Draw a conclusion and support it with the experimental data

Note that the first step is to list all the reasonable questions. An ME must begin by questioning the cause of death and not jump immediately to the question about the manner of death. An ME must know what killed a person before she can declare the manner of death to be a homicide. Research must first be conducted into the cause of death, hypotheses tested, data analyzed, and conclusions drawn before asking the question: Was the cause of death natural, accidental, suicide, or homicide?

The final step in the scientific method is designed to communicate and persuade others of scientific conclusions. What that means for an ME is that the autopsy report must be persuasive and, in the case of homicide, must convince a jury.

Sidebar: I believe most jurors don’t understand that all science is subject to review and contradiction. Non-scientists don’t understand that scientific truth changes and evolves each time new experiments are conducted and new conclusions are reached. In other words, scientists require good rhetoric as much as a trial lawyer does.

Rules of Evidence

In most criminal trials, the prosecution must justify each of its items of evidence to a judge before any evidence can be presented to the jury. In America, the judge doesn’t declare items of evidence to be valid—only to be admissible and relevant under a very complex set of rules.

These “rules of evidence” derive from decades and sometimes centuries of common law and case law. None of the rules involve the scientific method.

A 1990s era Supreme Court decision, Daubert v. Merrell, attempted to banish “junk science” (evidence not deemed scientific by the science community) from courts. Unfortunately, the decision did not address the issue of experts who purport to be practitioners of legitimate scientific disciplines, but who—either carelessly or intentionally—fail to adhere to the scientific method.

Sidebar: For example, in 2002 a Bell Labs physicist, Jan Hendrick Schon, was discovered to have falsified data and claimed to have developed an organic transistor when he had not. If his claim had been true, it would have destroyed most of Silicon Valley and consequently a major segment of American industry. It was all a lie, and his fellow physicists did not discover the fraud through the much-vaunted “peer review process” until a young researcher noted that Schon had presented identical data sets as evidence of different conclusions.

In a murder trial, the autopsy or ME’s testimony is always admitted into evidence. The law does not contemplate the possibility that an ME would falsify an autopsy report or fail to adhere to the scientific method.

Autopsy Protocols

Well-known, standard procedures govern the conduct of an autopsy (Midwest Autopsy has a nice, clear description of the steps in an autopsy). The autopsy itself is step 2 in the scientific method, the background-research step.

Perhaps the most important step in an autopsy—certainly in homicide cases—is determining the time of death. ME technicians collect evidence of this at the place where a case of suspicious death occurred. In the body they note rigor mortis, livor mortis, and should also take the liver temperature. If they do not take a liver temperature at the scene, then the ME should take the temperature as soon as the body is received in the morgue. Failure to do so can cause a suicide to be identified as a homicide and the wrong person to be identified as a murderer simply because she doesn’t have an alibi.

The medical examiner must not approach an autopsy with an intellectual bias toward either the cause of death or the manner. As Dr. Friedlander of Midwest Autopsy notes, “At least a fifth of autopsies reveal a cause of death other than was believed clinically.”

The autopsy report and death certificate comprise the final step in the scientific method, the argument and persuasion.

CSI Involvement

In cases of suspicious death the police will take custody of the body, rather than a physician. Police crime-scene investigators will collect evidence from the body and around the place where it was found. Then, after the body is received at the morgue, either an ME or a crime-scene tech will remove all clothing and preserve it and will collect further hair and fiber evidence.

In such cases, the detective in charge of the investigation into the suspicious death will attend the autopsy (or should) to ensure that the ME doesn’t overlook anything or make obvious mistakes. The ME and the detective may discuss the circumstances under which the body was found. This discussion becomes part of the ME’s research. It also tends to guide the ME to ask questions and pose hypotheses.

Clearly, this police information has the potential to bias the ME. This is apparently what happened in the investigation into the death of Sgt. Drew Peterson’s second wife, Kathleen Savio, for instance. A good ME, of course, will resist the temptation to jump to conclusions. (It’s notable that the Savio autopsy was conducted by a pathologist, but the initial, mistaken cause of death as accidental was determined by a coroner’s jury.)

Put simply, nothing in criminal law prevents medical examiners from making mistakes or presenting false information to a jury.

In Part II I will examine a certain medical examiner’s testimony in three murder trials.

        

In researching South Carolina v Rye, I stumbled upon a document involving jurors’ duties versus jurors’ rights: “Comments on Behalf of the South Carolina Press Association to Proposed Rule 141 c of the South Carolina Rules of Criminal Procedure.”

The document is attorney Jay Bender’s letter to the South Carolina Supreme Court urging the court not to implement a rule this year that would prevent the press from contacting jurors following a trial, because the rule would infringe on the freedom of the press. What strikes me in the letter is that it defines jury service: “service as a juror has long been regarded as the performance of a public duty, the performance of which by any juror is subject to commentary and criticism. . . .”

Based on this premise (that performance of a public duty is subject to criticism), the press is seeking—in essence—to permit the press to publicly vilify jurors and to give other private citizens who oppose a verdict to harangue and harass jurors.

This idea isn’t new to me. I realize that jurors have no privacy rights. I had thought until I read Mr. Bender’s letter, however, that this was a court-imposed problem for jurors. Now I see that it is a press-imposed problem.

Sidebar: I have written previously about the supposed freedom of the public to observe all aspects of a trial, including voir dire and jury selection, so I won’t repeat the details of the issue here. But it continues to plague me. Earlier this week (for instance) Jean Casarez of CNN’s In Session reported that the press was petitioning the judge in the Kansas abortion-doctor-murder trial to observe voir dire. If that isn’t proof positive of the risks a person takes when summoned to jury duty, I don’t know what is: the press wants to hear prospective jurors (not only chosen jurors) say what their personal views on abortion are—I guess so that other deranged people on both sides of the issue can shoot them, too.

I also know juror misconduct is a crime, and jurors can be punished for what they do as jurors—but a verdict (one way or the other) is not misconduct. Even so, apparently the press in South Carolina thinks a verdict is something a juror should be held accountable for.

I will take Mr. Bender’s word for it that the principle is well-established (at least in South Carolina law) that all public duties are subject to public criticism. But I cannot accept his understanding of the words “service” and “public duty.” Service is voluntary. Duty is not.  Public service includes the roles of judges, lawyers, and police officers. They volunteer; they serve; they get paid. Some of them are elected; many are not: they are appointed. Many of these professionals are also licensed by the states.

If you volunteer to perform a service to the public, you accept fair remuneration for your services and swear you are qualified and will perform your services to the best of your ability. The public may scrutinize your service as a consequence. If the public determines that you have failed in some way, they may criticize you.

Duty is assigned. Jury duty is assigned. It isn’t voluntary, and the pay is not fair remuneration.

If your are assigned to a duty, you need not be remunerated for performing your duties. You may also have to swear an oath, but the public cannot expect you to have any qualifications of any kind. If it is a public duty, then everyone in the public may be called upon to do the duty. It is not specialized in any way. You do not swear to perform to the best of your ability, because no ability is required for the duty to be performed. On jury duty, your duty is to follow the judge’s instructions and apply the law as it is read to you. Jurors are not licensed by the states.

A judge’s service may be subject to press scrutiny and criticism; a juror’s duty is not.

        

A comment on this blog yesterday mentioned the length of time it took the jury in South Carolina v Rye to find the defendant Grover Rye not guilty. The length of deliberations in the trial did not surprise me, though. Because of case law and common law traditions, deliberations in every case should take at least four hours, in my opinion (I am not a lawyer). In some ways this is a good thing; in others it is not.

What Happens During Deliberations?

Judges make it very clear to jurors that they must not make up their minds until after they have deliberated. (This is a good thing.) So, even in the most slam-dunk case, a jury needs time to follow the judge’s instructions. (The O. J. Simpson jury, for instance, took four hours to find him not guilty after a very lengthy trial, even though the jurors later reported that they had decided the case very quickly.)

1) When a jury goes into the deliberation room, the first thing they do is choose a foreperson. This isn’t as easy as it might sound. Jurors know very little about each other. Several people may volunteer (a bad idea, IMHO); several people may nominate someone else.

2) Once a foreperson is chosen, she has to figure out what to do next. The judge doesn’t explain what it means to deliberate, just how to follow the verdict form, which is a nightmarish document.

I suspect that in most cases the foreperson reads through the jury instructions (if the judge sends a written copy into the deliberation room with the jury). In South Carolina v Rye (version 1), the instructions were seriously flawed; so in the retrial I imagine the judge was meticulous both in preparing and reading the instructions. Detailed instructions are lengthy and arcane. If a jury has to read through them, that alone takes an hour or more.

3) Even if there are no written jury instructions, there is always a lengthy verdict form, which the foreperson uses as a map for deliberations. Most people probably assume a verdict form is simple: check box A or box B. In fact, the verdict form is the judge’s interpretation of and restatement of the state’s laws. It is laid out like a decision tree and in the negative: if A and not B, then check box A1.1. If A and B, then check box A1.2. It’s maddening, like an income tax form only worse: if you check the wrong box, somebody could die.

My guess is that in most trials the bulk of the time is spent in an effort to translate the verdict form into logical, plain English.

4) At some point, everyone on the jury is given a chance to express his or her opinion. (A natural tendency is to take a straw poll at first; but even if everyone agrees on a verdict, they have promised to deliberate.)

Some people say “I agree with what has been said” and nothing else. Few Americans are comfortable speaking in public. Since a jury is a crowd of the public, it isn’t as easy as some of you might think for the rest of us to “speak our minds.”

But some people like to hear themselves talk, and they interpret the judge’s instructions “to deliberate” as a mandate to deliver a lecture.

5) Eventually, the foreperson asks if everyone’s ready to vote. Most jurors will say “yes.” But one or two may say, “I’m not so sure yet.” When that happens, the “roundtable discussion” is repeated with everyone saying exactly what they said before.

S. Carolina v Rye Deliberations

Believe me, if you’re on trial you don’t want the jury to take an hour or less to deliver the verdict. You want them to give serious thought to the issues.

In the Rye trial I see several issues that could have given the jury pause. First, of course, is the sad fact that someone died of gunshot wounds. That in itself is enough to require serious discussion. Anyone who values human life would want to be very sure Mr. Rye did not act out of anger and vengeance.

The second issue that had to be considered was the fact that he returned to his property after making a 911 call in which he said he would wait for the sheriff in his car, but instead he got a gun and went in the direction of the sound of gunshots.

Both of these issues were expressed in the verdict form as to the laws of self-defense and defense of habitation. That means the jury had to take enough time to discuss these complex issues. Even a juror who felt as I do that the deceased was behaving like a police thug would have to consider these issues carefully: just because someone is behaving badly is no excuse for behaving badly yourself. That’s the whole purpose of law.

Why Jury Duty is Frustrating

If I were on the Rye jury I would have been seething by the time I went into the deliberation room, because of what was NOT said in court. As far as I can tell, no mention was made that the deceased was a cop who was breaking the law (the defense pointed out only that he was breaking the law, not that he was betraying his oath of office) or that the entire law-enforcement establishment of the county appears to have colluded in a cover-up.

But the Rye trial is not unusual in this regard. Case law forces the courts to present evidence in this distorted way. No jury ever hears the truth, the whole truth, and nothing but the truth.

One of the common law principles at work in American trials is that the “jury is the finder of fact, not of the law.” This principle is fundamental to the way evidence is presented in American courts. It is also a principle that derives from an early-modern understanding of natural law.

Even the term “natural law” has evolved significantly since the time the Constitution was written. And since this is my expertise (the history of the English language), I will restrain myself for now. The concept of “finder of fact” deserves at least one blog post of its own.