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.

        

Imagine this: You’re selected to serve on a jury involving the homicide of an American military veteran and police officer. You’re a patriot. You admire our troops. You believe in law and order.  But the state in which you live and the county in which you live fails in this instance to maintain law and order. An off-duty cop is shot to death, and the prosecution claims it was all over a neighborhood dispute about some cats.

• Sidebar: It’s difficult to find details of this case other than the appellate court’s decision and CNN’s In Session blog. I have inferred that the “victim,” Robert Odam, was a military veteran from a photograph of him in uniform, which I saw on TV. However, the uniform might be a law enforcement uniform. The incident occurred in 2004, which led me to think Mr. Odam might have been an Iraq War veteran, and as a result the jury might have been biased strongly in his favor.

That’s the situation that confronted two juries in South Carolina v Rye. Every criminal jury is convened at the end of a series of systemic failures to maintain law and order. In this case, the failures were monumental. That’s why it’s “really hard to be a juror.”

In the first Rye trial, the jury wasn’t told that it’s legal to defend your home; in the second they were.

• Sidebar: CNN’s In Session blog called the appellate court’s overturning of the first verdict a “paperwork problem.” I’m sorry to say I find that offensive. When a judge reads the wrong law to a jury, it’s an egregious error that violates not only the defendant’s rights but also the jurors’. The error forced the jurors to find a man guilty of murder, because they swore to uphold the law as the judge explained it. To be honest, it makes me wonder about the first judge’s objectivity; how any unbiased judge could fail to see the incident as a type of home invasion is beyond me.

But in neither trial, as far as I can tell, did the prosecution admit that the supposed victim was an off-duty cop who was breaking the law or that his fellow officers repeatedly colluded with him in violating the civil rights of a citizen.

• Sidebar: Several police officers (sheriff’s deputies, I think) responded to calls from Mr. Rye, the defendant, but failed to follow up and investigate what appeared to be not only vandalism but breaking and entering and unlawful use of a gun. That was a dangerous situation. That’s what the cops are for.
• Even the 911 operators appeared (in my opinion) to respond improperly to Mr. Rye’s calls. The only explanation that I can see is that they all knew who was behind the incidents and didn’t want to get their buddy in trouble.
• I’m not a lawyer, but it seems to me this is a federal civil rights violation. (I hope Mr. Rye will sue the county now for false imprisonment, and I wish the U. S. Justice Dept. would take a look at the county, too.)

Jury in the Hot Seat

I have been in a jury deliberation room and been asked to decide whether a person should go to prison for decades for a crime in which the victim was utterly sympathetic, like a veteran or police officer. When I was selected, I expected it to be an easy deliberation, but it turned out to be one of the most difficult, stressful events in my otherwise stressful life. And since then I have heard countless other jurors express the same feeling.

It was so stressful, I spent weeks and weeks afterwards researching the law, and then I decided to vent my frustration in a blog. (My venting hasn’t yet relieved me of my anxiety about the state of the justice system in this country.)

Finally, I realized that what I really needed to do was write fiction about jury duty. I’m a fiction writer, after all. So I wrote, THE JUROR HANGS.

In the novel, my protagonist is a young (much younger than me) librarian-juror who finds herself the lone holdout on a jury of 11 men plus 1. She’s a lot more self-confident than I am. She also handles the stress a lot better than I did. But partly that’s because I decided to set the trial in 1952, which was a much simpler, happier time than these.

THE JUROR HANGS is available exclusively from Amazon on the Kindle. It’s a reasonable $2.99. You can read it on the Kindle, the iPhone, or your laptop. (If you would like to read it in another format, please email me at ccm@ccmambretti.com.)

If you want to know how a juror should behave—as opposed to the way I behaved—read THE JUROR HANGS. Otherwise, I think you should thank your lucky stars that a jury in South Carolina saw through the government’s twisted scheme and freed an innocent man—the real victim in South Carolina v. Thomas Grover Rye.

 P. S. If the number of illiterate comments my previous post about this case received is any indication, there are quite a few people in South Carolina who don't understand something: if you have an issue with your neighbor's pets or the condition of the property, you are supposed to contact county authorities and demand they do something about it--issue a citation, for instance. You aren't supposed to load a gun, trespass on the property, and start shooting, whether or not you are the friend of an off-duty cop.

        

CNN’s In Session this week is covering the retrial of a South Carolina man named Grover Rye for the murder of an off-duty policeman. Even the South Carolina Appellate Court called the case “bizarre.” The retrial took place in October, as John Monk reports in The State, “Dead cats’ owner cleared of killing deputy.”

When I heard In Session’s Ryan Smith interview pet lovers about the case, I was struck by two things: 1) pet murder is a crime, a form of vandalism, and 2) the idea of an off-duty cop trespassing on my property with a loaded gun is horrifying—why didn’t Ryan Smith interview people about that?

The Crimes

Mr. Rye owned property where he kept pet cats and had off-site storage for a business. He often spent the night there, although it was not his primary address. He reported numerous instances of trespassing and vandalism to the police, who repeatedly ignored his complaints. One day a neighbor and his friend, a cop, trespassed on the property with loaded weapons and fired several rounds of ammunition. The defendant discovered one of his cats had been shot. He left the property to call the police, and when he returned found himself confronting the two armed men. His initial conviction came as a result of the surviving, armed trespasser’s testimony that the victim was killed after he lowered his weapon—and only that testimony.

Mr. Rye won his appeal on the grounds that the judge had not properly instructed the jury on the law of “defense of habitation.” No mention is made in the decision of the fact that the trespassers were not charged with crimes or that a police officer clearly was using his skills as a law enforcement officer to break the law.

Police Thugs

I don’t think I’ve ever heard a more chilling tale of police misconduct than this. It reminds me of the Gestapo.

Consider this: Your neighbor is in law enforcement. Every day you see him come home from work wearing a sidearm. Then one day you discover your pet cat shot dead in the backyard. What do you do? You call the police. Who responds to your call? Either your neighbor or one of his buddies, who says there’s nothing he can do about the dead cat.

What if your disputes with your neighbor continue to escalate? Then someone steals the plates off your car. A crime is committed, and witnesses identify your license plate number on the getaway vehicle. The DMV suddenly sends you a notice that you owe hundreds of dollars in traffic tickets.

What if you come home from work to discover your house has been broken into and your personal identity information has been stolen? After that, someone uses your credit cards to buy expensive items; someone takes out a loan or a mortgage. Your credit is ruined. After that you go to a polling place on election day and are turned away by an election judge, because someone else has already voted in your name. You apply for a passport, but the State Department tells you it has already issued you a passport.

And all the while, you feel certain the culprit is your police-officer neighbor.

The situation Mr. Rye faced was truly Kafkaesque.

The Jury to the Rescue, Once Again

South Carolina v. Rye is the reason the Bill of Rights puts strict limits on police power—not only because the power of the state must be kept in check but also because of the thin line between the rule of law and the rule of the cops.

        

This morning I did a web search for news of the jury-selection process in the second Dossett-Leath murder trial, which began yesterday in Knoxville, TN, and I discovered an interesting copyright issue: the Knoxville News Sentinel at www.Knoxnews.com is using something called iCopyright.net to secure its rights to its online articles.

Another Knoxville news outlet, however, has posted an article under the usual terms: www.wate.com. (The article, by Hana Kim, is “Jury seated for murder trial of Raynella Dossett-Leath.”)

Both stories report completely separate “facts” of events in court yesterday.

Recently, Judge Richard Posner reportedly advocated a system of charge-per-link as a way of protecting newspaper copyrights—something along the lines of iCopyright.net, apparently. His argument was that a newspaper (and presumably a television news organization) spends a lot on news-gathering; then bloggers and news aggregators simply freeload by linking to the news provider’s site. (I wonder what Google would do if his proposition were adopted?)

This situation poses a number of problems for me, both as a writer and as a blogger (a merely opinionated person, as opposed to a journalist).

1) I value my copyrights highly, but recently American law has begun to chip away at my rights: Congress has passed several blatantly unconstitutional special, private laws for their campaign-contributors. For instance, Disney now has a virtually eternal copyright to Mickey Mouse and friends; Sonny Bono persuaded Congress that music producers and book publishers are entitled to more extensive copyright protection than anyone else is entitled to, including creators; dead celebrities’ estates can claim ownership of the deceased’s image almost forever.

2) Every copyrighted work can be referenced under the “fair use” doctrine for purposes of review and education. So, as a writer of both reviews and educational materials (which I am, and I’m not talking about this blog alone) I am entitled to a certain freedom of expression when it comes to other people’s copyrighted works. For example, I can criticize the “legitimate” media in Knoxville, TN, for labeling a defendant “the Black Widow” so that she can’t possibly get a fair trial.

3) There is no way I will permit a third party, such as iCopyright.net, to display their ads on this blog. This is a non-commercial blog about a serious American institution—the jury.

The situation also presents obvious workarounds.

1) If all online news sources prefer that I simply read their articles and then express my opinions without making any reference to them, I will be happy to do that. It seems to be the most reasonable approach. I can “opine” as pompously as anyone else online or off without citing my sources. That’s what newspapers do all the time.

2) If some online news sources (not all) don’t want me to direct traffic to their sites, that’s fine with me, too. I can provide interesting, informative links to sites that understand the value of free advertising.

The Dossett-Leath Jury Selection Process

According to numerous online sources, jury selection in the retrial of Raynella Dossett-Leath in Knoxville, TN, was conducted yesterday by the same judge who presided over her first trial, Judge Richard Baumgartner. He called a pool of 500 people to a local auditorium and told them that the jury would be sequestered beginning next Tuesday. Then he asked for a show of hands as to how many of the 500 would volunteer to serve on a sequestered jury. Fifty or so people responded positively. Subsequently, a jury of 12 plus 3 alternates was selected.

Sequestration makes perfect sense to me (a non-lawyer), because the defendant has already been condemned in the local media, and the trial is bound to be the focus of local gossip over the next few days. However, if I were the defendant, I would have wanted the venue changed to Memphis, where presumably they have better things to do than help a woman’s in-laws send her to jail so they can claim her husband’s estate.

A CourtTV truck was parked outside the jury-selection location. That means In Session will be covering the retrial. I imagine In Session won’t ask me to pay for a link to their blog. (Frankly, I think it should be the other way around, despite Judge Posner understanding of economics and the law.)

        

The retrial of Raynella Dossett-Leath begins on Monday, Jan. 11. Because it is a retrial, I suppose CNN’s InSession won’t bother to cover it gavel to gavel. More’s the pity. This case is fascinating, and the retrial promises to be very different from the original trial.

• Sidebar: Every media outlet in the Knoxville, TN, region calls Ms. Dossett-Leath the Black Widow. I’m only mimicking the “legitimate media” (bloggers being illegitimate).
• Ever wonder when they started calling women accused of killing their husbands “Black Widows”? I checked the OE for the first usage of the term and could not find it there. The term was used in English by 1884 when two women were called the “Black Widows of Liverpool.” But that surely isn’t the first usage. Misogyny is millennia old. The male equivalent, I suppose, is “Bluebeard,” but a Bluebeard is a serial killer of his wives, like (apparently) Drew Peterson, while a “Black Widow” earns her title with a single accusation. Unfortunately for Ms. Dossett-Leath, she is accused in a separate indictment of killing another husband, too.

Jury Selection in a Hostile Venue

I imagine that right now legions of jury consultants are assisting both sides with the jury questionnaires and jury-selection strategies. In the land of Black Widow nurses, though, the first concern surely is finding a jury panel that is ignorant of the full story, objective, and unbiased.

• Sidebar: I call Tennessee the land of Black Widow nurses because only a few weeks ago another TN nurse (Sharron Chason) was tried for the murder of her husband. The fact that Ms. Dossett-Leath is a nurse, I believe, will work against her (for reasons I will explain below).

Any juror who has heard the defendant in this case referred to as the Black Widow ought to be excused, IMHO. The term implies serial killing to many people (suggesting that the defendant is guilty of more than one murder) and it absolutely implies guilt. However, I suppose the law doesn’t see this issue the way I do or else the trial would have been changed to another venue.

Jury Selection Everywhere

I am not a lawyer. I am not a jury consultant. I am not a jury expert. I’m just a former criminal-trial juror. Since I served as a juror, I’ve made a sort of study of jurors in the high-profile cases that make national news, and I have reached some conclusions about “juror profiling.”

And I certainly don’t believe in Abbott’s Analytic Juror Rater.

The AJR

The Analytic Juror Rater is a 1987 book by Walter Abbott. It claims to predict how any given juror will vote based on a “Cosmopolitan Lifestyle Scale” and a “Non-Authoritarian Scale.” The first of these scales is based on the assumption that economic status and social environment make a juror more or less sympathetic with certain defendants, and the second of these, obviously, assumes that some personality types are more likely to fear the state.

The Hanged Juror’s Juror Rater

The one question I would ask each prospective juror: What do you do for a living?

• First, you don’t need to ask any juror what their race is, ethnicity, age, or income. Those characteristics are fairly obvious.
• Second, you ought not to assume that if the juror looks at all like the defendant that he or she is going to be naturally sympathetic with the defendant; in fact, if you’re honest with yourself, most of us would really dislike meeting anyone who was just like we are. (On the jury with me was a woman who was very like me and I wanted to strangle her.) However, the AJR is based on the premise that everyone has biases for people like them and against people unlike them.

Okay, so if you buy my premise, then maybe you will understand why profession, career, or livelihood is the most important indicator of the type of juror any individual will make. It’s something you choose for yourself. You aren’t born being a nurse or a fiction writer.

Principle No. 1: A person who has the same livelihood as the defendant is also the person most likely to condemn the defendant.

I suspect that most attorneys think a nurse would be a good choice for the Dossett-Leath jury, but I think not. One of the issues in the trial will be the high level of barbiturates in the deceased’s blood. Every nurse (and every doctor) will know how easy it is for a nurse to obtain such drugs, while other professionals may only suspect but be willing to give the defendant the benefit of the doubt.

Principle No. 2: Most professionals are know-it-alls.

The foreman of the jury on which I served was an engineer. She campaigned for the position by claiming to have read books on how to reach consensus.  Another juror was a teacher, and she subjected us to an hour-long lecture on the definition of kidnapping.

In the first Dossett-Leath trial I believe one juror was an engineer who asked an expert witness about the theta (angle) of a bullet’s trajectory. Engineers, I believe, are good candidates for juries in which the defense is planning to argue reasonable doubt, but they probably won’t buy most affirmative defenses, including alternative theories of the crime. Engineers can’t help but make decisions all the time based on a preponderance of the evidence; an affirmative defense can never claim to have a preponderance of the evidence on their side.

Principle No. 3: Some jobs are detail-oriented, some are not.

Engineers and computer programmers are nitpickers. Copyeditors are nitpickers (I know, I’ve been a copyeditor, a computer technical writer, and a programmer). You don’t want these people on a jury that must decide a case where the defense is ambiguous. You do want them on a jury where the ambiguities work in your favor, though—as in a reasonable doubt defense. Since I would vote not guilty if I were on the Dossett-Leath jury based on what I know now, I suppose that means that nitpickers would be appalled by the prosecution’s sloppy police work and the M.E.’s outrageous conclusions.

While I’m on this subject I should note that during voir dire it would be wise to ask prospective jurors about their complete history of employment, since most of us go through two or three careers these days. In my case, they asked me about my mystery writing but not my previous technical career.

Principle No. 4: Sex stereotypes fall apart when the individual chooses a profession that’s counter to the stereotypical role (male models, for instance, and female firefighters).

Principle No. 5: Some jobs teach skepticism (reasonable doubt) while some teach credulity.

On “my” jury we had a priest (credulous) and a geneticist (skeptical, questioning, “how did this evolve”?). The priest was the last to question the prosecution.

In a highly controversial trial several months ago (which I will not mention, because I get spammed every time I do) one juror was a lawyer who, though not the foreperson, led the jury to a not-guilty verdict based on reasonable doubt about the star witnesses for the prosecution. It was then that I realized you have to be a lawyer to “buy” a reasonable doubt defense. (I don’t think lawyers are skeptics, though; I think they’re relativists, but that’s another issue.)

Principle No. 6: Some jobs require teamwork and consensus-building, some require individual initiative.

Prosecutors should look for team players; defense attorneys should look for mavericks. I suspect that most businesspeople are team players, as are most nurses. Mavericks would be tennis players, chess players, farmers, self-employed people, artists, writers—anyone who goes it alone.

Selection of the Dossett-Leath jurors is probably fraught with peril for the defense. I wish them luck. And luck is frankly what is required. They can’t do anything about the jury pool. They have to rely on the judge to excuse as many potentially biased people as possible so that they don’t use up their limited number of discretionary selections.

A good lawyer, though, knows he or she can influence the jury by asking the right questions of them during voir dire. I hope the Dossett-Leath defense team asks a lot of questions about professions.

I wish I could be there to observe the process. But I’m very happy that CNN can’t broadcast voir dire in any trial, because jurors have little enough privacy as it is.

        

In chess black moves second; in court the defense moves second. In neither game is the second move necessarily defensive, but it is necessarily a response to the opponent’s opening—a response that can set the tone of the fight.

In chess, black’s move often determines which of the classic openings are employed, not white’s first move. In other words, white moves one of ten possible pieces (out of 16) to one of ten possible squares (16). But black (which also moves one of ten to one of 16) chooses the battle plan by moving her piece in relationship to white’s piece. She can directly confront and thereby block the opponent (preventing the piece from moving in the next turn) or can attack the opponent (forcing white to move the same piece on his second move) or can move a piece obliquely away from white’s piece (forcing white to wonder what in the world black is up to).

The same is true of defense opening statements in a criminal trial—although few defense lawyers seem to realize this.

A few very clever defense openings come to mind, though.

The Dream Team Defense Opening

In the murder trial of O. J. Simpson, the defense proposed an alternative theory of the crime in their opening statement. It was an oblique move designed to cause the jury—not the prosecution or the judge—to consider the possibility that Simpson was absolutely innocent, not merely not guilty by reasonable doubt. The rhetorical effect on the jury was to cause them to disregard the domestic violence testimony, which formed the basis of motive in the prosecution case. As Johnny Cochrane cleverly pointed out, every wife-beater is not a slasher-killer.

Chasson Defense Opening

In the Tennessee trial of nurse Sharron Chason, defense attorney Dan Warlick denied that any crime had occurred. His client’s husband died accidentally. It was a direct attack on the prosecution’s core assertion: the cause of death was intentional poisoning. Again, the defense opening was designed for the jury, not the other lawyers in the courtroom. After that, throughout the prosecution’s presentation, the jury understood the purpose behind the defense cross-examination of expert witnesses.

Neil Entwistle’s Defense Opening

I thought Neil Entwistle’s attorney made a very clever move in his opening statement (despite his ultimate failure with the jury). Entwistle was accused of shooting his wife and newborn, then surfing the web for sex, and finally fleeing to England. The defense opening was brief: “Everything is not what it seems.” It was a blocking move against the prosecution.

Considering that Enwistle was notorious when the trial started, the opening was sufficient to make me wonder what the defense might be planning to present. I suspended my disbelief during the prosecution’s case and mentally considered alternative theories of the crime. Unfortunately, the defense ultimately failed to come through with a plausible alternative theory and relied—as most defenses do—on reasonable doubt. (I’ve already written ad nauseum about the impossibility of a good reasonable-doubt defense.)

A Public Defender’s Defense Opening (Cook County Criminal Courthouse)

When I was a juror on a trial in Cook County Criminal Courthouse, the public defender opened in a bizarre way that completely baffled me at the time. In retrospect, though, it was what in chess is known as an “opening gambit.” (A gambit is offering a sacrificial piece to gain an advantage.) He acknowledged that his client had committed  felonious assault but ridiculed the idea that he had kidnapped anyone. He said he would “prove” his client was innocent of kidnapping.

The defense sacrificed the lesser charges in order to prevent conviction for kidnapping. The effect on me, as a juror, was to immediately persuade me the lawyer must be right. If he was willing to admit that the defendant had committed a crime for which he ought to be convicted, I believed he must be right about the kidnapping charge. In fact, following the prosecution’s ineffective opening as it did, it rang true.

No Opening Move—Not Available in Chess

In chess black can’t decline to move—not in the opening, not ever. When a player declines to move it ends the game; it is a concession of defeat. But in court, the defense has the option of withholding its opening until after the prosecution’s case. In a few instances, this may be effective. As far as I know, though, this is rarely done.

However, in last year’s trial of Tennessee nurse Raynella Dossett-Leath (no, they don’t seem to like nurses in TN), the defense might have been better served had they not opened with an alibi defense and a suggestion that someone else could have done it. This is especially true because, when the defense case opened, they switched to a suicide defense.

Most Openings Are Stock

Most chess games begin with white pushing the king’s or queen’s pawn two squares to the fourth rank (row) and black pushing the pawn directly opposite to the fifth rank. In court most prosecutions open by embellishing the indictment, while most defenses open by claiming erroneous, faulty investigation resulting in reasonable doubt.

The prosecution may have no choice in its opening. They wrote the indictment; they have to live with it. But the defense is different.

It seems to me that in most trials the defense would do well to adopt one of the above openings or to keep an ace up its sleeve (something a chess player can’t do).

Because the rhetorical advantage with every jury lies with the prosecution, the defense would be well served to keep its strategy secret for as long as possible. I can think of at least two ways to do this: 1) decline to present an opening until after the prosecution’s case, or 2) make a generic opening statement that sets the jury’s expectations without making specific claims, including “reasonable doubt” or alternative theories of the crime.

Only in an affirmative defense (accusing a specific person, denying the crime occurred) does an aggressive opening make sense to me; and then—afterwards—the defense has to present a substantial case to back up their claims and not merely argue reasonable doubt.

What do I mean by “a generic opening”?

Lawyers seem to forget that most jurors have never been in a criminal courtroom before. So a lawyer who sets the jurors’ expectations concerning what is going to happen will be doing them a favor and will also have the benefit of guiding their thinking during testimony.

Among the things a defense attorney should inform the jury about IMHO (non-legal) include:

1) Testimony

• Inherent bias of most prosecution witnesses as employees of the state
• Natural biases of witnesses who are relatives or friends of the victim
• Sheer number of prosecution witnesses is necessitated by arcane rules of evidence
• No Sherlock Holmes detectives in real life
• The sequence of events during the investigation, which led to the defendant’s arrest, proves nothing except that the defendant was arrested; and arrest is far from proof of guilt
• The right of the defendant not to testify does not imply guilt or that he has anything to hide, only that he may be afraid you—the jury—won’t like him if he speaks, because like all human beings he isn’t perfect (I know this is said during jury instructions, but it needs to be said up front)
• Florida v Hartsfield trial the defense opened with a statement to the effect that “you will never hear the defendant say he did it;” this is definitely not what I have in mind. Every juror in the trial thought that meant the defendant was not going to testify.

2) Evidence

• Physical evidence has inherent weaknesses—it may be suggestive, but it isn’t absolute proof of guilt or innocence
• Most defense cases are brief because it’s impossible to prove a negative—give examples such as lack of an alibi or a weak alibi
• Defense evidence is sparse because the prosecution conducted the investigation—they weren’t looking for exculpatory evidence
• Defense investigations occur long after the fact when valuable evidence has vanished—and in every single case only after the arrest
• If someone else did it, explain why the defense can’t possibly name or present that person

3) Courtroom Procedures

• The purpose of cross-examination
• How expert witnesses are qualified (especially hired-gun defense experts—almost all of the prosecution witnesses are paid to be there, too)
• What it means if a witness is termed non-responsive
• What happens in the courtroom when the jury isn’t present
• What speculation is and why it’s prohibited
• Why the jury is prohibited from “investigating”

I realize that courtroom rules prohibit opening statements from including arguments or interpreting the law. I know defense attorneys are supposed to limit their openings to what they intend “to show” through the evidence. But really all this means in effect is that they need to begin their statements with the phrase, “We intend to show” or “The evidence will show.”

For example: “As you hear the testimony of the prosecution’s investigative witnesses, keep in mind who they are. With each cross-examination we will show that the police investigators are no Sherlock Holmeses; they are state employees, paid by the state and trained to believe that every hair, fiber, fingerprint, and DNA sample taken at the scene of a crime is relevant to what happened there. We will show otherwise.”

To be continued. . . .

Technorati Tags: O. J. Simpson,Neil Entwistle,Raynella Dossett-Leath,Sharron Chason,Florida v Hartsfield

        

As I’m sure CNN’s InSession will “reveal” today that in November a jury convicted Tyrone Hartsfield of attempting to murder former Jacksonville Jaguars’ player, Richard Collier, and in December Hartsfield was sentenced to life (he had priors).

By all accounts, Mr. Collier has gained a new perspective on life and recognizes that he’s lucky to be alive. It’s a sad commentary on our culture, though, that a man who “had it all” could only understand the value of life after he had his athletic career stolen from him.

Nancy Pelosi coined the phrase “culture of corruption” to paint an entire political party with the brush of scandal. But if any culture in this country is corrupt it has to be the sports business—it’s big business that’s exempt from monopoly and anti-trust laws. It encourages bright young people to leave the educational system prematurely by luring them with mountains of cash, sex, drugs, and rock & roll. And then, once they make the big leagues, they’re engulfed in the seediest of underworlds.

If you Google “nfl players arrested” you will find hundreds of thousands of blogs and articles like these:

Thirteen Football Mugshots (San Diego News Network) 1990s and 2000s

http://www.sdnn.com/sandiego/2010-01-07/sports/football/top-13-nfl-mugshots-of-this-decade

Football Players Arrested in 2006 (Washington Post)

http://www.washingtonpost.com/wp-srv/sports/nfl/longterm/2006/nfl_chart_12162006.html

Sports Blog (2008)

http://www.yardbarker.com/nfl/articles/NFL_playersmascots_arrested_in_the_past_year/330565

Palmetto Football Talk Blog (Some of the Most Recent)

http://forums.palmettofootballtalk.com/eve/forums/a/tpc/f/6371083665/m/8261017328

NFL Crimes Newsblog (Most Recent)

http://nflcrimes.blogspot.com/

One of the most disgusting was the Minnesota Vikings Sex Boat Scandal of 2005

http://en.wikipedia.org/wiki/Minnesota_Vikings_boat_party_scandal

Does this situation seem sustainable, let alone desirable? I say, let the NFL players strike so more college players will be lured away from their degrees. Let them be locked out. Maybe then big-business sports will have to give way, at least briefly, to high-quality amateur sports. And maybe CNN will cease to follow the tawdry trials of fallen sports heroes.

        

The State’s Opening

In criminal trials, the prosecution always makes the first move. In chess white moves first. The advantage to moving first in both games is that the first to speak gets to establish the shape of the battle.

In chess, white can choose to move either of two knights or any one of eight pawns; can choose to attack the king-side or the queen-side of the opponent’s line; can take a conservative, defensive stance or a risky attack stance.

In court, the prosecution gets to choose the crimes with which to accuse the defense; can choose risky first-degree, capital murder, for instance, or a slam-dunk manslaughter. The prosecution’s opening has the potential to determine every move it’s opponent will make.

“My” Trial: The State’s Opening

But most prosecutors open in exactly the same way in every case. They present a fleshed-out version of the indictment. Very few prosecutor’s seem to consider the jury when they write their opening statements, it seems to me (a former juror, not a lawyer). They seem, instead, to face the jury but address the judge and their opponents.

The prosecution’s opening statement in the trial in which I served as a juror is an example: it turned the indictment into “purple prose” that prepared me to hear evidence of a brutal, serial, child-rapist and kidnapper. As a result, when the evidence presented an entirely different story, I was baffled and most of the other jurors were, too. (It was this conflict between the charges and my sense of the crime that made jury-duty stressful.)

Last year CNN In Session covered a Tennessee trial in which a man named John Collett was accused of murdering his neighbor who was angry because he thought Collett’s pigs had killed his Chihuahua. When the neighbor confronted him, Collett coldly, calmly pulled out a gun and shot him five times—at least that was the prosecution’s opening. In fact, the evidence showed that the neighbor trespassed on Collett’s property riding a four-wheeler and threatened his elderly parents (who were on their front porch) with a shotgun. The prosecution’s opening was an interpretation of the indictment and of TN law, not an address to the jury.

The Jury Speaks—Always the Last to Speak

In “my” trial, the jury found the defendant not guilty of the absurd kidnapping charge, but guilty of two assault charges. In the Collett trial the jury found the defendant not guilty of murder.

Chess Lesson No. 1

Be sure you know how to follow up your opening move.

        

Yesterday, CNN’s InSession began broadcasting a trial involving attempted murder of NFL player Richard Collier (Florida v Hartsfield). Despite CNN’s promise that “a jury will decide,” the trial took place in November and the jury has already decided.

But the verb tense isn’t what disturbs me about this case: it’s what the sordid tale says about sports in America these days. How many times do we have to hear about sports elites’ involvement in violence?

I’m not blaming Mr. Collier, the victim. I’m simply pointing out that every year more than one NFL player is involved in violence. They shoot themselves in the foot at a dangerous bar. They get shot on the back of a pickup truck. They get shot by their suicidal girlfriends. They torture dogs and go to federal prison. The list goes on.

Yes, even golfers and basketball players get in trouble, but right now I’m perplexed by the special laws of football.

Exempt from Anti-Trust Laws

Until yesterday I did not know that Major League Baseball is exempt from anti-trust laws, despite the fact that it is very major-league big business. In addition, it seems that the NFL has some exemptions from anti-trust laws and (according to Bloomberg) is now taking it a step further, all the way to the U. S. Supreme Court putatively over the sale of some embroidered baseball caps with football-team logos on them.

The NFL player’s union suspects that hats aren’t all that’s at stake: if the Supremes side with the NFL over the trademark issue, the NFL team owners may be able to “bust” the unions next season if they go on strike.

NFL Players Association

The NFLPA is a union. It must be one of the most effective unions of all time, given the incredible contracts NFL players, like Michael Vick, receive. If you’re in the union, you get paid a fortune no matter that you’re a convicted felon and a third-string player.

If the union is correct about the real purpose of the NFL’s trust-law complaint, then what the NFL owners intend to do is lock out the players next season, rather than permitting them to strike over plans to contain escalating contracts for rookie players. It’s a puzzle as to why the union is willing to strike over this issue, but that aside the NFL is on the verge of being the first Supreme-Court sanctioned mega-trust. (Actually, I think it’s probably the sports agents who have hoodwinked the union into wanting to strike.)

Who Is the NFL?

The NFL is a corporation owned by the owners of the 32 team franchises. Thirty-one of these are individuals, very wealthy individuals. Only one is itself a corporation, The Green Bay Packers, Inc. As a Chicago Bears fan (disappointed annually) the only good thing about the Packers, as far as I’m concerned, is that it’s democratic; anyone in Green Bay, WI, can buy stock in the team.

You See Where I’m Headed

There’s a reason why so many NFL players are criminals: as a society we have exempted their industry from every standard of decency and law. We celebrate not their skill but their income. If you live in Chicago you pay the Bears’ owners a fortune for the privilege of freezing your derriere off and watching sloppy play and asinine coaching--because you have no choice. The Bears owners have a monopoly on football in the nation’s “Second City.”

Florida v Hartsfield

I wish CNN had chosen a different trial for the first of the year. All it reminds me of—besides the failed Bears—is that certain industries in this country not only have managed to circumvent all the laws that govern the rest of us, but also that we no longer have any sports heroes.

The reason? Radix malorum est cupiditas.

• Sidebar: I have to add that recently I heard a sports commentator claim that the only way an African American teenager can hope to “get ahead” is by playing sports. I guess he doesn’t know who the President of the United States is. But that isn’t surprising, either, since our society no longer values education, and the commentator is a product of our failed schools.

        

For the moment, please accept my definition of “petard” as a “weapon.” (The word has a rich etymology.)

Yesterday CNN’s InSession presented a nice survey of the “capital or otherwise infamous crimes” most likely to dominate legal news this year. At the head of the list was Casey Anthony.

I have no doubt that the Anthony case will be our next trial of the century, because Ms. Anthony is incredibly photogenic. Before being caught up in a sensational child murder, she appears to have realized this and to have tried to worm her way into the club scene in Florida and to have claimed some sort of entertainment-world connection by lying that she worked for Disneyworld or Universal. (It isn’t really worth being too precise, because Ms. Anthony had no visible means of support and no real connection to anything of substance.)

Now her good looks are being used to skewer her. It’s not only that the jail where she’s housed has the legal right to record her every move, it’s that in Florida a “sunshine law” permits the justice system to release all these tapes to the media, and as a result the entire country is forced to watch endless video of Ms. Anthony whining to her parents.

Courtroom Gambits

As I have said before, IMHO (and I am not a lawyer) the prosecution in a criminal trial no longer has the burden of proof. The burden has shifted to the defense because of so-called “scientific evidence,” which forces a jury to assume the truth of the accusation as a premise to be undermined by the defense.

Despite this obvious situation, courtroom rules remain unchanged. The prosecution speaks first and last.

A criminal trial is governed not by the U.S. Constitution and Bill of Rights; it’s governed by centuries’ old traditions, known as common law and “the rules of evidence.” The common law derives ultimately from principles established by the Greeks, the Romans, and medieval feudalism. The rules of evidence derive from a pre-modern understanding (or misunderstanding) of natural laws and processes.

Casey’s Case

The Bill of Rights: Casey Anthony’s name was a household word long before her daughter’s body was ever found, and it wasn’t because anyone believed her child had been kidnapped. She was convicted of murder in the media (without “due process”). She has not been indicted by a grand jury (“No person shall be held to answer for any 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”).

• Sidebar: Please donate to Wikipedia.

The Supreme Court: Casey Anthony’s family has been scrutinized and vilified in the press despite liable and slander laws protecting people who are not public figures. She has been subjected to more adverse pretrial publicity than Dr. Sam Sheppard ever was.

The Burden of Proof of Innocence

Once the Anthony case goes to trial, it will be the defense’s burden both to prove that the prosecution’s case is severely flawed and to prove that Anthony is innocent of murder (they may have to admit child abuse and neglect). But she is not the first defendant who has had to overcome that burden. I believe most defendants have that problem.

Once in court, Anthony’s attorneys will have to be incredibly clever in the way they approach the jury—never mind their problems with the judge and the vindictive prosecutors. They have it in their power to make the jurors their allies or their enemies. And, IMHO (non-lawyer) the last defense they should use is “reasonable doubt.” (That’s the way to alienate the jury.)

To overcome a jury’s inclination to believe that the cops caught a bad guy and the state is prosecuting a bad guy, a defense must present:

• a complete and coherent story.

A Complete Story

Aristotle taught us what a complete story is: it is a story with a beginning, a middle, and an end. Until I started writing fiction, I didn’t really understand the wisdom of this incredibly simple statement.

• A beginning is “why” as well as “when.”
• A middle is “what happened next.”
• An end is “how” we got to this final place, the court.

A Coherent Story

Coherence comes from the “why,” the sequence of events, and the “how.”

Casey Anthony’s defense must tell a complete and coherent story to the jury—not to the prosecutor or the judge. The story must be both Casey’s story and her daughter’s story. They must present a substantial defense with at least one witness to contradict each prosecution witness. The defense must tell a believable story, even if the story doesn’t paint Ms. Anthony as a loving mother. (IMHO, it would be a big mistake to try to make her out to be sympathetic in any way.)

Yes, the defense must rigorously cross-examine every prosecution witness to plant the seeds of reasonable doubt in the jurors’ minds about the quality of the police investigation. And, yes, the defense case must put on expert witnesses to contradict all of the prosecution’s “forensic” evidence.

But in the end, what the jury is really going to want to know is: What was Casey Anthony doing in the 30 days before her mother called 911? 

The prosecution seems to be believe that what Ms. Anthony did was party, that she didn’t think anyone would notice that her child had vanished. But this is an incomplete and incoherent story in itself.

It’s almost impossible for this former juror to imagine that a young woman would be partying and expect no one to notice that her child had vanished. So, it should be possible for the defense to present a believable story, if they don’t cling to the arcane principles that guide most courtroom presentations these days.

        

Over the holidays I began to study chess. It’s something I’ve wanted to do all my life but had no idea how to go about learning the game. Then I discovered an iPhone chess app called iChess. In addition to the free game, iChess Lite, the author, Tom Kerrigan, provides a free ebook titled “Learn Chess.” Then before Christmas I bought the full-blown iChess Pro app—and now I’m hooked.

It didn’t take long for me to realize that a chess game is a bit like a criminal trial: everyone expects the “best” side to win. But the contest is actually so complex that the outcome is never certain. Each side can anticipate the opponent’s moves only to a certain extent. There’s rarely only one “correct” move to make at any given time.

When I realized this about chess, I concluded that psychology has more to do with winning than most people think. That’s why (IMHO) a great chess player ought to be able to beat Big Blue every time. Human beings take risks sometimes and even sacrifice pawns and powerful pieces to set a trap.

I suspect that most jurors take their seats in the jury box assuming that the best side will win, that the moves are finite, though intricate, and that at each step in the trial there is a prescribed move for each side to make.

The rules of a trial reinforce that idea: voir dire comes first, the judge instructs the jury and reads the indictment, the prosecution delivers an opening statement, the defense delivers an opening statement, the prosecution presents its case, the defense presents its case, the prosecution presents a summation, the defense presents its closing argument, the prosecution presents its closing argument, the judge reads the jury instructions and verdict form, and the jury deliberates.

A trial’s rhetorical structure derives not only from common law tradition but also classical rhetoric (as ancient as the Greeks). It’s a structure that supposedly puts the burden of proof on the “pro” side of the argument. In a trial the prosecution is the pro side: its proposition is that the defendant is guilty of a crime.

Having assumed the burden of proof, the pro side is given the last word—a closing argument that is intended to “ring in the jurors' ears,” to resonate throughout the deliberations so that the side with the greatest burden is given a bit of a break and by the end all things should be equal.

Chess is like that, too. It begins with white’s move, but black is not only permitted, it is required, to respond immediately. The rules of the game are intended to keep all things equal for as long as possible until a clear winner emerges.

The problem is that in both chess and criminal trials modern technology has intervened. In chess, supercomputers are now programmed to calculate all the possible moves, permutations and combinations of moves, and all possible outcomes. An objective observer of a game (a juror) between a human and a machine anticipates the machine will win. Watching a chess match between a human player and a computer is a very different experience from watching a match between two people.

Jurors who observe a criminal trial anticipate that the prosecution will win if it brings technology into the courtroom. The mere mention of DNA implies certainty as to the identity of the criminal. There can be no reasonable doubt in such a case.

The burden of proof has shifted from the prosecution to the defense. But the rules of the game have not changed in 2500 years. The prosecution still always gets to move first and last.

(I have some thoughts on how the defense can regain parity, but I will save that for another post.)

        

When I think of murder mysteries about American Indians, I think of Tony Hillerman’s novels, set on a New Mexico Navaho reservation. New Mexico is not one of the states that assumed partial legal jurisdiction over reservations within its borders under a 1953 federal law known as Public Law 280.

Because New Mexico has no legal jurisdiction over the Navahos, Hillerman was able to make his protagonists tribal cops. In other states, reservations usually must rely on state and county law enforcement and courts—but not always successfully.

In a few states, reservations provide their own criminal law enforcement and criminal courts unless the federal government steps in, which apparently it tends to do, especially when women, children, and other especially vulnerable people are involved (family court issues), when a capital crime has been committed, or when a federal law has been violated.

Sidebar: Civil law issues are particularly murky on reservations. For the most part, civil issues within the tribes are handled by tribal courts, but, when a non-Indian is involved, the jurisdiction is often disputed. I suspect this is one of the reasons so many tribal leaders these days are lawyers (more later).

What Goes Wrong on Reservations?

In 2004 the Bureau of Justice Statistics published a study of justice in Indian Country (with statistics for the years from 1999 to 2002). It claims that Indians are victims of crime far more often than any other group. It also notes that about 15% of the inmates in federal prisons are Indians, even though Indians comprise only about 1% of the nation’s population.

Sidebar: A few days ago I stumbled across a pre-publication report that claimed these statistics were grossly wrong, primarily because many Indians do not self-identify as such. The pdf of the report has since disappeared from the web (or I can’t find it, in any case). So, while I suspect this is true, I have only the BOJS study to refer to now.

The upshot of the BOJS report is that reservations have inadequate funding for law enforcement. It urges further research to determine how the government can improve the situation.

Much as I like data collection and statistics, I am extremely skeptical of any such venture, because I don’t believe the federal government has any idea what Indian Country is or how many tribes there are or how many people are really American Indians “entitled to federal benefits.” If they did, they would post a list of reservations, tribes, and their populations on the Bureau of Indian Affairs website.

The most thorough information I have found is at WikiPedia: http://en.wikipedia.org/wiki/List_of_Indian_reservations_in_the_United_States#Reservations

But I defy you to read that article and tell me how many Indian reservations there are on federal lands versus reservations on state lands or how many tribes there are.

And if you read the BOJS study (above) I defy you to tell me which reservations are under federal criminal jurisdiction, which are under state criminal jurisdiction, or which are entirely under tribal criminal jurisdiction.

Juvenile Justice on Reservations

One statistic is particularly troubling and confusing—juvenile justice and detention: “Table 34. Tribal juvenile jail capacity, number in custody,offense seriousness, and staff, by State and tribe, 2002.” According to the study, in 2002 almost 200 juveniles were being held in a tribal detention center,  of which about 10% were arrested for serious crimes. There are 70 jails in Indian Country managed by tribes and the Bureau of Indian Affairs, of which 10 are designated as “juvenile detention facilities.”

By this the BOJS means, I assume, that the jails are in no way under state jurisdiction. As a result, Indian juveniles are not subject (apparently) to prosecution as adults in state courts. So, a juvenile who commits murder or violent rape must be released into the general reservation population at age 18 or 21, I suppose. Since recidivism rates are high on reservations, most such individuals are likely to offend again. This could be one of the many things that go wrong on reservations.

Fundamentally, the treatment of school-age American Indians is what really goes wrong. Opportunities for a high-quality education are severely limited on reservations. According to the Manhattan Institute, only 54% of American Indians graduate from high school and only 38% are college ready at the time.

Sidebar: I question the 54% high-school graduation rate. Elsewhere I have read that only 50% of all students graduate from high school. The Manhattan Institute in the same article claims that 70% of “all high school students” graduate. So I suspect the American Indian statistic also refers to “all American Indian high school students” who graduate, which means there is a percentage of American Indian children who drop out before they even reach high school.

Just as troubling is the existence of “tribal colleges.” For decades other minority colleges have solicited other races. For example, you will be hard-pressed to find a college that identifies itself as a “black college.” Instead, they call themselves “historically black.” Any college that touts itself as serving only a single community has no place in higher education. A good college certainly may be founded to promote research into and learning about a specific culture or creed, but a ghetto focus does not empower learners.

That’s why it’s a miracle that in 2002 less than 200 American Indian juveniles were in jail. Half the juveniles on reservations are dropouts. 25% or so of reservation high-school graduates are not ready for college, which probably means many reservation high-school graduates can’t get into any college other than a tribal college.

Which brings me back to Tony Hillerman. . .

Hillerman did not identify himself as an American Indian, although in photographs he looks as if he must have Indian ancestors. His biography parallels my father’s: both were born about the same time in Oklahoma, both graduated from high school there, went to the University of Oklahoma, joined the army and fought in WW II, and then returned to graduate from college. My father, too, did not identify himself as Indian, even though he knew his mother was Cherokee/Choctaw.

Both men escaped Indian Country through education.

        

American Indians are not ordinary American citizens who enjoy the same protections available to their fellow citizens within the justice system. Legally (it seems to this non-lawyer) American Indians are a defeated, enemy nation whose citizens are now held captive—just like the “detainees” at Gitmo.

Sidebar: No, I don’t want to get into a discussion of the Gitmo mess, except to say that the federal government has made a mess there, just the way they have made a mess of Indian Country. And now it sounds as if they’re going move the mess into my backyard in Illinois.

The history of the war between the United States and the Indians is legendary. In the end, the U. S. won the war and signed a series of treaties with the defeated enemies, that is, the tribes. Today, the reservations and residents of mythical “Indian Country” are governed by the terms of these treaties; and this very fact proves the Indians’ status as a defeated nation. (Just look up the definition of a treaty at a website, such as The Free Dictionary.)

The fact that American Indians were not “treated” as citizens for most of their relationship with the U. S. government is proven by the fact that they were not given the right to vote until after World War I, even though the 15th Amendment in 1869 gave the vote to every other adult male citizen of the United States, regardless of race or ethnicity: in 1924, Indians received the right to vote through an act of Congress, “The Citizenship Act,” not by an amendment to the Constitution.

Why didn’t the 15th Amendment apply to American Indians? Because they were not “citizens of the United States;” they were citizens of Indian Country.

What is Indian Country?

Indian Country is a legal fiction of the federal government: it includes reservations, non-Indian property inside a reservation, Indian “allotments” held in trust by the federal government both on and off the reservations, and associated Indian “communities.”

Of course, you have to ask what the definition of an “Indian tribe” is. As www.duhaime.org’s Legal Dictionary says, “there is no single definition of what an ‘Indian’ tribe is in the United States.” As it now stands, the federal government officially recognizes a list of so-called tribes. Membership in the tribes is determined by a governing tribal organization, which can include and exclude anyone they like or dislike.

Indian Country is federal land—for the most part. That means the federal government has complete jurisdiction over them; the states, counties, and town governments have no jurisdiction (sort of). However, in 1953 the federal government caved in to state pressures and granted the states some jurisdiction over Indian Country through a law known as Public Law 280.

Public Law 280 0f 1953

According to Jerry Gardner and Ada Pecos Melton, Congress passed Public Law 280 because California claimed that the reservations within the state were lawless and a danger to non-Indian neighbors. Of course, what California and several other states really resented was that reservations were not subject to any state laws and did not pay taxes.

Under Public Law 280 five states (and later Alaska when it became a state) were granted complete jurisdiction over reservations within their borders. Several other states were granted the option of complete or partial jurisdiction. (Utah was one of these optional states; its decision to take jurisdiction over reservations there had at least one good effect, namely, Utah had to give Indians the right to vote in state elections.)

However, not every state has any reservations within their borders—but almost all have some Indian Country. For example, Oklahoma (the former “Indian Territory”) has only one reservation, as far as I can tell (it's difficult to find a definitive list of reservations by state), but Oklahoma is not covered by Public Law 280. The Cherokee Nation (headquartered in Tahlequah, OK) has no reservations anywhere.

As Gardner and Melton point out, this is a chaotic situation, and chaos does not promote justice anywhere, and certainly not in a mythical non-place like Indian Country.

        

Recently this blog has been haunted by some “comments” that are possibly spam but possibly simply illiterate conspiracy theorists. My only recourse has been to shut off comments on current posts—but I can’t shut off comments on all past posts with the “flip of a switch.” As a result, these pesky comments keep coming.

In hopes that I can forestall future comments on the topic of school shootings I caved in to a comment request to research them, and now I will write briefly about this topic. I hope this will exorcise these comment demons.

Conspiracy Theory

In the late 1990s, when the frequency of school-shooting rampages was at its peak, my over-heated fiction-writer’s imagination conceived of a conspiracy theory. I was watching a news video of the aftermath of one of these crimes: squad cars and ambulances were amassed in front of a school; parents crowded around; and then a man walked past the camera and seemed to say something to the lens. The microphone did not pick up his words, but it looked to me as if he said, “It’s going to happen again.”

And of course it did.

The TruTV website has an interesting article on the topic: “School Killers,” by Katherine Ramsland. It discusses not only the history of these nightmarish crimes but also several psychologists’ theories of what causes violence in children. Please read it.

A couple of offhand comments in Ramsland’s article may lend credence to the conspiracy theories. There is a hint, for example, that the Columbine shooters were part of a wider “network” of some sort. Elsewhere in the article, Ramsland notes that one self-styled shooter wannabe claimed to be “active in the right-wing.” Several school shootings had Nazi overtones. Most school shooters were assisted by parents, other adults, or friends in obtaining lethal weapons.

Given these “facts,” it isn’t all that far-fetched to make the leap from assigning the blame to failures of society, all the way to believing in a conspiracy theory.

Organized Rings of Child Exploitation

The murder of JonBenet Ramsey is thought by some to have been inspired by or instigated by child pornographers: when John Mark Karr was under suspicion, I heard a private detective say on the air that he was on the trail of a child pornography ring. Madeline Mccann’s parents are convinced their daughter was kidnapped by pedophiles. And, sadly, these are not baseless conspiracy theories. The FBI devotes a considerable amount of its resources to preventing and solving crimes against children by organized criminal gangs.

With regard to school shooters, one of the first suspicions of both law enforcement and psychologists is that the shooters were themselves victimized by adults at some point in their lives, probably by their parents. It’s difficult for most people to give the parents of shooters the benefit of the doubt, if for no other reason than we all hold parents responsible for properly parenting their children. And  when the parents are somehow well-connected politically or are wealthy or are professionals, such as doctors or lawyers, we are prone to feel that the police exonerate them too readily and possibly corruptly.

So, of course it is possible that powerful conspiracies are behind some or all of the school shootings. But the best research to date indicates that childhood violence is the end result of years of anti-social behavior that every adult ignored. It is also true that child-exploitation rings do exist—and they always seem to be able to get away with murder. When is the last time you heard of a conspiracy to exploit children being thwarted?

        

Something happened to me yesterday that reminded me once again that not only is life unfair (as Pres. Kennedy said) but life is also unjust. Justice is something people have to bestow on one another.

The “justice system” does not bestow justice. The government does not bestow justice.

The not-guilty verdict in the murder trial of Sharron Chason proves that only people can bestow justice—and also that people are often less just than random chance.

Ms. Chason was hounded into court by vindictive relatives and friends of her husband. Had her circle of friends and family been larger than her husband’s or more powerful, I have no doubt that the medical examiner’s office would never have been called into the hospital while her husband was still alive.

I wonder how many people have relatives and in-laws who are willing to go to such lengths to hurt them.

I had a grandmother who did everything but have my father thrown in jail for marrying her daughter. My maternal grandmother was a racist. My paternal grandmother probably was, too, but she had the misfortune of being Cherokee/Choctaw.

It’s a mistake to think that only whites can be racists or can be unjust. The Cherokees have a long history of racism (I don’t know that much about other tribes, so I can’t say whether this is true of them). Though the Cherokees make much of the sad Trail of Tears episode, the fact is that they are as much to blame as Andrew Jackson. Corrupt tribal chiefs sold them out in expectation of receiving vast tracts of land (Indian Territory). What’s more, the Cherokees dragged along with them on the march from Georgia to the Mississippi their own black slaves.

That’s right. The Cherokees owned slaves in Indian Territory.

And if you look at photographs of those early Cherokee settlers, you will probably find as many blue eyes among them as brown.

It’s no accident that now there are no Cherokee reservations in Oklahoma—the end of the Trail of Tears. The only Cherokee reservations now are in the Carolinas (where a few Cherokees were left behind.) The Cherokees of Indian Territory understood well the importance of private property. They owned the land where they lived. They owned slaves to work the land.

The other tribes were duped into giving up the most fundamental right granted in the Constitution: the right to private property. Private property is the source of privacy and liberty. The other tribes are, as a consequence, now confined to reservations (federal land, not private property).

        

What is “this country?” Not “Indian Country,” but the country in which we live. How is it defined?

Is “this country” the fifty states? Does “this country” include the territories of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, the Northern Marianas, and the “Minor Outlying Islands”? (Honestly, has anyone who never served in the Navy ever heard of some of these places?)

I suppose most of us would include all the land inside the borders of any one of the fifty states as “this country.” And I also suppose most of us assume that the Constitution and Bill of Rights protect residents who live in this country.

Well, it turns out that the law of the land does not apply to everyone in “this country.” The Constitution and Bill of Rights only apply to American Indians if and when the federal government declares that they do.

The federal lands of the national parks—which are not subject to state laws—are “this country,” even though they’re outside the states’ jurisdiction. And the federal lands of the Indian reservations, which also lay within the borders of the states, are also “this country,” but they often are not governed by state law either.

Sidebar: A “reservation” is not a “territory,” like Puerto Rico. The residents of territories are entitled to send delegates to the political parties’ conventions. The residents of reservations are not. Instead, they participate in federal elections through the states’ political parties—even though in some instances the reservations are not otherwise governed by state law.

But not all of “Indian Country” lies within the borders of any state. Indian Country isn’t even a physical location, a place, as most of us think of places. Nor is it a nation. It’s just a “country,” and it is governed almost entirely by federal, not state, law.

Justice for American Indians

Sidebar: Don’t call me a “native American.” The word “native” sounds like a naked savage to me. I’m very proud of my Cherokee/Choctaw heritage—what little I have been able to learn about it because my Cherokee/Choctaw grandmother died denying she was anything but lily white. One thing she and my father were very proud of, though, was that the Cherokee/Choctaw are called “civilized tribes.” Go figure.

The laws of this country governing reservations, Indian tribes, and citizens with Indian ancestors are arcane. In brief, the way I see it, American Indians don’t receive equal justice under the law.

Now the federal government has agreed to settle a long-standing class-action lawsuit against an agency of the Department of the Interior, a suit known as Corbell v Salazar. The “class” suing the government is the class of so-called “native Americans.” Not all of these plaintiffs live on reservations. Many of them, if not most, are—like me—Melting Pot Americans who will not benefit from the settlement.

The Corbell lawsuit began over a decade ago as an attempt to expose the corrupt Bureau of Indian Affairs’ financial mismanagement of Indian reservations on federal lands. And I am sure the tribes on reservations are owed the billions of dollars the government now proposes to pay them. It seems like justice, I suppose. Or maybe like charity.

Or does it? Isn’t this just a BandAid that further strains the American taxpayer (including American Indian taxpayers) at a time we can ill afford it?

Will the government change the way it “manages” Indian Country from now on? No. The whole reservation system is broken.

Sidebar: The same people who have decided to give these paltry “reparations” to American Indians for past cruelty and crimes also have decided not to give reparations to African American descendants of slaves. I don’t understand this. Is it because we now have an African-American president who is not the descendant of slaves?

The Indian Vote?  

Do you know when “native Americans” got the vote? I bet you think they were given the right to vote by the 1869 15th Amendment, which gave emancipated slaves the vote. Well, you are wrong. Native Americans did not even get the right to vote when women of all other races did in 1920. No, American Indians did not have the right to vote in federal elections until 1924—and not in every state’s elections until (in some cases) 1956.

That’s why so many American Indians and their descendants do not “self-identify” to the Census Bureau. If my grandmother had admitted she was Cherokee/Choctaw in 1920, she would not have been eligible to vote in Oklahoma (former “Indian Territory”). And when my father was born if his birth certificate had listed him as anything but Caucasian, he would not have been entitled to the right to vote when he reached his majority. If my grandparents had chosen to identify my father as non-white on his birth certificate, and if I had been born in Utah instead of Michigan, I suppose I might not have been identified as white, either.

The federal government’s token payment to mythical “Indian country” is absurd. There is no amount of money on earth that can solve the problems of American Indians without a complete rethinking of the whole concept of a “reservation” and “Indian country.”

Where do you think this money is going to go? What makes you think the politicians at the Department of the Interior now know how to spend this money? Will the money be used to build first-class schools on the reservations? Or will the money end up expanding gambling on the reservations?

Chalk Ghost—Co-Winner of 2009 TextNovel Grand Prize

I’m in the throes of finalizing my manuscript of a paranormal mystery novel, Chalk Ghost. The protagonist, Lily-Rose Whitehorse, is an American Indian college student studying forensic accounting, because she knows how badly the federal government has mismanaged tribal finances and defrauded the reservations.

For this reason I am currently studying the history of the reservation system and the laws governing the reservations. The latest twist in this sad history is the federal government’s settlement of Corbell v. Etc. (The defendant has changed with each new administration.)

In my not-so-humble opinion, this settlement is demeaning. “Native Americans” are not an endangered species being protected on federal lands. They are being confined and deprived of the rights of citizenship.

Justice has yet to be done.

        

In the Tennessee trial of Sharron Chason the jury was able to send written questions to the judge, but like all juries they only got to speak when they delivered their verdict: not guilty.

Serving on a jury is incredibly frustrating. The only time you get to talk in the courtroom is during voir dire—and then it’s only to answer personal questions you don’t want to answer.

Few states permit jurors to ask questions of witnesses (as Tennessee does), so a juror usually has to sit there biting her tongue when the lawyers don’t ask the obvious questions.

You sit for hours and hours in silence listening to a long string of inarticulate, ill-informed, prevaricating,  angry, biased, and sometimes just plain stupid witnesses. Then the lawyers try to tell you what to think. And finally the judge reads you a long, legalistic set of instructions and a counterintuitive verdict form.

The first time you get to talk about the trial—about what you think and how you feel—is when you go into deliberations. Unfortunately, by then you probably would rather not talk to the eleven strangers locked in the room with you.

The only time the jury really gets to speak is through its verdict. But a verdict isn’t a nuanced message: a verdict generally amounts to little more than “guilty” or “not guilty.” And that’s why jury duty is frustrating.

Sharron Chason’s attorney, Dan Warlick, said something in his closing argument that perfectly expressed the way I felt as a juror: he said the case had been “dumped in [their] laps.” I thought it was particularly apt in this trial, because the State of Tennessee’s many investigators had neither been able to say definitively that Mr. Chason was a homicide victim nor even definitively what drug it was that resulted in his death.

This is one reason, I believe, that so many people want to avoid jury duty. We all know that a criminal trial only takes place when the system fails. The police have failed to prevent a crime. The prosecution has failed to negotiate an equitable plea agreement. The defendants—likely—believe they can wiggle out of it or feel (rightly or wrongly) they haven’t done anything to deserve punishment.

Only when the justice system fails in every way does a jury have to play god. That’s an onerous job for most of us.

        

Yesterday in the TN murder trial of nurse Sharron Chason, a nurse tending to the comatose Mr. Chason testified that the defendant told him (the nurse) not to give out information about the patient’s condition to visitors. A friend of the patient also testified that Mrs. Chason was not crying when he visited the hospital room. Both were witnesses for the prosecution—supposedly damning testimony.

Having stood by the bedside of a dying relative—without crying—and having tried to stop hospital workers from giving out information about the patient to non-family visitors, I must side with Mrs. Chason, even if she is responsible for her husband’s death (which has not yet been proven).

First, a loving person does not cry during such a crisis. Your tears come much later.

Second, if this sad, stressful situation ever happens to you, I think you may be shocked by the way hospital workers—especially nurses—behave.

Sick Room Visits from Strangers and Busybodies

There is no such thing as hospital security.

Recently, much has been made of the right of spouses to attend the bedside of spouses as opposed to the supposed prohibition against domestic partners attending the bedside. But hospitals let anyone and everyone into a sick room, even into intensive care. At most, a visitor must ring a bell or knock on the door.

In many instances anyone can simply walk into a hospital off the street and into any part of a hospital they choose.

Sidebar: It’s a wonder more babies aren’t stolen out of the nursery. In fact, lax hospital security is ripe for fiction: I’ve often thought about writing a murder mystery in which a killer simply walks into a hospital room and commits a murder in some clever way—like administering unnecessary diabetes medicine to an already comatose person, because she’s angry that he inherited the family fortune.

Once a visitor is at the bedside of a dying person, she is continually addressed by nurses and orderlies who express their opinions of the patient’s condition, treatment, and prognosis. The witness-nurse in the Chason trial, for example, who claimed nurses are only permitted to say the obvious to a visitor may have been telling the truth about the policy, but not about the practice.

In my experience, I tried to stop nurses from telling visitors false information, which those people then took outside the hospital and repeated to other people—many of whom eventually believed my dying relative was on the road to recovery.

The Jury

I’m struck by the essential unfairness of this testimony against Ms. Chason. The nurse who testified against her was clearly trying to make himself look good and knew no one could contradict him. The visiting friend also may have had cause to want to deflect suspicion from himself that from time to time he offered drugs to the deceased.

How will the jury view this? Must jurors have had experiences similar to mine to find this testimony as meaningless and mean-spirited as I do?

        

Yesterday following a brief voir dire, a TN jury began hearing the trial of Sharron Chason, a nurse accused of murdering her husband (TruTV’s In Session is covering the trial live). It calls to mind the TN trial of Raynella Dossett-Leath, another nurse accused of murdering her husband.

Sidebar: I have no idea how many nurses each year are charged with murdering their husbands. The only reason I happen to know of Raynella Dossett-Leath is that her trial was also covered live on TruTV and Tennessee is among the few states that permits video cameras in the court. For all I know, nurses are suspicious characters everywhere.

In the Dossett-Leath trial, a nurse was accused of trying to poison her husband, and then, when he refused to die, of shooting him and staging his suicide. Ms. Chason, though, is accused of murdering her husband by unknown means. Not only does the state not know what killed Mr. Chason, but the medical examiner did not even determine the death was a homicide: the deceased’s cause and means of death were “undetermined.” (In many counties, I suspect this would be a coroner’s jury, not a murder jury.)

The jury in the Chason trial is being asked to believe the defendant killed her obese husband (who also had a faulty heart) because he snored.

Let’s face it, this trial is what used to be called “a witch hunt.” It’s the kind of murder trial that can only be staged to vilify an unlikeable woman when her well-liked husband dies suddenly. The same was true of Raynella Dossett-Leath. Ms. Dossett-Leath, though, was unlucky enough to face TN medical examiner Darinka Mileusnic-Polchan, who has the uncanny ability to tell not only the trajectory of a bullet, but also to intuit the sequence in which bullets were fired and whether or not it was possible that the shooter “intended” to kill a person. Thankfully for Ms. Chason, no bullets are involved in this supposed murder.

Another similarity between the two cases is the family-feud aspect. In both trials, the victim’s family appears to have been feuding with the defendant for many years. I don’t know if this is a Southern sort of thing. My Southern family certainly has always had a contentious relationship with in-laws. But even if it isn’t common, I hope the Chason jury will take in-law witnesses with a grain of salt.

Women are rarely charged with murder. But the motive usually involves a love triangle or money. It’s a rare female murderer indeed whose motive is snoring.

        

In his closing arguments in the trial of Nevada v Clermont, defense attorney Mace Yampolsky said something that struck TruTV legal commentators as masterful, but which struck a nerve in me, a former juror.

He asked the jurors to imagine themselves at a cocktail party in a year or so where they discuss the fact that they served on a jury in a kidnapping case. He intended to contrast the common-sense understanding of how heinous a crime kidnapping is with what his client did.

Instead, I felt he highlighted the impropriety of his client’s behavior. No juror in a trial involving the exploitation of a child wants to be told to imagine themselves at a cocktail party—even jurors in Las Vegas.

Furthermore, no juror wants to imagine having to talk about the experience in casual conversation. Being a juror is a stressful experience. A conscientious juror has no desire to gossip about the experience or to bask in the lurid glow of a trial’s notoriety. No matter what the verdict, someone will always fault the jury.

Mr. Yampolsky’s rhetoric tells me he has no idea how it feels to be a juror, especially a juror who has never before been inside a criminal courthouse.

However, I blame defendant Elaine Clermont for inspiring her lawyer’s inappropriate rhetoric. I suspect she’s the one who wanted to bask in a lurid glow of notoriety. Her intent from the get-go (as the prosecution pointed out in its closing) was notoriety. In her bizarre blog, Clermont likens herself to Martin Luther King and styles herself “an activist.”

The problem with Clermont’s rhetoric is that she doesn’t understand what civil disobedience is: she needs to read Thoreau. You have to be willing to take your punishment to make your point. It isn’t ethical to exploit a child to make a point. It isn’t ethical to use the justice system as a soapbox. Stand on your soapbox and then go to jail to make your point.

        

TruTV In Session’s broadcast of the verdict in the case of Nevada v Clermont for kidnapping provided excellent analysis of what went wrong before and during the trial. Among the most interesting facts the jury did not know during deliberations (anchor Rikki Klieman revealed) was that the prosecution offered Clermont a plea deal, which she refused.

Clermont apparently maintains to this day that she did nothing wrong; instead it was the school district that was at fault and was seriously endangering children by its lax security system. She was only trying to expose the risks by notifying the media before she returned a lost little boy to his school.

The more I hear about the situation that resulted in Clermont’s arrest for kidnapping the child, the more I’m convinced she was grossly overcharged. But it’s also obvious that what she did was wrong: no one other than the boy’s mother had a right to restrain him even an instant (let alone 2 hours) for any reason.

The Jury Spoke

The jury found Clermont guilty of conspiracy to commit kidnapping and of false imprisonment.

The first of these verdicts (possibly) resulted from the testimony of Clermont’s supposed conspirator, another school district mother named Laurinda Drake, who was previously acquitted of conspiracy. However, the jury apparently was not told about the acquittal. (This is the sort of withholding of information from a jury that I cannot understand.)

The second verdict is completely understandable (by someone who once was a juror in a situation somewhat like the one the Clermont jury faced). The jury could not find her guilty of kidnapping, because she did not commit kidnapping. Everyone with common sense can see that.

But she did restrain and use someone else’s child in the cause of furthering her point of view—she used a child for political purposes. Given a choice of acquitting her (and committing jury nullification) or convicting her of a lesser charge, that’s what they did.

Jury Rhetoric

I often write about the rhetoric lawyers use in front of a jury, but there’s also a rhetoric that jurors use to communicate with the court—and I suspect few lawyers or judges ever think about this.

In most cases, the only rhetoric a jury has available is the verdict. When lawyers don’t understand a verdict, they call it “jury nullification.” But it rarely is a nullification of the law: it is only a nullification of an inappropriate charge or indictment. The O. J. Simpson murder verdict, for example, was the jury’s way of saying they thought the cops were racist and had targeted Simpson unfairly.

In “my” case, we the jury found the defendant not guilty of kidnapping (but guilty of aggravated assault), because he did not kidnap his victim. Afterwards, the judge came into the deliberation room to find out how we could have been so stupid. One of my fellow jurors asked her, “Why didn’t you just offer him a plea deal?” She replied, “We did, but he wouldn’t take it. So kidnapping was the only way I could sentence him to thirty years.”

Is that justice? No.

Here’s what both juries were telling both judges and all the lawyers: don’t charge our fellow citizens with serious crimes unless they committed those crimes, and don’t let a criminal go free on a technicality, namely, the legalese of a criminal statute.

If the jury had found Clermont not guilty of all crimes they would have been letting her go on a technicality, namely, that the literal law of kidnapping was not committed.

Both the prosecution and the defense miscalculated. The defense made a big mistake by not accepting a plea deal—it looks like Clermont wanted to use the jury for her political purposes, too. The prosecution was absolutely wrong to over-charge her in the first place—they could have charged her with a form of child endangerment, for example, and still have achieved their objectives.

        

Michael King—sentenced to death.

A few issues slice through “party lines.” The death penalty is one of these.

It doesn’t matter whether politicians profess a liberal or a conservative philosophy, they often support the death penalty, either because their constituents do or because the Constitution permits it. Yet when it comes to other issues involving life and death these politicians manage to have it both ways: most politicians can figure out how to argue for the death penalty but oppose abortion or vice versa.

When confronted with this inconsistency they usually retreat behind a misquote from Ralph Waldo Emerson: “consistency is the hobgoblin of little minds.”

Emerson—of all philosophers—would recoil. He knew that consistency in certain things is integrity, not foolishness or evidence of small intellect. What Emerson really said was: “A foolish consistency is he hobgoblin of little minds. . . .”

Not an Expression of Community Outrage

Some politicians have supported the death penalty as an issue of society’s right to express moral outrage at certain crimes. This is clearly no justification for a state to execute its citizens. It is an expression of the rule of men, not of law. The proper response to crime is not emotionalism but the application of justice.

Community outrage was once used as the justification for lynching black men accused of raping white women. Community outrage was once used as the justification for burning insane women at the stake.

Not a Constitutional Issue

Some politicians have supported the death penalty because it is not expressly forbidden by the U. S. Constitution. But the Constitution once permitted slavery and did not permit women to vote. We amended the Constitution.

An Issue of Tyranny

In the 21st century, the death penalty represents the worst vestige of ancient state tyranny over individuals.

A government that has the right to determine who among its citizens deserve to die has the right to do whatever it wants to the whole citizenry.

You may think that murder is the only crime that results in the death penalty in the U. S. But several federal crimes other than murder are subject to the death penalty:

• treason,
• espionage,
• kidnapping related to bank robbery,
• and certain drug-smuggling-related crimes.

It’s even possible to be sentenced to death for causing the death of a fetus in the commission of a separate crime. And there’s nothing in the Constitution to prohibit Congress from expanding the list of capital crimes even further.

Take a look at the definition of “treason” at LectLaw:

The Constitution of the United States, Art. III, defines treason against the United States to consist only in levying war against them, or in adhering to their enemies, giving them aid or  comfort. This offence is punished with death. By the same article of the Constitution, no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.

Who defines “enemies” of this country? The government does.

Let’s Change This

I’ve decided there is a small thing I can do to further the cause of abolishing the death penalty: I can seek out politicians who wish to abolish it and help them get the word out in the coming 2010 elections. I can also help expose the financial costs of the death penalty in states such as Illinois and the toll on the idea of justice the death penalty takes.

So, I’m starting a blog category for politicians of all parties who wish to abolish the death penalty in their states: “Politicians against Death”:

• The first such politician I wish to acknowledge is an IL Republican running for Governor: Dan Proft.

His stand against the death penalty came to my attention after I learned that two other Republican candidates (Jim Ryan and Bob Schillerstrom) were strong supporters of the death penalty.

Both Ryan and Schillerstrom are former state’s attorneys from DuPage County and were involved in one of the most notorious, egregious miscarriages of justice of all time: the false prosecution of Rolando Cruz, Alex Hernandez, and Stephen Buckley for the murder of little Jeanine Nicacico in the early 1980s. Please read more about this injustice in Scott Turow’s discussion of his book: Ultimate Punishment.

I think I’ll also add a category for “Politicians of Death” and begin with Ryan and Schillerstrom.

        

According to FindLaw.com, Nevada law permits a single person to be convicted of conspiracy. As counterintuitive as this is, it explains how Elaine Clermont could be charged with conspiracy to kidnap a child even after her co-conspirator Laurinda Drake was acquitted of all charges.

And the reason Elaine Clermont was charged with conspiracy in addition to kidnapping is that additional penalties are available to a sentencing judge. Yes, it’s true: conspiracy to commit a crime is a crime even if the crime is never committed. We all understand why this is necessary. No one wants the cops to hang around a gang of conspirators waiting for them to commit the crime before they arrest them.

But the idea that a woman conspired to commit a crime when the incident occurred only because a child happened to wander away from a school is ludicrous.

The jury that heard this case obviously had no idea that Ms. Drake—who testified in the Clermont trial—had been completely exonerated.

And it’s also clear to me that the reason the state prosecuted Drake first was because they had a better case against her for kidnapping than they did for Clermont. It was Drake who literally picked up the “kid,” put him in her car, and drove him fifteen miles away from the school where she knew the child belonged. The prosecutors expected to be able to put Drake on the stand against Clermont in return for a reduced sentence and thereby gain a conviction of Clermont by extension.

I guess the law should permit a prosecution to use one conspirator against the other. But I don’t understand why the defense can’t use an exonerated conspirator to support their case.

(BTW: This is exactly the sort of case in which a jury should "nullify" a prosecution. That's what juries are for. It's also why every citizen should be willing to serve on a jury.)

        

The “person of interest” in the Lakewood, WA, police assassination case (a.k.a. suspect) was a man with a long record of violent crimes and repeated releases into the public despite his multiple convictions. He was also free on bail after being charged with several crimes, including child rape.

This case stands in sharp contrast with the case of Elaine Clermont, the Nevada mother, charged with and convicted of kidnapping a child.

So, how did this guy get bail?

I used to think that bail was available only for nonviolent crimes when the accused was not “a flight risk.” Then I served on a jury in the Cook County Criminal Courthouse (Chicago). After that I understood that in the county where I live violent offenders are let loose all the time, and even undocumented aliens who can easily return to their “country of origin” are given bail all the time, despite being more than a flight risk—that is, despite being sure to flee.

Bail Bondsmen

The big part of the problem, it seems to me, is the bail-bond system.

By rights granted in the Constitution, every accused person is entitled to be released until convicted (“habeas corpus”)—unless the accused is charged with a Class A Felony (in other words, a serious crime). When an arrestee goes free on bail, though, the state is entitled to a pledge of security from the accused in the form of bail.

The amount of the bail bond seems to be entirely at the discretion of the judge who presides over the arraignment. If New York City’s bail guidelines are typical, the amount of bail required is very little and need not be cash—the judge usually must accept property as bail (I assume vehicles are typical of such property).

Bail for misdemeanors and first-offenders can be very low. Any judge who imposes a high bail in such cases has to permit the arrestee’s lawyer to justify the bail in a “bail sufficiency hearing.” Given the overcrowding of the courts, few judges are willing to spend their time in such hearings and instead require low bail.

Further shifting the risk toward the citizens of the community and off the suspect’s shoulders is the institution of the bail-bondsman: an insurance salesmen for criminals. Apparently, tradition has set a precedent that no matter what bail the judge requires, a third party can post the bail for the suspected offender (a bail bondsman). The bail bondsman loans the suspect the amount of the bail, for a fee of 10% of the total.

Sidebar: Doesn’t the bail-bondsmen in effect make the whole concept of bail moot? What I mean is—the bail system is supposed to reduce the risk that a freed suspect will skip town. The bail bondsman makes it easy for most suspects to skip town. In fact, if a criminal knows the odds of acquittal in an American court, he ought to skip town at the cost of a few hundred dollars rather than stand trial and be convicted.

Also, tradition has apparently set bail for felonies within a range of only a few thousand dollars up to the mid-five figures (higher bail is very rare). That means, though, that at most an accused person needs to pay the bail bondsman only a few hundred dollars up to a few thousand (about the value of the average person’s car). (BTW: I assume this tradition started when a dollar was worth a dollar).

Free as a Bird—Child Rapists

During the trial in Cook County in which I was a juror, the defendant was free on bail even though he was charged with a Class A Felony (aggravated kidnapping) and other violent felonies, which included the aggravated sexual assault of a 13 year old girl (in IL not a “child”). He jumped bail during the trial, and as far as I know he is still free.

In the Washington state case, the suspect was charged only with second-degree child rape—not a Class A Felony, I suppose. So Washington has a prosecutor to thank for the man’s shooting spree, just as Nevada has a prosecutor to thank for the trumped up charge of kidnapping against Elaine Clermont.

In either case, it’s hard to understand why the judge let these men go free on bail.

An Obvious Solution

• Crimes against children should be Class A Felonies that are ineligible for bail. How hard would it be for state legislatures to enact such a statute? (What in the world is “second degree child rape”? Unintentional? With consent? It boggles the mind.)
• Children should be defined by law as anyone under 17 or 18. For example, teenage gangbangers who commit violence against other teenage gangbangers would not be eligible for bail.
• Bail bondsmen should be required to qualify their clients both financially and as “risks,” just the way a legitimate insurance company does. (Insurance is all about actuarial risk tables. Clearly bail bondsmen are not qualifying their clients at all, but rather are paying bonds for everyone who asks them.)
• Bail bondsmen should be required to charge fees commensurate with the risks: the criteria should be the seriousness of the charges, the suspect’s prior arrest and conviction record, the potential sentence if convicted, and the flight risk. In other words, some of their clients should be asked to pay less than 10% and many of their clients should have to pay far more than 10%.

        

Amazon is a reader's and a writer's best friend. They have made it incredibly easy to download a copy of THE JUROR HANGS whether or not you own an iPhone or Kindle.

THE JUROR HANGS is now available for the Amazon Kindle, the iPhone (through the Kindle App and the Stanza App), and every PC through the Amazon Kindle App for PC.

        

This fall The Chicago Tribune has been reporting on the gross misuse of DNA as criminal evidence in Illinois. So much in this state is over the top that this particular issue has easily flown under the radar. But it’s time to pay attention when they report that the state plans to take DNA from your corpse if you’re unlucky enough to die here.

In less than three months Illinois will hold its next primary, and citizens of this state need to know that state legislators—many of whom are up for reelection—are morphing our court system into something beyond Kafka’s most surreal imaginings.

In an article titled “Another backlog on DNA evidence,” Megan Twohey cites State Rep. Dan Brady (Republican) as author of legislation that not only permits, but requires, law enforcement to collect DNA samples from all homicide victims, and "The idea was we'd eventually do this with victims of all types of death."

I’ll let you think about this for awhile.

        

TruTV’s featured trial is Nevada v. Clermont, a case in which neighborhood housewives were charged with kidnapping a child who attended their children’s school. The context is rather complex, but the bare facts are that a woman found a child walking by a roadside during school hours and picked him up and drove him to a friend, Elaine Clermont’s house, where he remained for two hours.

One In Session commentator remarked that it seems that when the Vegas cops arrest someone they immediately charge them with kidnapping (a reference to O. J. Simpson’s conviction for kidnapping during an armed robbery). And while this was a facetious remark, IMHO in both Nevada v. Clermont and Nevada v. Simpson, the state is and was stretching the kidnapping laws in order to “throw the book” at an unlikeable defendant.

A Kidnapping Juror

As a former juror in a trial involving aggravated kidnapping, I know that some jurors and juries resent it when the state seems to be piling on a defendant, no matter how unlikeable he or she may be. (O. J. was not only unlikeable, he had already gotten away with murder.) This is probably the reason Laurinda Drake (the driver) was acquitted in her trial.

After my jury experience, I researched kidnapping laws. It is clear that recent case law has expanded the concept from the crime we think of (snatching a person away from their normal haunts and concealing them somewhere else for nefarious purposes).

Judges first allowed the state to call any restraint in an isolated or concealed location during a crime “kidnapping.” In a bank robbery, for instance, if a robber drags a bank clerk inside the vault and then fends off the police, that is kidnapping. (I doubt that any juror would object to that.)

Once this expanded definition was accepted in case law, prosecutors began to charge kidnapping in any crime involving violence against a person along with some form of restraint (which frankly every such violent crime involves). In “my” case, the defendant allegedly dragged a teenage girl off a sidewalk and up a railroad embankment in order to sexually assault her. The distance from the sidewalk to the embankment was hammered by both sides, as was the definition of “a place.” It was ludicrous.

Justice Out of Control

A few years ago every house on my block displayed a sign indicating to children that it was “a safe place” where children could retreat or go to for help. The idea survives today at www.NationalSafePlace.org. Regardless of their motives or animus toward the school district, the defendants in Nevada v. Clermont don’t seem to have done anything significantly different than give a child shelter in a concern for child safety.

Nevada v. Clermont to me sounds like another instance of prosecutors “gone wild.” Surely there are laws on the books to cover this situation more reasonably. No one wants their children to be vulnerable to any physical assault by anyone in a neighborhood: no parent wants teachers to spank their kids or neighbors to bring kids inside their houses without their consent, but kidnapping is a serious crime, and the way things are going it’s soon going to be charged as frequently as any traffic violation.

        

Because of recent malicious spam comments, I’m forced to shut off comments for awhile. As a result, I’m also unable to post several comments to recent posts—but the comments deserve a response.

One comment concerned the “causes of Columbine” and school shootings.

Response: I can’t Google the topics you suggested, because to do so would cause Google to do two things, neither of which I wish to have them do: 1) Google would add these search terms to my personal search history—and as a result I would be forever labeled as someone interested in child pornography; 2) various law enforcement and security agencies would start monitoring this blog. I’ve already had the second of these problems happen when I made an off-hand remark about someone who was in the military.

Two comments concerned the trial of Juan Mendez, Jr.

Response: One commenter was convinced of Mendez’s guilt but expected the jury to find him not guilty, because the police investigation was shoddy and the prosecution’s case was weak. One commenter was convinced of Mendez’s innocence and considered the verdict to be racist. I disagree with both of these comments: the prosecution’s case seemed inadequate because of the shoddy investigation, but my instincts tell me he did it; and I see no evidence of racism in the investigation, prosecution, or jury verdict. I think the verdict resulted from moral outrage at the viciousness of the crime and the abuse Mendez inflicted on his wife.

        

        

The Minneapolis-St. Paul Star Tribune (11/13/09 ) reports that answering questions honestly during jury voir dire can land a potential juror in jail.

What was Judge Timothy Bloomquist thinking? Maybe he’s tired of being reelected to his post.

I have long believed that judges and state’s attorneys ought not to be elected, but, in light of what this judge did, it does make me think again. The Minnesota electorate ought not to permit judges to treat citizens who take the time to show up for jury duty so disrespectfully. I had no idea that judges were permitted to exhibit “contempt of jurors.” (But I did experience the contempt a judge had for a jury in Cook County. That’s where I learned that most trial lawyers and some judges truly resent the jury system.)

Now I’ll have to revise my quiz, “How to avoid jury duty.” The question is: what is the correct answer to the quiz question, “Can you complain about the pay and get out of jury duty?”

 

        

At the end of the day, the Mendez trial courtroom in Ft. Myers, FL, erupted in true drama: two witnesses testified in highly dramatic—and highly questionable—ways about the last moments (presumably) of victim Whitney Mendez’s life. Now the whole trial is in limbo until tomorrow morning.

I recommend the Ft. Myers www.news-press.com video archives if you didn’t see this.

This week has been an interesting court-broadcast experience. I’ve found much to admire in TruTV’s new format and much to dislike.

The Good

Since moving from NY to GA, TruTV’s In Session program has been much more informative and interesting than it was in the past, in several ways:

1. The program extends from 9:00 a.m. ET to 3:00 a.m. ET, rather than being broken into three segments; this makes it easier for me to record, skim through, and delete.
2. The anchors of In Session are both lawyers, but they don’t focus on their personal opinions (as some previous anchors did)—they focus on eliciting the opinions of their guests, all of whom have been providing detailed, technical commentary.
3. The commentary is truly information—but, on the down side, the speakers are often overly dramatic, and the points could also be provided after the fact (in true journalistic form), as opposed to during live broadcast, and still be informative.

The Bad and the Ugly

On the other hand, the short-comings of commercial TV broadcasts of trials have also become apparent:

1. Trials are interrupted at arbitrary points with lengthy, obnoxious, irrelevant commercials, including commercials for the stupid prime-time TruTV lineup.
2. Private-citizen witnesses are broadcast nationwide, when they have no desire to become national figures.

The Florida www.news-press.com website (sponsored by a Florida newspaper chain) is also streaming the Mendez trial live. They not only do not interrupt the trial with commercials, unlike CNN they don’t even require viewers to watch three commercials before the video will play. What is even more impressive, they stream the entire trial live, and then they archive each day’s session for “On Demand” replay. This—IMHO—is the way it should be done. Commentaries should be provided after the fact and in separate “broadcast” sessions.

As they used to say when TVs had a “dial,” tune in tomorrow to see if the judge declares a mistrial in Florida v Mendez.

        

In May, a researcher at Radboud University Nijmegen reported yet another link between language and the body: people who literally take a step back are more focused and clear thinking as they “approach” problems.

The“ear-witness” testimony yesterday in the Florida trial of Juan Mendez, Jr., “gave me pause,” and I decided to step back.

• The case: A young woman and her mother were discovered slashed and stabbed to death. A child in a highchair was found just outside their home, dehydrated after apparently having been left on the porch overnight by the killer. The young mother’s estranged husband was arrested (he was under a restraining order at the time of the murder), but a grand jury refused to indict him because physical evidence tying him to the crime was missing, in particular, DNA evidence. Several months later, after a witness came forward who claimed to have been on the phone with the young woman when someone broke into the house, the state’s attorney charged the estranged husband (Mendez) with 2nd-degree murder.

My “knee-jerk” reaction to this abusive husband was that he must be guilty. I’m always ready to throw an abuser in the slammer. (So even if Mendez didn’t do it this time, I won’t be too upset if he’s convicted and put away for life.)

But having heard some of the ear-witness testimony, I’m now stepping back and rethinking my bias. And once again I’m glad I’m not on this jury. As much as I dislike admitting it, I don’t think the witness was credible. Now, I’m going to be “keeping my fingers crossed” that powerful, definitive DNA evidence will be put before the Mendez jury.

Ear-witness Testimony

The witness in the Mendez trial was a waitress-supervisor at a local Denny’s. On the evening the crime is believed to have occurred, she was at work and claims to have received three phone calls from the victim, who worked at the Denny’s. (However, no phone records exist to prove this.) In the final call, she claims the victim said something about a restraining order and that she heard a man’s voice say something about the boy being his and he had the right to take him for the weekend. She claims she heard a scream and then the phone went dead. Shaken, she approached a table of cops and told them what she had heard; they told her to call a police station and gave her the number to call (not 911). The station has no record that she called them. Even after Mendez was arrested the first time, she did not come forward; instead she claims she was afraid and suffered from vivid nightmares of the call—each of which, I believe she said, helped her to recall more and more details of the calls. By the time she contacted the prosecutors, of course, the local news had been full of details about the crime and about Mendez.

This is very sad. She may have received phone calls from the victim. But she didn’t convince me, and I wonder if the jury feels the same. Can you imagine what it would be like to sit on that jury and feel in your gut that he did it—but not be able to point to specific, credible evidence of his guilt?

Real science, as opposed to forensic science, is teaching us that memory is slippery. If the defense brings on a credible neuroscientist, they can easily debunk this woman’s testimony.

Researchers have shown that memory is far from photographic, even in people trained to remember things. Memory is a product not only of immediate experience, but also all one’s past experiences. Memories can and are re-recorded and recorded over all the time. Hypnosis and drugs can change memories permanently.

And—relevant to the Mendez witness—dreaming is the brain’s means of dealing with experience; recurring dreams do not retrieve more-and-more-accurate memories, but instead less-accurate memories that fulfill a psychological need of the dreamer. (I refer you to the following popular science magazines for summaries of memory research: Discover, “Out of the Past,” and Science News, “The Mesmerized Mind” and the Oct. 24, 2009 issue on “Slumber Science.”)

My guess: if the witness did receive several phone calls that night in which the victim asked for help, but she ignored her, the witness’s sense of guilt produced the nightmares, which became so vivid that she finally called the police.

        

Today a federal medical panel, the U.S. Preventative Services Task Force, declared that women do not need mammograms before the age of 50 and those over 50 need mammograms only every other year.

To give you an idea of how scary this is: the Canadians are touting this pronouncement as validation of their health-care system guidelines.

As a woman who knows both breast-cancer survivors and breast-cancer victims, I am appalled.

Let’s face it: women are the first to be thrown under the bus whenever our right to “be secure in our persons” is at issue (that’s a Constitutional right, if you missed it). Most medical research is conducted on men, not on a mix of sexes. That’s because there are so many men in prison who are willing to become guinea pigs in medical studies. It’s also because most medical researchers are men who don’t care about women’s health.

The premise of the task force’s conclusion is that “false positive” results on a mammogram are counter-productive.

Duh? Would you rather be told by your radiologist to return to the hospital for a second screening because of anomalous results—only to be told after the test that everything’s OK—or be told by your radiologist that you have a rapidly spreading form of breast cancer that could have been caught if you had only come in for a mammogram a year ago?

Maybe this is what they mean by “health-care rationing.” Maybe women are going to be the first ones to receive the ration coupons. (When mine comes in the mail, I’m going to do what most people do with jury summons—I’m going to toss it.)

Don’t hold your breath for a similar pronouncement about prostate cancer.

This is a women’s rights issue. Don’t kid yourself. If this task force recommendation is adopted by insurance companies, we’re going to have to pay for most of our mammograms, even though the tests help to keep health-care costs down.

        

Today, as yesterday, the prosecution in the trial of Juan Mendez, Jr., (Fort Myers, FL) put “chain-of-custody” witnesses on the stand. Among these was a criminalist who detailed her findings of footprints in and around the crime scene.

TruTV’s commentators debated whether this evidence was at all damaging to the defense. Yet bloody footprints are a staple of classic detection (fictional and otherwise). Why shouldn’t they be damaging in the Mendez murder case?

Debating Facts v Opinion

I think I finally figured something out about trial lawyers: they don’t believe in facts, only opinions. Lawyers think that facts can always be disputed.

Lawyers must learn in school how to debate facts as if they were merely opinions.

In high school I, too, learned how to debate. I joined the Forensic Society (now the National Forensic League). No, it wasn’t a club for geeks who dusted their lockers for prints. It was the debate club. In that club I learned how to debate opinions—using facts to support my opinions. That’s very different from what lawyers seem to learn in school.

• Sidebar: If you look up the word “forensics” at www.Dictionary.com, you will learn that the word still means “public debate.” It does not mean something like “the science of solving crimes,” although before long I suspect it will. The most likely reason “the science of solving crimes” has become “forensic” is that “science” was injected into the courtroom by the U. S. Supreme Court in 1993 in Daubert v Merrill. In that decision the Supremes attempted to remove the possibility of “junk science” creeping into evidence. I think they actually did something else. It’s the “law of unintended consequences” at work again.

Forensics in Court

The Supremes attempted to interject scientific facts into the system—with the best of intentions.

Guilt or innocence is fact. Unfortunately, trial lawyers treat the issue of guilt or innocence as if it were an opinion, not a fact.

All that can legitimately be debated in court is the validity of the evidence of guilt or innocence.

What most of us think of as forensic science is not science: it is craft. I’m not going to call it junk, because much of it is based on interesting and significant phenomena, which can be used by detectives to track down the bad guys—such as bloody footprints.

Forensic-science evidence is only as good as the expert witness who interprets it, though. Interpretation is an art, not a science. (I would have called forensic science an “art,” but that has frivolous connotations, rather like the art of writing fiction.)

Interpretation is very subjective. And some types of analytics are so subjective as to be junk science. Take “footwear-impression analysis,” for example.

The Forensic Science of Footwear-Impression

In the next few days, I expect we will hear from an expert in bloody footprints in Florida v. Mendez. This may well be someone from the FBI Lab. He—or she—will attempt to identify the maker of the shoes that the killer was wearing and to match the size with Mendez’s shoe size. It won’t really mean a thing: the identification will be evidence, but not fact and certainly not proof of anything other than someone walked through the blood of his victims.

• Sidebar: I predict that when the expert makes a “match” he won’t say he made a match. He will say he “cannot exclude the defendant’s shoe size” as the size of the prints, and he will do so “to a reasonable degree of scientific certainty.” (Give the jurors a break!)

Unfortunately, as in the first O. J. Simpson trial, unless the shoes are unique (e.g., rare, expensive, manufactured only in the first half of 2006) and the prosecution has a photo of Mendez wearing such a pair of shoes, then the expert’s analysis will be meaningless.

Florida v Mendez

In fiction, the detectives who first investigate a bloody crime scene would “follow the bloody footprints” to the killer. (Try a Google search—it’s a staple of mystery novels.)

An abusive husband who was under a restraining order would be my first suspect. I would get a search warrant for his house and person—seize all his clothes—search his sink drains for blood evidence. If his only pair of sneakers was missing, I would ask him what happened to them; and if they were sitting in his closet, I would seize them. Wouldn’t you? Apparently the Florida cops didn’t in the Mendez case.

So, the lawyers on TruTV and the ones in court may continue to debate the meaning of the bloody footprints—whether or not the jury will care—but “footwear-impression analysis” isn’t science.  Face the facts. The only bloody footprints that count are the ones that lead directly to the murderer.

Oddly enough, in Florida v. Mendez, apparently the only place the bloody footprints led was to the porch where a toddler in a highchair spent the night outside.

I suspect these are the only bloody footprints about which the Mendez jury will deliberate.

        

On its first day, the newly re-launched TruTV “In Session” is broadcasting live coverage of the trial of a Florida man, Juan Mendez, Jr.,  for the second-degree murder of his estranged wife and mother-in-law in 2006.

• Sidebar: Much as I would like to supply you with a link to an In Session blog article about the trial, it appears that TruTV has not made a smooth transition from New York to Georgia. Neither does CNN’s streaming video include coverage of the trial, but fortunately the Fort Myers news-press.com does (full, live streaming video).

TruTV’s Jean Casarez reported today that the reason this particularly gruesome murder wasn’t charged as a capital crime is that the grand jury refused to indict Mr. Mendez because the DNA evidence was unclear. As a result, the state’s attorney had to charge him with a lesser crime, second-degree murder, which does not require an indictment in Florida.

This is an interesting fact, is it not? It raises several questions for me. For one thing, lawyers like to say that prosecutors control grand juries and could probably “indict a ham sandwich.” So, this grand jury’s justifiable (IMHO) insistence on good DNA evidence must be an unusual occurrence. It would be interesting to know how often this happens.

Another question is, how many states have the same rules that Florida has concerning indictments? According to the Fifth Amendment to the U.S. Constitution, “infamous” crimes require a grand-jury indictment. But a quick Google search indicated to me that many jurisdictions rely on preliminary hearings rather than grand juries.

I immediately wondered about California and the Scott Peterson case: was Peterson indicted by a grand jury (when I compare the Peterson and Mendez cases, you will see why I wonder about this). I found a copy of the Peterson indictment online, so I assume he must have been.

This surprises me, because frankly there was no evidence (even presented in the trial) that Peterson had premeditated the murder (first-degree) or that he had even accidentally killed his wife in their home. (I don’t think Peterson’s purchase of a boat prior to the homicide is evidence of premeditation—all it shows is that he was a fisherman. And I don’t think a wrinkled kitchen rug and an indentation in a duvet cover is proof that he killed his wife in their home.)

Yet a California grand jury must have indicted Peterson for first-degree murder on this evidence, while a Florida grand jury refused to indict a man who was under a restraining order to stay away from the wife he brutally abused—and who stabbed and slashed his wife and her mother to death so violently that their home was awash in their blood and the knives he used were bent and broken.

        

Last Monday the Supreme Court heard oral arguments in Graham v. Florida, a case in which a juvenile (age 16) was convicted of armed robbery and sentenced to life imprisonment without parole (“L-WOP”); he now asks the court to reduce his sentence on the grounds that such a punishment for a child who commits a non-homicide crime is “cruel and unusual punishment” (an 8th Amendment right).

What are these lawyers thinking?

I’m surprised that Graham’s attorneys decided to appeal his sentence on the grounds that it constituted cruel and unusual punishment. I can only assume they scoured the Constitution for a “peg” to hang their argument on, and this was the best they could do.

But as far as I know, the Supreme Court is not confined to considering Constitutional issues. They decide case-law issues and common law issues all the time. And, it seems to me, a non-lawyer, the problem of juvenile justice is about common law, not the U.S. Constitution.

It is common law, not constitutional law, that establishes an “age of reason” for minors, before which age they cannot be held fully culpable for their acts. (The Supremes questioned Mr. Gowdy about this issue.)

The Constitution establishes legal ages only for voter rights and elected officials. The Constitution does not establish separate adult and juvenile criminal courts. The states do this.

Mental Age

The law has recognized for centuries that at an early age children do not have the reasoning capabilities of adults. In Graham v. Florida, Attorney Gowdy cited “science” which, he claimed, can’t draw a line between “maturity and immaturity.” And under questioning he also said that the human brain is believed not to be fully mature until the mid-twenties.

Unfortunately, human development is so subtle and complex that no one can yet point to a bright line between childishness and maturity.  Not only do individuals mature at different rates, but some individuals decline in old age into a “second childhood,” which the law is completely inadequate to deal with.

However, the Supremes have established 17 as the age before which an individual can commit homicide without being subjected to the death penalty. The “age of informed consent” has been set by most states at 16. In Illinois, an individual may be raped at age 13 and not be considered a child under anti-pedophilia laws.

Does something sound wrong here?

Juvenile Justice

The states have set up juvenile justice systems to handle minors who commit crimes. In juvenile court, a judge hears the case: children are not entitled to a jury trial. If adjudged guilty by a juvenile-court judge, the juvenile is sentenced to a juvenile detention center—at most until he or she reaches age 18, at which time the juvenile must be released.

But in the past few decades, so many juveniles have committed heinous, violent crimes that most states now permit the system to try juveniles as adults and to sentence them as adults (as in Graham’s case).

It seems to me that this is the point at which the juvenile-justice system needs reform. It makes no sense to try a non-adult as an adult, because by definition an immature person is incapable of forming criminal intent or fully understanding the nature and consequences of his acts. An immature person—especially an uneducated child—cannot possibly be competent to assist in his own defense.

Yet adults must be sane (capable of forming criminal intent and of understanding the nature and consequences of their acts) and competent to stand trial, that is, able to assist in their own defense.

If an adult is insane or severely mentally impaired, he is held until he is competent. We’ve seen this recently in the Kathleen Hilton case: she was not found competent to stand trial for ten years following the arson homicides of which she was accused.

An Idea

If an adult can be held for 10 years before she is competent to stand trial, why can’t a minor aged 13 be held for 4 or 5 years before he is moved into the adult criminal justice system? Or a 16-year-old like Graham be held for 1 or 2 years?

If that had been done in the Graham case, as I understand it, he would never have been free on parole at age 16 to commit the home invasion and armed robbery for which he received the sentence of L-WOP. He would only have been arrested six months earlier for a first armed robbery and then held for 1 or 2 years before standing trial.

Tried as an adult at 18, he might have been sentenced to more than the 1 year he originally received, but he also would have been given credit for time served—and he would not have been free to commit the more serious crimes at all.

        

In Graham v. Florida, plaintiff Graham and his many supporters argued before the Supreme Court that a punishment of life without parole (“L-WOP”) is “cruel and unusual punishment” (which is prohibited by the 8th Amendment) when applied to a minor. To prove that L-WOP is “cruel” they argued that it inhumanely prevents imprisoned minors from hope of rehabilitation. To prove that L-WOP is “unusual” they cited statistics of the rarity of the punishment.

L-WOP is possibly cruel . . .

As someone who studies the English language and its evolution, I’m not surprised that 21st-century lawyers would interpret the 8th Amendment’s prohibition of “cruel and unusual punishment” in this way. “Cruel” now means “inhumane,” and 21st-century standards of human decency demand that punishments of minors not stunt or deform them, mentally or physically. (Graham’s lawyers pointed out that in prison, L-WOP convicts do not have access to education or vocational training, thus stunting the development of minors in the system.)

L-WOP is possibly unusual. . .

I was a bit surprised, though, when Graham’s lawyers equated “unusual” with “rare.” More often today (“usually”) when English speakers use “unusual,” they equate it with “strange.” I suppose Graham et al. defined the term this way because rarity is something that can be precisely quantified.

Unfortunately, “rarity” does not mean “unusualness” today. If rare punishments were prohibited under the Constitution, then capital punishment would be prohibited, because it is the rarest of all punishments in our system.

But is L-WOP “cruel AND unusual”?

You might wonder why Graham’s lawyers bothered to try to prove that L-WOP for minors is BOTH cruel and unusual. Why didn’t they just settle for its being cruel? Any punishment that is clearly cruel would certainly be prohibited. For example, whether rare or not, no court would impose a cruel punishment.

I believe they interpreted the 8th Amendment to mean that in order for a punishment to be prohibited, it must be both cruel and unusual, not merely cruel or unusual.

What did the 8th Amendments’ authors mean by “cruel and unusual punishment”?

I’ve read a lot of 18th century documents (and earlier). The English language has changed a great deal since the 8th Amendment was written, both semantically and syntactically.

For this reason, I have long thought the 8th Amendment was not written to mean that a punishment must be both cruel and unusual, but only that it must be either cruel or unusual. In addition, I believe that it was not written to mean that a punishment must be weird or even rare in order to be prohibited, only that it must be “not usual.” And “not usual” meant something very different from what it does today.

Only the word “cruel” meant essentially the same thing in 1785 as it does today. In the 18th century, people had learned that the standard of decency evolves. They would not have been surprised to discover that the 8th Amendment’s “cruel” might not be the future’s “cruel.”

AND

I’m convinced the syntax of the phrase “cruel and unusual punishment” is the 18th-century equivalent of “cruel or unusual punishment.” In those days the phrase would have been read as an ellipsis: “cruel [punishment] and unusual punishment.” “Cruel” and “unusual” are clearly both adjectives of “punishment,” but the conjunction “and” did not then have the effect it does today of making the two adjectives apposite. In other words, today “and” is used when it is necessary to stress that something has two distinctly different attributes.

In the 18th century it was less common to use “or” as a conjunction between two adjectives. For example, an 18th century writer would not say, “rayon or wool socks,” but rather “rayon and wool socks.” There would be no confusion that the writer was describing rayon-wool-blend socks, because such a fabric was inconceivable in those days. The same is true of “cruel and unusual punishment,” because no one would think the writer meant a punishment that is both cruel and unusual.

“Or” was reserved for diametrically opposed concepts. “And” was used for merely different concepts. No 18th century reader of the 8th Amendment would have taken it to mean that it prohibited only punishments that were both cruel and unusual. That would have been absurd, because that would have permitted cruel punishments, as well as unusual ones.

So, in the 18th century, I believe a lawyer would have argued only that L-WOP for minors was cruel. He would not have felt he had to prove it both cruel and unusual.

UNUSUAL

I also believe that the authors of the 8th Amendment intended “unusual punishment” to mean something like a “bill of attainder,” not a strange or even rare punishment. “Unusual” in the 18th century meant “not usual” or something close to “peculiar” to an individual.

However, “unusual” is so weird I need to write a separate blog post on it.

        

On Monday the Supreme Court heard oral arguments in Graham v. Florida, in which a juvenile was convicted of armed robbery at the age of 16 and sentenced to life imprisonment; he now asks the court to reduce his sentence on the grounds that such a punishment for someone who committed his non-homicide crime before the age of majority is “cruel and unusual punishment” (an 8th Amendment right).

What are these lawyers thinking?

Bryan S. Gowdy, Esq., the convict’s lawyer, seems to think that his client’s sentence is excessive because he committed his crime at a tender young age. The Florida State Solicitor General, Scott D. Makar, Esq., seems to think that states have the right to sentence criminals to any punishment they like (as long as the punishment is neither cruel nor unusual), since criminal statutes and punishments are entirely in the purview of the states.

• Sidebar: The oral arguments were fascinating. They focused on issues not emphasized in the briefs. The justices recognized a number of issues that the lawyers did not: 1) both lawyers were making categorical arguments that would require judges to evaluate every convict differently, 2) states are phasing out parole entirely, so the issue of L-WOP is nearly moot, 3) “science” doesn’t identify the age at which the brain matures as 18, so it is impossible to draw a bright line between juvenile and adult offenders, 4) statistical studies indicate that criminality tends to wane once a criminal reaches his mid 20s (and no one mentioned that females are more law-biding) so the older a convict is the less likely he is to become a repeat offender after release from prison, 5) rehabilitation is not the purpose of the criminal justice system, as in the juvenile justice system, 6) but both systems intend to separate offenders from society and if a convict is provably reformed then that purpose is moot, 7) all punishments are intended to be punishment, first and foremost, 8) Graham was sentenced more harshly than one of his accomplices, who murdered someone, 9) the prosecutor and the judge disagreed about the appropriate sentences for the three accomplices . . . .

8th Amendment

From reading the oral arguments transcript, I suspect that the justices will not buy the argument that L-WOP (Life without Parole) is cruel and unusual punishment, since imprisonment is clearly neither cruel nor unusual (if you define “unusual” as most lawyers seem to do—“not widely used”).

While I do not interpret the admonition against “cruel and unusual punishment” as a lawyer does, I do not think that L-WOP for a minor is a violation of the 8th Amendment. My question is: Does the Supreme Court ever find in favor of a plaintiff on totally different grounds than those the plaintiff’s lawyer presents to them?

• Sidebar: The justices questioned both sides about the consistency of the Florida statutes on a number of issues, as well as the consistency with which judges apply certain penalties to certain types of crimes. The way in which Graham was sentenced to L-WOP while a homicidal accomplice got only about 11 years is what I think is meant by “unusual.”

5th Amendment—Due Process

I oppose the idea of a separate juvenile justice system for anything other than misdemeanor crimes. Juveniles who commit felonies ought to be tried in the adult criminal justice system before juries of adult citizens. However, such juveniles should be held in a juvenile detention center until he or she is 17 or 18, when he/she can be judged “competent to stand trial” as an adult.

Any adult who is not competent to “assist in his own defense” is not “competent to stand trial” in the criminal justice system. Defendants with serious mental disorders or who are under the influence of drugs and alcohol or who have serious physical ailments requiring medical treatment do not stand trial until they overcome these conditions. This is an important component of “the due process of the law.”

So why isn’t youth also a condition that must be overcome before a juvenile can stand trial as an adult? Why isn’t it a violation of “due process” to try a child as an adult, even though his brain is physically incapable of fully mature thought processes—when he is still clearly incompetent to stand trial?

The Constitution provides no requirement for a separate juvenile justice system; it is the states’ invention, designed to protect the criminal court system from being overwhelmed by the sorts of destructive mischief that kids tend to get involved in. It also provides “reform schools” (juvenile detention centers) where minors are shielded from the general prison population’s influence and given an education.

The current policy of trying minors as adults for serious crimes—and sentencing them to prison—has been adopted because younger and younger people are committing serious crimes. The impulse is understandable, but the current system is also seriously flawed. In that I concur with Graham and his attorney.

If I were Graham’s lawyer (and of course I am not a lawyer at all), I would have argued that my client was denied due process of law. He was tried as an adult at age 13 for one felony and sentenced to a short twelve-month sentence with the admonition that he needed to be very careful to obey the law after that or else--the state of Florida would be harsh. Once he was released on parole, he committed several armed robberies and at 16 was convicted on one of those charges. For this he received L-WOP.

The first trial, conviction, and sentence were clearly a violation of his due process. He ought not to have been tried as an adult at 13. He could not possibly assist in his own defense. He could not possibly understand the implications of the judge’s admonitions. In prison he could not possibly have learned anything in one year other than how to be a criminal. This was a violation of due process.

Graham ought to have been held in the juvenile justice system until he was at least 17 before being tried on the first crime. Thirteen to 17 is only four years, the length a kid should spend in high school. He would have been educated by the time of the trial. He still would have been convicted by a jury. A judge would then have been able to evaluate his capacity to stay out of trouble and could have sentenced him to time served if it was appropriate.

That is due process of law—in this non-lawyer’s opinion.

        

Yesterday I heard Lisa Bloom on TruTV’s “Best Defense with Jamie Floyd” argue against juvenile “L-WOP” (Life Imprisonment Without Parole”) partly because she feels too many people are jailed for too long these days. To support the argument she claimed that 1 in 100 Americans are now incarcerated. She also argued that juveniles ought not to be sentenced to life imprisonment without chance of parole on grounds that our “changing standards of decency” make such a punishment “cruel and unusual.”

The weird thing is, for once I actually agree with much of what Ms. Bloom said, but since in the past I have found her to be statistically challenged I decided to check up on that 1% statistic.

Guess what? She is off by over 300%. In 2007 the number of Americans who were then incarcerated topped 3.2% (7 million adults). Ms. Bloom need not be ashamed: she is not the only lawyer with numerical dyslexia, nor is she the only American who is numerically challenged. I am, too, and I’m not even a lawyer.

• We definitely have an incarceration problem in this country, and it is getting worse all the time. It is one of the problems threatening to bankrupt us. I suspect that the largest group of convicts are doing time for drug-related offenses, and if we stopped incarcerating people for simple possession we would do ourselves a great favor.
• Worse yet, too many juveniles have contact with the prison system, not only as a result of being sentenced as adults but also as a result of visiting their convict parents in prison. I simply don’t understand how a family-court judge can “sentence” a child to visitation in a jail, but that is a topic for a separate blog article.

But I digress: Ms. Bloom’s topic was Graham v. Florida.

My topic is the way lawyers (including judges) throw around statistics in court extremely casually.

Take a look at the oral arguments in yesterday’s Graham v. Florida case. Graham’s attorney Bryan S. Gowdy argued that L-WOP had only been given to 30 juveniles in 6 states, thus proving his argument that L-WOP is so rare it is “cruel.” Chief Justice Roberts pointed out to him  that 38 states allow juvenile L-WOP (proving it isn’t rare at all). Gowdy corrected the Chief Justice: “30.” The Chief Justice persisted in saying it is 38 or 39, but also pointed out that 30 out of 50 is still “the vast majority.”

I am not a lawyer, but if I were and if I was arguing before the Supreme Court I certainly would not try to distort the numbers the way Mr. Gowdy did. I’m also very glad that the justices of the Supreme Court seem to have a better grasp of numbers than most lawyers.

• The Supreme Court only recently began making transcripts of oral arguments available online on the day of the argument. The Graham v. Florida oral arguments make strangely fascinating reading. I’m struck by the rhetoric of this particular courtroom drama: it looks to me as if Mr. Gowdy completely misjudged his audience.

        

In graduate school I indulged myself in an interest in the history of science fads. One product of this was an article in a peer-reviewed medical-history journal, Clio Medica: “William Bullein and the ‘lively fashions’ in Tudor Medical Literature” (1974). I titled the article a study of “literature” for two reasons: 1) to justify it to my dissertation advisor and 2) because the more I read early scientific writings the more I saw that science writing is little different from fiction.

What was true of science writing in the 16th century is still true in the 21st—and the science community (if they’re honest) will admit it. Regrettably, many people who call themselves scientists are really artisans and craftsmen. (Allegedly, physicists [who are scientists] have a joke: any discipline with science in its name isn’t really science—such as social science and forensic science.)

I fear that much expert-witness testimony these days is an elaborate, well-articulated fiction. Recent testimony in the Michelle Kehoe “insanity defense” struck me as “fabulous” (meaning, fables) and very bad rhetoric, because it insulted its audience, the jury. (One forensic psychologist suggested Kehoe was delusional because she went to church every Sunday.)

Peer-Reviewed Journal Articles in Expert Testimony

Whenever expert witnesses testify in a trial, they always cite their publications in “peer-reviewed journals,” as if such publications were descended from Mount Sinai with Moses. (Following the link will take you to a photo of St. Catherine’s Monastery on Mt. Sinai, purely coincidentally; I was not named after St. Catherine.)

I recently learned why expert witnesses always use the ritual phrase “peer-reviewed.” Ken Alder in The Lie Detectors explains that the first court cases involving questions of the use of lie detectors produced a ruling (The Frye Rule—coming soon to this blog), which was reexamined by the Supreme Court in 1993 (Daubert v. Merrill). That decision (often cited as the ruling against junk science) states that science can only be used in court when it has first been:

• “(1) subjected to a program of scientific testing, (2) published in peer-reviewed journals, (3) assigned a known error rate, and (4) found acceptable by the relevant scientific community (the old Frye rule).” [Kindle locations 4813-23]

The problem is, of course, that the justices who wrote this decision are not scientists: they had no concept of what a “program of scientific testing,” a “known error rate,” or a “relevant scientific community” really are. Presumably they did know what a “peer-reviewed journal” is, because even lawyers publish articles in those journals.

I, too, know what a peer-reviewed journal article is. Unfortunately, I understand only too well that having an article accepted in a peer-reviewed journal is not a certification of its truth or validity. It is nothing more than a stamp of the prevailing political correctness. In the case of my Clio Medica article (above) I have no doubt whatsoever—reasonable or otherwise—that if I had not written it under the direction of a famous science historian and had not dropped his name in the article’s cover letter when I submitted it to the journal for peer review, I would not have been published.

        

The massacre yesterday at Fort Hood convinces me that Americans have forgotten what “duty” means.

Duty is obligation. Duty is requirement. Duty is being bound to service. If you are an American, jury service is your duty. If you are an American soldier, combat duty in time of war is your duty.

Yesterday a man named Hasan (he has lost the right to be addressed more respectfully) attacked his fellow Americans, apparently because he was angry about being called to combat duty in Afghanistan. It was reported that he is 39-40 years old, which means he was born during the Viet Nam War, sometime around 1969, the year “the music died,” and I guess the year that duty died, too.

Hasan must never have been taught what duty is.

I suspect this mass murderer isn’t the only American under 40 who doesn’t know what duty is. Every day this blog is hit by people searching the web for information on “how to avoid jury duty.”

I heard Hasan’s cousin being interviewed on Fox News by Shepard Smith. This young man insisted that Hasan was “a good American.”

A good American does his duty. When a good American swears an oath to serve his God and his country in the military, and then he is called to combat duty in service of his country but he fears such service is a disservice to his God, he does not massacre his fellow soldiers—he does the honorable thing: he submits himself to martial law, resigns his commission, declares himself a conscientious objector, and goes to jail.

That’s what anti-war activists did until 1969.

Muhammed Ali was drafted into the Army at the height of his boxing career in 1967. A Moslem and a pacifist, Mr. Ali did not punch the induction officers in the face. He went to jail as a conscientious objector. Why didn’t Hasan follow Mr. Ali’s honorable example? The only reason I can think of—other than insanity—is that he and many people under 40 never learned what duty means.

This country is in serious trouble if we can’t count on each other to do our duty.

Which brings me back to jury duty. Jury duty is often onerous, as I suspect military service sometimes is, too. Jurors have few rights (like military conscripts, but we no longer conscript soldiers; they volunteer). Jurors are underpaid (like the military). Jurors are often vilified for their decisions (like the military).

But good Americans are duty bound to one another to serve when called. The jury system is rock-bottom fundamental to your freedom. If you are arrested (guilty or innocent) you will want good Americans on your jury to ensure that your liberty is protected from the power of the government. And if you are the victim of a crime or injured by someone else, you will want good Americans on your jury to give you justice.

The government does not give you freedom. The government does not give you justice. Only your fellow citizens can do that. So, while I often criticize the jury system and the courts, and while I have even written about how you can avoid jury service, it is your duty.

When you receive the summons, obey it. Go to the courthouse happy that you go there for jury duty and not to stand trial. Inform yourself ahead of time about the process. Serve with an open mind. Make sure you defend our freedom by not sending an innocent person to jail. Do your duty.

        

Years ago I was a copyeditor. I learned that things are "hung" and people are "hanged." Of course, juries are people, too, but when a jury deadlocks, "it" is "hung" (a "hung jury"), because a jury is grammatically an it.

So, it seems to me that grammatically a single juror who causes a jury to deadlock ought to be an it, too, and thus ought to be referred to as a "hung juror." Regrettably, though, this phrase has an unfortunate alternative meaning, which is particularly objectionable to me, since I am female and the juror in question in this blog.

Then, too, the name of my courtroom drama/legal mystery is THE JUROR HANGS (which is what literally happens to one poor juror in the novel).

At the risk of losing the connotation I desire for the name of this blog (namely, that I am often the lone holdout against popular opinion), I am changing the name  to THE HANGED JUROR.

        

The jury in the Michelle Kehoe murder trial found her guilty in short order. While defense attorneys may have thought she met the legal criteria for insanity, obviously the jurors did not.

The more this non-lawyer heard about Michelle Kehoe and what she did, the more evil she seemed to me.

Now that she is guilty, I can freely express my opinion of her horrific crime.

In 2007, Kehoe drove off an icy road into an Iowa river with her two children in the car, conveniently at a time when other drivers present could dive into the river at the risk of their own lives to save her.

In 2008, Kehoe staged a fake abduction (just like Susan Smith), killed one son and tried to kill the other, then horrifically wounded herself, and staggered to a nearby house to swoon on its doorstep. Her survival was no accident. She was seeking attention and sympathy—just as she had the previous year.

Kehoe is sick. She is mentally ill. But she is criminally insane, not innocent by reason of insanity. If she had really thought she was saving her sons from a hellish future and doing the right thing when she killed them, why did she choose such a cruel way to kill them? She slit their throats and then squeezed to make them bleed to death more quickly (having taped their eyes and mouths). They must have struggled against her. They must have made pathetic noises. She must have known they were suffering.

The only reason a person kills a child so cruelly is because she is angry at them. I suspect she was actually jealous of them and wanted the affection her husband lavished on them to be redirected to her.

Haven’t you ever known a person like that—a person who is so narcissistic that she competes with her own children? (BTW: The APA designates narcissism as a mental disorder. But not all mental disorders are insanity.)

Evil people are often evil because they were abused as children—as was Kehoe. Serial killers were often abused children, as Dr. Stone’s “Most Evil” scale explains. They’re all still murderers. And while I’ve written a number of short stories on the “evil that men do” (THE EVIL THAT MEN DO, Light Pages, LLC, 2008), I also understand that women can be evil too.