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

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

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

        

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

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

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

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

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

The Crime Scene

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

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

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

Colt .38 Revolvers

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

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

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

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

Colt Revolvers in Action

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

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

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

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

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

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

How Did the Detective Know 3 Casings Were Empty?

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

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

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

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

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

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

The Casings Had to be Ejected

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

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

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

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

        

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

According to the victim’s relatives:

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

According to Schack:

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

This is all weird. It makes no sense.

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

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

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

The Verdict

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

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

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

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

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

        

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

Juror Stress and Misconduct

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

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

Involuntary Servitude

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

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

Jury Selection

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

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

Bizarre Courtroom Behavior

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

Juries outside America

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

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

Jury Books

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

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

Jury-related websites

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

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

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

        

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

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

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

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

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

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

Chess Equilibrium

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

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

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

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

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

Tipping the Scales with Words

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

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

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

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

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

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

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

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

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

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

        

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

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

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

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

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

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

Innocent by Reason of Insanity

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

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

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

DSM-V Changes

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

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

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

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

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

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

Delusions vs. Hallucinations

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

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

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

Blind Them with Science

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

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

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

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

        

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

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

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

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

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

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

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

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

        

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

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

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

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

Gill’s Nursery Crimes

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

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

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

Amy Bishop’s Nursery Crime

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

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

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

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

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

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

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

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

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

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

        

I inadvertently posted an incomplete entry just now.

        

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

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

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

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

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

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

        

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

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

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

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

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

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

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

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

The Defendant Testi-lies

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

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

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

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

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

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

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

        

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

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

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

Accident Reconstruction

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

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

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

Lip Service

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

The Juror Wants to Ask a Question

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

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

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

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

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

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

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

 

        

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

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

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

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

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

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

Results of Blood Tests

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

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

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

Chain of Custody Problems

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

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

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

Killings and “Phlebo-Cops”

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

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

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

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

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

        

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

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

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

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

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

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

Police Misconduct

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

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

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

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

Police Investigations

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

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

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

Admissible Evidence

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

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

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

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

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

        

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

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

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

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

The Trials of Raynella Dossett-Leath

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

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

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

Why?

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

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

The Will

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

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

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

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

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

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

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

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

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

 

        

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

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

Idaho v Aragon

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

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

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

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

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

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

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

 

        

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

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

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

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

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

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

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

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

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

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

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

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

        

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

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

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

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

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

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

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

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

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

        

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

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

A Medical Examiner Who Works Backwards

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

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

Trial of John Collett

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

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

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

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

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

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

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

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

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

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

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

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

Trial of Eric McLean

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

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

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

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

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

Trial of Raynella Dossett-Leath

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

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

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

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

To be continued …

        

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

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

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

Problematic Science in Court

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

Science in Court for the Finders of Fact

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

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

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

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

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

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

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

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

Rules of Evidence

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

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

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

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

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

Autopsy Protocols

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

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

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

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

CSI Involvement

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

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

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

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

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

        

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

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

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

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

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

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

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

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

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

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

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

        

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

What Happens During Deliberations?

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

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

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

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

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

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

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

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

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

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

S. Carolina v Rye Deliberations

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

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

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

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

Why Jury Duty is Frustrating

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

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

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

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

        

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.