The Hanged Juror

Legal Stupidity—Daylight Savings Time

The Hanged Juror — 2010-03-14T13:26:12Z

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

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

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

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

The History

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

The Uniform Time Act of 1966

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

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

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

The Junk Science of Daylight Savings Time

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

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

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

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

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

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

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

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

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

Technorati Tags: Daylight Savings Time

More Bizarre Juries

The Hanged Juror — 2010-03-06T15:45:35Z

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/

Suicide or Homicide by Colt Revolver?

The Hanged Juror — 2010-03-04T17:35:56Z

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?

Technorati Tags: Dossett-Leath

Mark Schack Trial Strangeness

The Hanged Juror — 2010-03-02T17:11:52Z

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.

Technorati Tags: Mark Schack

Jury Duty in the News and Blogs

The Hanged Juror — 2010-03-01T17:14:13Z

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:

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:

Jury Books

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

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

The Adversarial System, Rhetorical Battles, and Chess

The Hanged Juror — 2010-02-25T16:21:00Z

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.

Technorati Tags: Allen Andrade,Dossett-Leath

The Economist—That Way Madness Lies

The Hanged Juror — 2010-02-24T14:14:21Z

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).

Technorati Tags: death penalty,insanity defense,Daubert v. Merrill

Police Officers on Cellphones, Walkie-talkies, and Radios

The Hanged Juror — 2010-02-23T15:36:35Z

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.

Technorati Tags: Ronald Killings,cell phone use while driving

Amy Bishop and “Nursery Crimes”

The Hanged Juror — 2010-02-21T14:44:14Z

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.

Technorati Tags: Amy Bishop,mystery novel

Apologies to Subscribers

The Hanged Juror — 2010-02-21T13:55:00Z

I inadvertently posted an incomplete entry just now.

Killings Jury Verdict--The Letter of the Law versus Justice

The Hanged Juror — 2010-02-14T20:56:00Z

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.

Criminal Justice—Ron Killings and a Child Treated “Like Nothing”

The Hanged Juror — 2010-02-11T20:18:40Z

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.

Technorati Tags: Ronald Killings,Trooper Higbee

Another TN Medical Examiner to the Rescue

The Hanged Juror — 2010-02-11T14:22:11Z

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.”

Technorati Tags: Ronald Killings,Trooper Higbee

Can the cops fake a suspect’s blood-alcohol level? Ron Killings trial

The Hanged Juror — 2010-02-10T21:02:10Z

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?”

Technorati Tags: Ronald Killings,DUI,blood test

Officer Killings, Police Thuggery, and Trooper Higbee

The Hanged Juror — 2010-02-10T15:51:01Z

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.

Technorati Tags: Ronald Killings,Trooper Higbee,rules of evidence,police misconduct

Why in Court? Why kill instead of divorce?

The Hanged Juror — 2010-02-04T15:45:30Z

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.

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More Injustice in Indian Country

The Hanged Juror — 2010-02-02T21:40:10Z

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.

Technorati Tags: Indian Country,Utah v Aragon

Danger of Bad Writing

The Hanged Juror — 2010-01-28T16:10:07Z

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.

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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).

Politics of Prosecution--Apologies to the Innocents

The Hanged Juror — 2010-01-28T14:57:00Z

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 Methods of Medical Examiners--Part 2

The Hanged Juror — 2010-01-18T15:35:32Z

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 …

Technorati Tags: John Collett trial,Eric McLean,Dossett-Leath