The Hanged Juror

Power is the ultimate aphrodisiac—From pedophiles all the way to the top of society

The Hanged Juror — Sat, 31 Jul 2010 14:22:53 GMT

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

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

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

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

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

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

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

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

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

Who’s fault is this mess? Ours.

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

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

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

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

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

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

Technorati Tags: Ohio v Daniel Kovarbasich

“Does anyone in Florida understand what justice is?—Florida v Kananen

The Hanged Juror — Wed, 30 Jun 2010 20:35:07 GMT

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

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

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

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

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

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

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

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

Overzealous Prosecutors

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

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

CNN’s Choices

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

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

Technorati Tags: Florida v Kenanen,audience abuse,injustice,S.714

S. 714 “National Criminal Justice Committee Act of 2009"

The Hanged Juror — Tue, 22 Jun 2010 13:07:50 GMT

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

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

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

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

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

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

The Simple Solution—The Innocence Project Can Do It Themselves

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

“Cruel and Unusual Punishments”

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

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

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

Grand Jury Indictments

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

Due Process

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

Mexican Drug Gangs

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

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

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

Technorati Tags: Bill of Rights,S.714

The government is from Mars—or maybe just schizophrenic

The Hanged Juror — Thu, 17 Jun 2010 01:32:58 GMT

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

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

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

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

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

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

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

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

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

Technorati Tags: Books to Prisoners,Inside Books Project,The Pampered Prisoner,Books through Bars,Prison Pen Pals

Mysterious chess crime and court hearings you won’t hear about on TV

The Hanged Juror — Thu, 27 May 2010 18:51:24 GMT

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

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

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

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

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

Who Is Rated Chess Player John Doe?

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

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

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

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

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

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

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

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

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

Can we really dismiss all of these theories as loony?

Technorati Tags: Johnny Gosch,JonBenet Ramsey,Columbine,Marc Dutroux

Disappearing Data—Bureau of Justice Statistics

The Hanged Juror — Mon, 24 May 2010 17:23:37 GMT

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

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

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

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

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

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

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

Technorati Tags: Bureau of Justice Statistics

RIP American Dream

The Hanged Juror — Mon, 24 May 2010 16:33:54 GMT

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

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

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

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

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

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

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

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

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

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

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

Wondering why we have a gang problem in this country?

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

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

Judges are the biggest threat to the American jury system

The Hanged Juror — Thu, 20 May 2010 12:57:27 GMT

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

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

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

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

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

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

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

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

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

Hire Judges

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

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

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

Technorati Tags: Cook County elections,Graham v. Florida

Graham v Florida—Many journalists didn’t even get the vote count right

The Hanged Juror — Wed, 19 May 2010 14:17:25 GMT

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

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

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

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

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

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

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

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

Technorati Tags: Graham v. Florida,United States v Comstock

Oregon v Beagley--2020

The Hanged Juror — Tue, 18 May 2010 18:28:12 GMT

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

“Hindsight Is 2020”

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

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

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

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

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

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

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

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

“Why?” She was floored.

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

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

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

Finis

“More On” Oregon v Beagley

The Hanged Juror — Thu, 13 May 2010 14:06:34 GMT

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

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

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

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

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

Technorati Tags: Oregon v Beagley,teen rights

Oregon v Beagley—Have It Both Ways

The Hanged Juror — Wed, 12 May 2010 14:18:28 GMT

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

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

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

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

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

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

Oregon’s Death with Dignity Law

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

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

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

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

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

Ad Absurdum

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

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

Technorati Tags: Oregon v Beagley,Oregon's Death with Dignity Law

Jury Reform—The End Is Near (Part 2)

The Hanged Juror — Tue, 04 May 2010 13:42:31 GMT

Amendment V of the U.S. Constitution

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

The Fifth Amendment of the Bill of Rights is the basis of our criminal justice system. The Sixth Amendment is the basis of our jury system: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law . . . .” Yet today the states have all enacted laws that directly contravene both of these Amendments, and the U. S. Supreme Court has upheld many of these laws.

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

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

Look at Casey Anthony, if you need another example.

Jury Reform Is Long Overdue

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

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

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

So What Else Is New?

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

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

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

Collapse of the American Jury System—The End Is Near (Part 1)

The Hanged Juror — Wed, 28 Apr 2010 13:15:00 GMT

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

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

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

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

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

What Is a Hung Jury?

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

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

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

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

To be continued . . .

“Now it’s up to the jury to decide” Michigan v Springer

The Hanged Juror — Fri, 23 Apr 2010 19:45:02 GMT

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

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

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

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

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

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

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

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

Technorati Tags: Michigan v Springer

Speaking Freely

The Hanged Juror — Wed, 21 Apr 2010 12:58:11 GMT

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

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

Freedom to “Depict” Crimes

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

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

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

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

Freedom to Discuss Crimes

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

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

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

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

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

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

Freedom of Speech in Prison

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

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

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

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

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

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

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

Technorati Tags: United States v Stevens,Casey Anthony

Cinderella’s Classmates and Commercial Exploitation

The Hanged Juror — Wed, 14 Apr 2010 13:00:06 GMT

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

Enough. Please.

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

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

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

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

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

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

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

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

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

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

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

Technorati Tags: Springer trial

Cinderella, Wicked Stepmothers, and Demonized Caregivers—Michigan v Springer and Springer

The Hanged Juror — Wed, 07 Apr 2010 14:20:40 GMT

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

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

Special Needs Children and Home Schooling in Michigan

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

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

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

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

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

Evil Caregivers

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

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

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

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

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

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

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

Families at Risk

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

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

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

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

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

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

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

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

Technorati Tags: Calista Springer

Writing and punctuating the Scott Roeder murder sentence.

The Hanged Juror — Thu, 01 Apr 2010 16:17:03 GMT

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

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

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

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

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

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

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

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

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

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

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

Technorati Tags: First Amendment

A last look at the science of Matt Baker’s conviction

The Hanged Juror — Mon, 29 Mar 2010 13:25:33 GMT

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

Eye-Witnesses and Hearsay

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

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

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

The Forensics of the Suicide Note

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

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

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

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

The following isn’t a logical syllogism:

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

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

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

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

Fingerprints:

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

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

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

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

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

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

Technorati Tags: Matt Baker trial,fingerprint evidence

Forensis—Debate in the public forum

The Hanged Juror — Sun, 28 Mar 2010 14:00:32 GMT

“Forensic Science” is an oxymoron.

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

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

The Supreme Court and DNA

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

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

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

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

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

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

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

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

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

Technorati Tags: Hank Skinner

Computer Forensics, For Better, For Worse, in Texas v Baker

The Hanged Juror — Tue, 23 Mar 2010 13:27:09 GMT

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

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

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

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

Relevant Computer Issues

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

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

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

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

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

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

Online Searches

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

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

Honeymoon Websites

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

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

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

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

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

Technorati Tags: Matt Baker trial

What every mystery writer knows about “time of death”

The Hanged Juror — Mon, 22 Mar 2010 17:28:21 GMT

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

Black Widow Cases

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

Time of Death and Air-Tight Alibis

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

Cause of death (medical)
Manner of death (legal)
Time of death (fact)

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

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

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

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

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

Black Widow Alibis

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

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

No Liver Temperature

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

The Schreiner Time of Death

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

Briefly, the testimony was:

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

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

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

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

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

The Dossett-Leath Time of Death

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

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

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

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

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

Black Widow Alibis

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

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

Technorati Tags: Dossett-Leath,Hope Schreiner,Juan Mendez Jr.