Oklahoma Criminal Defense Blog

Another law enforcement has been charged with the commission of rape while on duty.  Patrick Venable, an Oklahoma Highway Patrol trooper until he was forced to resign for this offense, is charged with Rape Second Degree.  The Logan County District Attorney claims this crime took place while Venable was on duty.

The fact that Venable is neither incidental to the crime or an aggravating factor.  It is essential to the crime.  Why?  Because the sex was apparently or possibly consensual.  Why, then, if the sex was indeed consensual, could this be rape?   Because the young woman in question was allegedly in Venable’s custody at the time.  Venable’s attorney flatly denied at the time of Venable’s arraignment that the young woman was under arrest or in custody.

The Oklahoma statute which defines rape, Title 21, Section 1111, provides in relevant part that a rape occurs when:

7.    Where the victim is under the legal custody or supervision of a state agency, a federal agency, a county, a municipality or a political subdivision and engages in sexual intercourse with a state, federal, county, municipal or political subdivision employee or an employee of a contractor of the state, the federal government, a county, a municipality or a political subdivision that exercises authority over the victim; or….

The facts alleged by the District Attorney, same as the Highway Patrol at the time of pressuring Venables to resign, include the facts that when Venables was on duty on the Broadway Extension in Oklahoma City, he stopped a woman for driving under the influence of alcohol.  After putting the woman in his patrol car and talking for a while, Venables allegedly turned off the video recorder that records the events for the later use of the prosecution at trial.  Venables then allegedly drove the woman to her home, took her inside and had sex with her at her home located in Logan County.  Apparently, the woman was very much under the influence of alcohol because, although she admits “sexual contact in the patrol car,” she had no recollection of what happened at her home.  Venables faces up to 15 years in prison if he is convicted.

Venables claimed the sex he had with the woman in her home was “100% consensual.”  That would be irrelevant, of course, if the woman was “under arrest or in custody” because the rape definition statute subsection quoted makes no reference to consent.

Often when law enforcement officers stop a vehicle on the highway, they will use a drug dog to sniff the vehicle to establish probable cause to justify their subsequent manual search.   The reliability of that dog then becomes a fact question as to whether that search was legally justified, since the search was based upon what the law enforcement officers claim the dog “told” them about the vehicle to lead to the officers’ search.

In Oklahoma, the Council on Law Enforcement Education and Training (CLEET) licenses canine teams (a dog and a handler) to operate as “drug detection dogs.”  This is the same agency that trains and licenses bomb dogs and all state-licensed law enforcement officers.

The drug dogs must be certified and then recertified annually.  What standards are used?

(b) (a) Testing for certification of CDS detector canine teams shall be conducted by qualified persons agents of the Oklahoma Bureau of Narcotics and Dangerous Drugs (OBNDD), and/or their designees, who have successfully completed an appropriate course of instruction, or who are currently certified in the training and handling of CDS Detector Dogs by the United States Custom Service.
©) (b) CLEET shall publish specific standards and guidelines governing the training and certification of canine teams. The standards and guidelines shall have the same effect as the rules published herein. Certification trials and testing criteria shall be consistent with the CLEET standards currently utilized developed for the certification of CDS detector dogs.
(d) ©) CDS detector canine teams shall be certified only in the detection of controlled                    dangerous substances for which the dog passes the certification test.
(e) (d) CLEET relies on the test reports of OBNDD or their designee conducting the test for the purpose of determining whether the canine team passed the certification test.

This rule was changed.  Subsection (d), above, used to require “canine teams be certified only in detection of controlled dangerous substances for which the dog “scores an eighty percent (80%) higher ‘find rate’, and not more than a twenty percent (20%) ‘false response’”.  When subsection (d) was changed, subsection (e) (above) was also added to provide that CLEET may simply rely on OBNDD, but OBNDD has no published rules or guidance with any objective standards.

Since the privacy of our citizens and the integrity of the Constitution are at stake, it is important to know by what standards these dogs are trained.  But our government has decided to deliver this power to search into the hands of law enforcement officers without any standards.

In conducting a search, the police officer typically walks the dog around the vehicle, and the  dog is supposed to give a signal to the handler that the dog smells drugs.   It is the handler who testifies – under oath – what the dog did and why it should justify the handler’s resultant search of the citizen’s car.   Predictably, the handler will parrot the things he was told to say in his training and to minimize or forget anything suggesting he coached the dog, but the reliability of the dog’s actions are all issues of fact for the prosecution to prove and for the criminal defense lawyer to inquire into.

What behavior the handler observed in this case is strictly up to the handler to tell, as he chooses to tell it.  When my clients tell me, as they tell other criminal defense attorneys, the handler had to run the dog around the car ten times or the handler was banging with his fist on the side of the car, the handler never remembers these things or denies them outright.  These events may or may not be on video.  Events recorded seem to be those things that help the prosecution, and the things with gaps in the recording usually appear in areas in which the credibility of the law enforcement officers is most critical.

The dogs are trained to smell certain drugs, and their noses are reputedly really good.   Dogs are supposed to be able to smell things regardless of how things are hidden, wrapped, and disguised with other smells.  Even shirk-wrapping does not prevent the smell from reaching outside, so additional smells are used to mask the smell with something like Fibrous or dryer sheets.

As one can read from the standards set in Oklahoma, there used to be a standard by which to judge a successful performance of a drug dog in order to certify it.  Now, there is no objective standard.   And Oklahoma is not the only state with this problem.  Incredibly, most states have no objective standard for performance.

Recently the Chicago Tribune did a study of drug dogs in Illinois.  It found that the data showed the dogs were wrong more often than they were right.  The dogs were trained to dig or sit when they smell drugs, but a study of suburban police departments showed only 44 percent of the alerts led to drugs or drug paraphernalia.  For Hispanic drivers, however, the success rate was only 27 percent.

Observers point out that many canine teams (dog and handler) are poorly trained and likely to obtain false alerts, which lead to baseless searches.  Leading a dog around a vehicle too many times or spending too long examining a vehicle can cause a dog to give a signal for drugs where there are no drugs.    Some believe the indignity of the police tearing their car apart is more invasive, frightening and humiliating than the airport frisks and scans that have raised such a stir.

Law enforcement departments very rarely keep data on the number of alerts so that the number of false alerts cannot be determined.  If a drug dog alerts correctly only 4% of the times he alerts, how can that constitute “probable cause” to justify a police search?  Of course, a false alert that finds no drugs never gets to a judge, so those searches, which average a half hour, never come to anyone’s attention.   And you can bet the police officer on the witness stand, knowing there is no data to contradict him, will have a selective memory about any mistakes his dog has made.  As usual, it is up to the criminal defense attorney to drag the truth out of reluctant witnesses.

The prosecution of present and former Tulsa police officers inches closer to jury trial.  U.S. District Judge Bruce Black, from New Mexico and sitting in the Northern District of Oklahoma in Tulsa, has ruled the indictment against Tulsa police officers Nick DeBruin, Bruce Bonham and Harold Wells may proceed to trial and overruled pretrial motions by the defense.  Wells is retired from the police department.

The judge has set their trial on May 20.  Set in June is a related indictment against others arising from the same sting, an indictment against Tulsa Police Officers Jeff Henderson and Bill Yelton.
Henderson and Yelton, both are accused of multiple counts, Henderson on 58 counts and Yelton on 7 counts, respectively, including civil rights violations and witness tampering, Henderson’s including attempted bribery and Yelton’s including witness retaliation and suborning of perjury.  Both are still on the police payroll but suspended with pay, and both are held in jail pending trial.  DeBruin was indicted on 6 counts, Bonham on 5 counts, and Wells on 10 counts.  All have been released on bond.  DeBruin and Bonham are still on the Tulsa Police Department payroll while suspended without pay.  Wells is retired from the department.

The case began when a woman named Debra Clayton who had been an informant for Tulsa Police officers.  Heretofore identified in court documents only as “informant No. 2″, Ms. Clayton has now made her own name public.  A drug user claiming to have finally gotten off drugs now, she had been an informant for former officer John Gray and A.T.F. agent Brandon McFadden for some time and got tired of their continuing to pressure her to continue to participate in selling or delivering methamphetamine.  Eventually, she called the F.B.I. and told them what Gray and McFadden were up to.  The F.B.I. then set up a sting operation.  Gray and McFadden have pleaded guilty and are listed as government witnesses in both indictments.

The F.B.I. sting was set up at the Super 8 Motel on East Archer Street in Tulsa.  Video and audio recorders were set up to record the events inside the motel room.  An undercover agent posed as a drug dealer  When he was arrested his cash was seized by the arresting officers.  He had $15,000 in cash, $5,000 of which the police defendants are accused of stealing, for which they are accused of stealing government funds.  Some of the accused noticed government surveillance of the motel room, so they returned cash to the motel room.  However, defendant Bruce Bonham had already taken home the $5,000 cash before the others were alerted.  The remaining police officers accused met at a Conwy Island hot dog stand to discuss their problem and try to get Bonham’s cash back.   They were too late.

A total twenty present or former New Orleans police officers have been charged last year with civil rights violations arising out of police misconduct during the aftermath of Hurricane Katrina.  Federal court in New Orleans saw the jury bring verdicts against the first five to go trial last December.  Of those, three were convicted while two were acquitted in the death of a man in September, 2005.  .

Henry Glover was shot to death outside a strip mall.  Charged with manslaughter, former officer David Warren was convicted and Lt. Dwayne Scheuermann was acquitted.  Officer Gregory McRae was convicted of burning Glover’s body in a car.  The jury also convicted Lt. Travis McCabe of writing a false report on the shooting event, while former Lt. Robert Italiano was acquitted of that charge.

Thousands of people were trapped in New Orleans during this chaotic, dangerous time after the flooding of the city.  Bodies rotted in the streets because there was nowhere to take them.  Looting was everywhere.  People were desperate.  All five defendants testified in the trial and described the horrific conditions.

The defendants testified they did not have time to investigate any but the most serious crimes and writing reports was the least important of their duties.  Assistant United States Attorney Tracey Knight, prosecuting the case, urged in opening statement that the conditions prevalent may have made the defendants believe they could get away with their actions because no one was watching.

Several of the officers who testified as government witnesses admitted they had lied to the F.B.I. or the grand jury before they agreed to “cooperate.”   As any criminal defense attorney will tell you, the government makes every case it can from cooperating witnesses.

David Warren was guarding a police substation at a mall when Glover and his friend, Bernard Calloway arrived.  Warren testified that they arrived in what he thought was a stolen truck.  He claimed they ran toward a gate and ignored his commands to stop. He claimed he thought he saw a gun in Glover’s hand and then shot at Glover.

Warren’s partner at the time, officer Linda Howard, testified to the contrary that neither Glover nor Calloway was armed and posed no threat.  Glover’s friend, Calloway, testified that he saw Glover leaning against the truck lighting a cigarette just before he was shot.   And Warren had fired his rifle earlier day, having shot a warning shot at a man on a bicycle because, Warrent testified, the man kept circling and looking up at him on the second-story balcony.

A passing motorist named William Tanner, stopped, picked up and drove the wounded Glover, his brother Edward King, and Calloway to a school.  Tanner and Calloway testified they were ordered out of car at gunpoint, handcuffed and beaten by police while they begged the police to help Glover.

Defendants Scheuermann and McRae beat two of the men according to the testimony of policed Sgt. Sandoz, testifying for the government with a promise of immunity.  Sandoz testified that he lied to the F.B.I. and the grand jury about what happened.

Scheuermann and McRae denied beating the men, of course, but McRae did admit he drove Glover’s car to a levee on the Mississippi River and torched it with Glovers’ body inside.  He said he was just tired of seeing dead bodies rot in the street and didn’t want to add to the corpse count.  McRae said it was his idea alone to burn the body.  Scheuermann testified he was surprised and shocked to see McRae toss a flare into the car.  Lt. Joseph Meisch testified he was nearby and that McRae was laughing after setting the fire.

The government’s theory of the case was that Italiano and Mcabe of trying to cover up the shooting and charged them both with lying to the F.B.I. and of submitting a false, misleading report.  As well, McCabe was charged with perjury in his grand jury testimony.  Sss

Sgt Purnella Simmons who arrived at the mall after the shooting told Italiano that Warren’s partner, officer Linda Howard, did not believe the shooting was justified.  Simmons later lied to the grand jury and adopted a report that covered up the shooting, even though that report contradicted her findings.  But she then returned to testify again to tell the grand jury the truth, she testified.  McCabe testified he helped Simmons interview witnesses and write the report that covered up the shooting, but he blamed Simmons for any omissions in the report.

Italiano signed that report and testified he did nothing to write a false report or cover up the shooting.  He testified he did not even know until years later that the shooting at the mall was connected to Glover’s burned body in the car because Simmons did not give him that information.

Kevin Cooper was convicted of murdering a family in 1983.  As his execution approaches, not only have serious questions have been raised about the evidence used to convict him but some federal appeal judges have accused police of framing him for the murders.

Doug and Peggy Ryen were stabbed to death along with their 10-year-old daughter and 11-year-old houseguest.  The 8-year-old son, Josh, survived.  Doug initially told investigators the perpetrators were three white people.  But at trial, he said he had seen only one person, who wore his hair in an Afro.  Kevin Cooper is black.

Cooper had walked away from a minimum security where he was serving a burglary sentence and hidden in an empty house 100 yards from the crime scene at the Ryen’s home.  The police decided he committed the crime alone.

The weapons used in the murders included an ice pick, a hatchet and one or two knives.  Not only were there five occupants to overpowered by the killer or killers but Doug Ryen, the father, was a former Marine who was 200 lbs. and had a loaded rifle nearby.  How could Kevin Cooper, alone, have accomplished such feats?   That’s what ten judges on the Ninth Circuit United States Court of Appeals wanted to know.

Four of those judges joined Judge William Fletcher’s one-hundred page opinion in dissenting to the Court’s decision to deny a rehearing of Cooper’s appeal.  Six other judges also wrote separate dissents to the Court’s majority decision.  Judge Fletcher not only found the evidence to support Cooper’s conviction inconsistent and lacking, he accused the police of framing Cooper for the murders.

Judge Fletcher said the police are under heavy pressure to solve high-profile crimes.  When they think they know who committed the crime, they sometimes plant evidence to help the prosecution to result in a conviction.  In this case, Judge Fletcher highlighted a number of problems in the evidence in the case.

Cooper’s blood was found on a beige T-shirt left at the scene of the murders, but the blood was then found to contain a preservative, the kind used by police when they keep blood in test tubes.    After that a scientist discovered that a sample of from the test tube of Cooper’s blood which police held contained blood from more than one person.  This indicated to Judge Fletcher and Cooper’s lawyers that someone with access to police evidence removed blood and then refilled the tube with someone else’s blood.

There was also evidence that police ignored.  Two women told police that one of their housemates, a convicted murderer, had appeared with several other people late on the night of the murders wearing blood-spattered overalls and driving a station wagon similar to the one stolen from Ryen family.  The man was no longer wearing a beige T-shirt he had been wearing earlier in the evening, the same kind of T-shirt found at the murder scene.  That man also had a hatchet missing from his tool area, a hatchet that resembled the one found at the murder scene.  The women gave the blood-spattered overalls to the police for testing, but the police threw them away.   The police had decided that Cooper was the one they wanted.

Now that the federal appellate court has declined to intervene to stop Cooper’s execution, only California Governor Arnold Schwarzenegger can stop it.

Public officials always tout their programs as successes.  But sometimes that success is make believe.  When public officials are in charge of reporting the program’s results, the reporting merits watching.

The New York Police Department is now suspected of manipulating their crime statistics to make the results appear to show lower crime.  Compstat is a computerized mapping system that tracks criminal patterns credited with reducing major crimes.  But current and former officers have voiced concerns that the program has created intense pressure to reduce crime each year to reduce crime each year and has led some supervisors to misclassify major crimes.

A year ago, an academic survey that included more than 100 retired police officers who were captains and higher-ranking reported being aware of ethically inappropriate changes to crime statistics in the major categories of felonies measured by CompStat.  An investigation is underway by the Internal Affairs Bureau that crime complaints in the 81st Precinct in Brooklyn were intentionally downgraded to make the number of major crimes appear lower.

Now the police commissioner has appointed a panel to look into the integrity of the department’s internal crime-reporting system.  Commissioner Raymond Kelly has announced the creation of the Crime Reporting Review Committee and said the committee would have broad access to the people and documents to review the Police Department records, tracks, and audits its crime numbers.   He explained the panel was formed, not only to maintain the confidence of the public but because reliable crime statistics are necessary for effective planning and evaluation of crime-reduction strategies.

Of course, Kelly has always downplayed criticism of the program.  He said that already the police department’s Quality Assurance Division has been monitoring crime reports.  In reviewing 50,000 arrest reports a year, it found only a 1.5 per cent miscalculation rate.

The chief spokesman for the department, Paul Brown, explained the panel was created because there was a “lot of false or unfair accusations against the Police Department.”   The panel will have 3-6 months to complete its study.  It is composed of three members, all of whom have worked in the United States Attorney’s office in the Southern District of New York.  They are David Kelley, who was United States Attorney in that office from 2003 to 2005, Sharon McCarthy who was special counsel to Governor Andrew Cuomo when he was attorney general of the State of New York, and Robert Morvillo, a noted criminal defense lawyer who may be remembered for defending Martha Stewart.

Brown said the department had 100 people assigned to auditing, who routinely audit each precinct each year, examining at least 600 cases in each station house every 12 months.

Peter Vallone, chairman of the New York City Council public safety committee, has been gathering evidence for months to prepare for his own hearing on the issue.  He says he will now wait until the panel has delivered its conclusions.  He asserts his own belief that “the statistics were in fact being manipulated.”  He says he has spoken to many current and former police officers who have corroborated that fact but who have refused to go on the record.

In 2005, Mark Pomerantz as chairman of the mayoral commission created to monitor the Police Department’s project to root out corruption told the City Council’s public safety committee that the commission had sought to review reports of fraudulent claims for police overtime and charges of sexual misconduct and domestic violence by police officers, but was stymied by the department’s failure to provide information.

Angel “Fat Boy” Ortiz had a meeting near the North Philadelphia Amtrak station.  He met with James Venziale to discuss some business. The idea was to steal some heroin from Miguel Santiago with the help of Philadelphia police officers and then sell the heroin to drug dealer.  The problem was that the intended purchaser, the drug dealer, was an undercover DEA special agent.

Now three Philadelphia police officers are facing federal charges of planning the theft of 300 grams of heroin and selling it to a drug dealer.   Robert Snyder, Mark Williams, and James Venziale are Philadelphia police officers. ‘They are charged with four other people, including three reputed drug dealers and Snyder’s wife, Christal.

The Police Commissioner was aghast. He was planning to terminate the three police officers.

The police officers met with “Fat Boy” over several weeks and another apparent drug dealer, Zachary Young.  Their plan was for the police officers to stop a vehicle to make it appear to Santiago that the drugs were being lawfully seized by law enforcement.

Officers Venziale and Williams, on duty and in uniform, stopped a car occupied by Ortiz and the undercover agent.  Ortiz had just received the heroin from a courier.  Venziale and Williams handcuffed Ortiz and permitted the undercover agent to drive with the 300 grams of heroin.  Venziale and Willams then drove Ortiz away and later released him. Venziale and Williams later met with Ortiz, who paid the two officers $6,000.  Ortiz also met with Christal Snyder and paid her an unknown amount of cash.

The reaction to the indictment from many sectors of the community was disappointment.  Majeedah Rashid, director of the Nicetown Community Development Corporation, said the indictment diminished the community’s trust in the police.  “We work very closely with the community relations people there. It’s a long running relationship.  It’s unfortunate that this happens because you’re going to end up losing the trust of the community and we worked so hard to established.,” he said.

Ralph Wynder, an activist in the Allegheny West section and chairman of the Residents Coalition, a coalition of community groups in the Allegheny West and East Falls, said the indictment was troubling.  Wynder stated, “If the charges prove to be true, this will become a very disturbing series of events.”  He said his community has worked closely with the 39th District, the Police District to which the indictees belong, over the past 10 years.

Venziale, Williams, Robert and Christal Snyder, Ortiz, Young, and Santiago are all charged with conspiracy to distribute 100 grams of more of heroin and related counts, which include the charge against Christal Snyder of passing information between Ortiz and the three officers.  Santiago is in parts unknown.  The F.B.I. and the D.E.A. are looking for him.

Jon Burge, former Commander in the Chicago Police Department, is on trial in Chicago federal court, prosecuted for perjury by the U.S. Justice Department.  The charge is perjury, but the bulk of the evidence pertains to Burge’s torturing suspects, the prosecution attempting to prove Burge lied to cover up his tortures.

Prosecution witness Gregory Banks served more than seven years in prison before he was released when his conviction was overturned because his confession was coerced.  He described how Burge and two other detectives obtained that confession.  First, they left him alone in a room, handcuffed to a wall.   Burge came in with Sgt. John Byrne and detectives Peter Dignan and Charles Grunhard.  Byrne put the barrel of a handgun in Banks’ mouth and demanded a confession. When Banks refused, Byrne hit him with a flashlight, knocking him down, and the police beat and kicked Banks, still handcuffed behind his back.  Then Dignan put a bag over Banks’ head for a couple of minutes.  When they took the bag off, Banks offered to say anything.  But after Banks confessed orally, an assistant states’s attorney was called in to take his statement.  When Banks refused to give the statement, a detective took him to another room and threatened to repeat the torture if he refused to give a statement.  Banks gave the statement.

On cross-examination, Banks admitted being convicted of burglary and of being a member of the Black Gangster Disciple street gang for 20 years and of being addicted to heroin until four years ago.  Burge’s criminal defense lawyer, William Gamboney made predictable hay with Banks’ statement, challenging it item by item, to which Banks responded either that he did not remember or that statement was a lie.  Gamboney closed his cross-examination with the sarcastic proposition, of course, Banks was framed.

Banks was followed by fellow torture victims Melvin Jones and Anthony Holmes, who detailed their own experiences at the hands of Burge and his detectives.  The prosecution presented five victims of torture at the hands of Borge or the detectives under him at Area Two police headquarters during the 1970’s and 1980s.  The testimony of one of the victims, Andrew Wilson, was read to the jury in lieu of his live testimony, taking up much of two days.  Wilson died in prison in 2007, serving a life sentence for killing two Chicago police officers.  All five witnesses were gang members or convicted felons.  All but one confessed to mainly murder charges, claiming they were in fear of death or continued torture if they did not confess.

Burge rose to the rank of Commander before he was fired by the Chicago Police Department in 1993.  He is on trial for perjury in his testimony in a civil trial brought by one of the torture victims, in which Burge denied torturing and knowing about the torture of the victims.

Shadeed Mu’min was the last major prosecution witness to testify.  He described how he was interrogated 25 years ago by then-Lt. Jon Burge about an armed robbery, for which Mu’min was under arrest.  Burge pulled out a .44 Magnum pistol and emptied all but one round.  He then pointed it at the middle of Mu’min’s forehead.  After Burge carefully pulled the trigger three times, Mu’min still refused to talk, so Burge tried to put a plastic cover over Burge’s head.  When Mu’min passed out, Burge revived him and smothered Mu’min’s again, causing him to lose consciousness again.  On Burge’s third try, Mu’min offered to tell him what ever he wanted to hear.

On cross-examination, Mu’min admitted that weeks after his arrest he called Burge for help in getting his impounded car.  He also admitted he waited a year before he told his own lawyer about this alleged torture.  Mu’min admitted committing the armed robbery for which he was arrested and that his confession was true.  He admitted he discussed his claims of torture with other inmates in the Cook County Jail, where the other alleged victims of Burge’s torture were housed.  But Mu’min refused to meet with an investigator from the Office of Professional Standards, which investigated complaints against police, to identify a police officer who laughed at him when he was being tortured.  He said he wanted to put the past behind him.

Dana Panos, a family lawyer, was called to the witness stand by the government. She testified about a conversation she had with the defendant, Jon Burge, in the late 1980s.  She was a law student at the time and was introduced to Burge by a date in a South Side Chicago bar.  They talked for about 45 minutes, during which time Burge ridiculed her belief that criminals had any rights and admitted he had beaten an accused cop killer to get a confession.  Burge told her he was involved in the Wilson investigation.  She claimed Burge told her that if a suspect confessed to a crime which he did not commit, it was not an injustice because it would balance out; since the subject had probably committed some other crime for which he was not convicted but should have been convicted.  He told her criminal defense lawyers were useless and they interfered with the administration of justice.  Obviously that would mean a system in which the police act as judge, jury and executioner-so simple that way.  That way police get to inflict their own personal beliefs which some of them believe are more important than anyone else’s.

Before and during the prosecution’s case, the defense lawyers complained to U.S. District Judge Joan Lefkow that a number of witnesses the defense wanted to call were clamming up.  The defense claimed that the government’s case was having a chilling effect on Burge’s former colleagues, that they were afraid their testifying positively for Burge might buy them federal charges of their own. Ultimately, the judge ruled eight potential defense witnesses would be allowed to take the Fifth Amendment if called to the witness stand by the defense.

A much anticipated government witness proved to be letdown for the prosecution.  A 30-year veteran of the Chicago Police Department, former detective Michael McDermott testified under a grant of immunity.  In his testimony before the grand jury two years ago, he had incriminated Burge, but most of his testimony before the trial jury (the petit jury)- after he had “more time to reflect” – consisted of backpedaling, qualifying and denying his grand jury testimony.  He witnessed the interrogation of Shadeed Mu’min, he admitted.  When the prosecutor confronted McDermott with the grand jury transcript of his testimony, McDermott had to admit Burge put a plastic bag over Mu’min’s head.  McDermitt told the grand jury he saw Burge point a gun at Mu’min and was abusive, but at trial he wasn’t sure Burge held a gun and said his behavior was not abusive but only “inappropriate.”  McDermitt testified under immunity, but Burge’s defense attorney painted McDermitt as inclined to give the government what they wanted in fear of losing his police pension or his salary from the Cook County state attorney’s office as an investigator, where he is now employed.

Dr. John Raba was a prosecution witness who testified to his findings after examining Andrew Wilson after Wilson’s police interrogation.  It was Wilson, who died in 2007, whose testimony was read to the jury describing his torture at the hands of Burge, including pressing his chest, face and right leg against a radiator.  Raba was the medical director of the Cook County jail in 1982, when he saw Wilson’s wounds after his encounter with defendant Burge.  Dr. Raba was so shocked by his observations that he wrote a letter to Chicago Police Superintendent Richard Bizcezek, telling him Wilson had been beaten and electrocuted by Area Two detectives, noting Wilson had blistered burns on his chest, face and right leg, open wounds on his forehead, a split lip and gash in the back of the head that required stitches.  Bizcezek never answered the letter.

But there was a response.  Dr. Raba got a telephone call from Cook County Board President George Dunne, a powerful politician.  Dunne asked why Raba was getting involved in such matters.  Raba’s testimony furthered the government’s theory that many people knew or suspected that torture was being used by Burge and detectives under his command.  Although Burge’s lawyers claimed Wilson’s injuries did not match his descriptions of torture, Raba testified that after meeting twice with Wilson, he concluded the injuries he found on Wilson did match Wilson’s description of his torture.  Raba said the injuries were extremely unlikely to have been self-inflicted, as Burge’s lawyers suggested.

After the prosecution rested its case of about two weeks of evidence, Jon Burge took the witness stand in his own defense.  He denied torturing Anthony Holmes and denied he backhanded Melvin Jones in the face, shocked his genitals, struck him with a stapler or pointed a gun at him.  Burge admitted only going into the interview room and telling Jones, who was accused of murdering a state’s witness, how little Burge thought of him. Burge said he assigned two detectives to question Wilson and never saw half a dozen police in the room, as Wilson had claimed, nor did he hear any unusual screams.  Of course he denied pressing Wilson against a radiator.  Burge also denied telling Holmes’ attorney, a government witness, Sandra Watson, that a black box in detective Area Two “leaves no marks,” referring to a device to shock suspects.

The trial continues, and the result, as always with a jury, is uncertain.  One thing that is certain is that Jon Burge does not believe criminal defense lawyers are useless in the criminal justice system, as he puts his life in their hands every day he goes to court.

Stephen Caracappa and Louis Eppolito were convicted three years before of acting as assassins for the Mafia while they were employed by New York Police Department.    Finally, [in March, 2009] they were sentenced in Brooklyn by U.S. District Court by Judge Jack Weinstein, Eppolito to life plus 100 years with a fine of $4.75 million, Caracappa to life plus 80 years and a fine of $4.25 million.

The judge said the two defendants likely had hidden assets to pay the fines.  One asset that will not be seized, however, is their police pensions.  Both men have been drawing tax-free disability pensions from the City of New York since they left the police department.  Caracappa retired in 1992 as a first-grade detective.  He receives $5,313 a month.  Eppolito retired in 1990 as a second-grade detective and receives a $3,896 per month in pension.

Both detectives, who joined the police force in 1969, retired before they were charged with anything, so their convictions do not interrupt their pensions from the city.  Although first reports of the detective’s corruption surfaced in 1979, they continued to receive promotions in the police department.  Implicated a  number of times, they were never charged until in this prosecution.  The pensions are not subject to seizure for the fines due the federal government.

Under New York law, pensions due former public employees are treated as property in trust for the employee. Efforts to exact forfeiture of such pensions as penalty for those convicted of corruption have failed in the past.  In 2009, 450 corrupt former officials, judges and police officers were reportedly still receiving pensions despite their convictions.

Caracappa, now 68 years old, is gaunt, with little color in his face.  Eppolito is 61 and doing better but still a wreck.   They will have little opportunity to spend their pensions in prison, but their families can.  The testimony of the families of some of their victims at the sentencing hearing did not prompt either of the men to give up their pensions.

Caracappa’s and Eppolito’s trial [in 2006?] lasted 3 weeks.  It was built around the testimony of Burton Kaplan, a wholesale garment dealer who was involved in a number of schemes with people in organized crime.  Jimmy Breslin wrote a book about Kaplan, entitled “The Good Rat, ” which describes how Caracappa, using a police computer, helped track down a man named Nicholas Guido for the Mafia.  Caracappa made a mistake, however, and gave a wrong address with the same name, who was soon shot to death.

Caracappa’s and Eppolito were charged with accepting $4,000 a month payments from the mob for spying, plus tens of thousands extra for the occasional kidnapping or murder.  They disclosed the identities of witnesses and leaked information, compromising investigations.  In their first mob killing in 1986, they used the siren on their unmarked car to pull over a jeweler on a Long Island road.  They told Israel Greenwald they needed him to stand in a lineup to investigate a traffic accident.  Then they drove him to a garage, where he was shot to death.

At their trial, the detectives were convicted of murdering a capo in the Gambino family capo in his Mercedes-Benz on the Belt Parkway in New York.  The jury also found them guilty of kidnaping a man, putting him in the trunk of their car, and delivering him to a mobster, who then tortured the man for hours before killing him.

Following the trial in which they were convicted of racketeering conspiracy, the trial judge issued but did not impose a life sentence for each detective.  The judge stated he believed the five-year statute of limitations had run on the crimes the defendants had committed and therefore overturned the convictions.  The most serious crimes of which the two detectives were accused occurred in Brooklyn, including murders, in the 1980s and 1990s, prosecutors used more recent and less serious crimes, such as money-laundering and dope distribution in Las Vegas, Nevada, in 2004-2005, to bring the earlier acts into the conspiracy net as an ongoing criminal enterprise.  The judge did not believe the conspiracy could include the earlier acts, but the United States Court of Appeals differed and reinstated the convictions.

One of the ghosts of Hurricane Katrina has surfaced – again.  A fifth former police officer has been charged in federal court for covering up the killings of unarmed civilians in the days after Hurricane Katrina.  Ignatius Hills was charged in New Orleans federal court with obstructing justice and misprison of a felony.  Hills resigned from the police force less than a week ago, obviously in anticipation of this filing.

A week after Hurricane Katrina, police were called to the Danziger Bridge on a report that shots had been filed.  Lance Madison, a 40-year-old mentally disabled man, and James Brissette, who was 17, were both shot to death by the police.  Police arrested Madison’s older brother, Ronald, on eight counts of attempted murder of a police officer.  All those charges were later dropped, obviously charges trumped-up by the police to cover their wrongdoing.

Four other former police officers and one civilian have pled guilty to covering up the shootings.  They all plead guilty to plea agreements.  Hills has been charged by Information rather than Indictment, indicating he is going to plead guilty with a plea agreement.  The reason this is indicated by the filing of an Information is that a person has a right under the fifth amendment to the constitution to be charged only by indictment by a grand jury.  The government would not bother to file the Information unless Hills’ attorney, Robert Jenkins, had agreed to plead to it.   Hills is facing a maximum sentence of eight years.

The government Information claims Hills and others shot at unarmed people and then covered up to make the shootings appear justified.  Hills allegedly wrote a police report which accused Lance Madison of eight counts of attempted murder, even though Hills had no firsthand knowledge of wrongdoing by Madison.  The Information claims another officer dictated the report to Hills, who signed it, even though Hills believed Madison was being framed.

Hills is accused of getting together with other officers to develop false stories about the incident.  Those get-togethers included one particular secret meeting in January, 2006.  The government also accuses Hills him of giving false testimony when he testified to a state grand jury in October, 2006.