Oklahoma Criminal Defense Blog

“Don’t taze my granny,” Lonnie Tinsley cried.  He was yelling at the police he had called to help his 86-year-old grandmother in his home in El Reno.  Actually, he had called for help for his grandmother, thinking medical personnel would arrive.  The police arrived.  But the police didn’t listen to him.  When the grandmother, Lona Vernon, ordered the police out of her home, they decided she was being aggressive-as she lay in her bed-and used their tasers on her.

Tinsley had called for help, expecting he would get help from medical technicians.  But he got the police who had their own agenda, a dozen of them.  Police used their tasers on Mrs.  Vernon because she had taken an aggressive posture lying in her hospital bed.  One taser wasn’t enough, however, so another police officer shot her.  But the tasers followed a special move that was based on “officer safety.”  Officer safety required stepping on Mrs. Vernon’s oxygen hose until she suffered oxygen deprivation.

Meanwhile, the police saw what they thought was obstructive behavior from the grandson, so the police took him from the room, threw him to the floor, handcuffed him, and took him out to a police car.

Aggressive hospital bed posture is not a crime familiar to most citizens, but when police need to excuse their excesses, they must get creative.  When they’re in a hurry, however, their creativity gets transparent.  Suffocating grandmothers in their beds is a little hard to sell, except to the hard-core “police-are-right-no-matter-what” crowd.  No facts will sway this crowd.  They will find some cover to excuse the police no matter, no matter, no matter what the police do.  To them, everything the police do that is ethically questionable or even illegal has some way to justify it.

The police finished up on Leona Vernon by handcuffing her, roughly, of course, and taking her away, proud, no doubt, of nipping the aggressive hospital bed behavior that so threatened the peace and dignity of the commonwealth.

Some people just cannot imagine the police would do anything illegal.  Some people cannot imagine the police would lie under oath.  They’re just doing their job, they posit, so why would commit perjury?  Do they ever get caught?  No, so there is no risk to their perjury.  Whey would they abuse a citizen?   Because some police officers think the citizen had it coming.  Police deal in the blame business every day.  That judgmental attitude can make an impact on some police officers, those who come to have contempt for those whom they believe are criminals.  For those police officers, the legal system is an obstacle to their brand of justice, an obstacle they can circumvent on a daily basis.

When a police officer testifies he observed a traffic violation or a driver moving excessively in the front seat on a car, what judge will doubt him?  The police officer knows that.  It is futile for an arrested party to dispute it.  Only when external evidence challenges the statement of the police officer can some doubt be raised, never when it is a police officer’s word against the accused.  When this goes on for long enough, the result is all the wrongly-accused prisoner’s on death row in Texas.   It took irrefutable DNA evidence after years and years of questioning to prove these people did not commit the crimes of which they were convicted. What those reversed convictions show, however, is an underlying question about the truth in which convictions in all criminal cases rest.

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.

When you are arrested, you have the right to remain silent. Everyone knows that.  But if you simply maintain silence, the police can continue to question you until you finally talk.  That is the recent ruling from the United States Supreme Court.  If you want to protect your right to remain silent, you must, interestingly, speak up to assert that right.

In the case of Berghuis versus Thompkins, the Supreme Court decided by a vote of 5-4 in a split along well-known ideological lines not to suppress the statements of a suspect who incriminated himself after 3 hours of police interrogation.  Justice Anthony Kennedy wrote the majority opinion which decided that courts need not suppress statements made by defendants who receive the “Miranda” warning and do not expressly waive their rights and speak only after remaining silent through hours of interrogation.  Justice Sonia Sotomayor wrote her first major dissent.  She wrote that the majority’s decision “turns Miranda upside down” and “bodes poorly for the fundamental principles that Miranda protects.”

The case involved a Michigan man, Van Chester Thompkins, accused of shooting a man to death in 2000.  He was arrested a year later and read his Miranda rights.  He refused to sign a form to acknowledge he understood his Miranda rights.  He then sat through three hours of interrogation, silent.
Then, after two hours and forty-five minutes into the interrogation, Thompkins answered with the answer, “yes,” to three questions: “Do you believe in God?” “Do you pray to God?”  “Do you to pray to God to forgive you for shooting that boy down?”  His answer to the last question was introduced as evidence against him at his trial, at which he was convicted of murder in the first degree.  The U.S. Court of Appeals had ruled that statement should have been excluded because the prosecution could not prove Thompkins did not knowingly and voluntarily waive his right to remain silent, and it was that decision the U.S. Supreme Court reversed.

The famous 1966 U.S. Supreme Court decision of Miranda versus Arizona ruled that a “valid waiver will not presumed from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.”  It also said the government faced a “heavy burden” in trying to prove that a suspect’s waiver was knowing and intelligent.
Justice Kennedy in Berghuis acknowledged that “some language in Miranda could be read to indicate that waivers are difficult to establish absent an explicit written waiver or a formal, express oral statement.”  Justice Kennedy then said that decisions Miranda have diminished its language, and a more sensible rule put the burden on suspects to invoke their rights.

“A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police,” Justice Kennedy wrote.   He said that people who knew their rights and acted “in a manner inconsistent with their exercise’ might be presumed to have waived their rights, meaning that responding to police questioning in itself an implied waiver of the right to remain silent.”  As criminal defense lawyers know, just because the Miranda rights are read, many suspects do not understand their rights;  They often have the impression that is not really a right which they can actually invoke.
Justice Kennedy was joined in the majority opinion by Justices Antonin  Scalia, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts.

Justice Sotomayer’s dissent pointed out the majority opinion created a paradox.  “A suspect who wishes to guard his right to remain silent must, counterintuitively, speak.”  She said the principles flatly contradict earlier decisions from the court.  “At best, the court today creates an unworkable and conflicting set of presumptions.  At worst, it overrules sub silentio an essential aspect of the protections Miranda has long protected.”  She was joined in her dissent by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer.

Former federal Alcohol, Tobacco and Firearms and Explosives agent Brandon McFadden is in jail, having pled guilty to conspiracy to a drug conspiracy and reportedly telling a federal grand jury how he and Tulsa Police Officers broke the law with him.  Ryan Logsdon, the informant McFadden and Police Officer Jeff Henderson used to convict father and daughter Larry Wayne Barnes and Larita Barnes, recanted his testimony, resulting in the Barnese’s release from prison.  Henderson in on paid leave, waiting to be indicted.

Now more names are coming out, people who have been released from wrongful convictions and Tulsa police officers.  Bobby Wayne Hadley, serving a 20-year sentence for a drug conviction is expected to be released from federal prison.  The reason is stated in a petition filed in U.S. District Court in  Tulsa.  The petition states that an informant, said she lied about a fabricated drug buy and that was coached by two Tulsa police officers.

Rochelle Martin swore in an affidavit that Tulsa police officers Jeff Henderson and Bill Yelton told her to testify falsely that drugs were being sold at Bobby Wayne Hadley’s house. “My false testimony was solicited by Jeff Henderson, who was at the time a Tulsa police officer,” she stated in an affidavit.  “Jeff Henderson and Bill Yelton [another police officer] coached me on what they wanted me to say to the judge.  They drove me to the hearing together and told me to testify that I had been to Bobby Haley’s home and his salvage yard and that I had been present during drug transactions at those places.”

Haley would be the fourth inmate released from the revelations of this grand jury.  Besides the two Barneses, Demarco Deon Williams has been released from federal prison.  Fred Allen Shields had his federal conviction vacated.  The petition with Rochelle Martin’s affidavit is being considered by U.S. District Judge Terence Kern.  Neither Henderson, Yelton or John K. Gray, another Tulsa police officer implicated, has been charged with anything.  But that is not unusual because the federal process is slow and goes as wide as it can, rolling up everyone it can.  McFadden has reportedly implicated at least Henderson, while Henderson has been taking lie detector tests and holding press conferences to tell about it. His legal bills are being paid by the Fraternal Order of Police.

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.

Texas’ plan to hire hundreds of child abuse investigators with law enforcement backgrounds did not work out. The idea was to improve the investigative power of Child Protective Services with caseworkers who had better investigative techniques. After four years of trying, hundreds of the “special investigators”have quit the agency.

One-third of the positions are now vacant. Two hundred seventy three of the 431 investigators hired in the last 4 years have left. Those who have left have claimed the agency was ineffective. They claimed the job description was confused

Last year, three children from the Houston area died after they had been reported as possible abuse victims.  A child from Arlington died from being left in a hot car as the agency was contacting the family repeatedly.  The mother had a history of abuse and neglect, but no action had been taken to protect the child.

Spokesman Patrick Crimmins said the agency knew there would be difficulties assimilating law enforcement types into the agency. He admitted there had been friction but said the special investigators make the agency stronger. Some of those who have left claimed there was a major culture clash between the older, law enforcement types and the usually-younger, less experienced agency caseworkers.

One of those who left was Thomas Davidson, is a 40-year veteran of law enforcement.  He was a special investigator for 2 months with the agency in 2007.  “It just wasn’t the job I was led to believe,” he said. “It’s more of a caseworker than an investigator…”

The agency obviously envisioned making their caseworkers into better investigators, so they hired people with investigator backgrounds.  But those with investigator backgrounds were former police detectives whose former jobs gave them much more free rein.  “Book ‘em, Danno,” was not part of the Child Protective Services culture.