Oklahoma Criminal Defense Blog

Crime Scene Investigation is the premise for several television shows.  Known as “CSI, ” the various shows take place in different cities with a different cast for each.  Prosecutors have noticed that some of the half-assed cases they have presented at trial have been found lacking by jurors who later referred to case presented in the courtroom to their experiences watching “CSI.” Naturally, such prosecutors resented any fault-finding, so they have blamed the jurors, said the jurors expected “too much.”

Prosecutors usually pay lip service to the legal standard required for their cases, the well-known burden of persuasion articulated as “beyond a reasonable doubt.”   But they really do not want to be held to that standard because it really is a high standard.  What they want is to give the jury as much evidence as they can get and fill in the blanks with argument and the opinions of police officers posing as experts derived from the police training schools geered to a maximum level of high school.  There may or may not be enough to prove a case beyond a reasonable doubt in a given case, but prosecutors always use emotion to carry them to the line or over the line when things get close.   When the jury doesn’t buy it, it’s time to blame the jury.

Now some prosecutors actually question veniremen during voir dire to qualify them as trial jurors, asking them what their expectations are in the way of evidence.  Of course, these prosecutors would never admit that the news and entertainment media are full-time tools for the prosecution.  Look at all the crime featured at every news cast on every television station.  Look at all the reality  “cop shows,” where the suspect is followed in a death-defying chase, wrestled to the ground, hand-cuffed, all in full view of the camera, and then led away to a voice-over says, “every suspect is presumed innocent.”   This makes a joke of  the instructions of law that viewer later receives when he takes his seat as a juror because it has been told repeatedly by the television that “this is just a formality, but you really know he is guilty as sin.”  So much for beginning with the presumption of innocence.   Thus has television for decades inculcated every viewer into believing crime is everywhere, criminals need to be punished even if the technicalities and courtroom niceties cannot always be complied with.  It has brought the average citizen along to be a bad-guy-getting cohort of the prosecution rather than a guardian of the system of justice.   Jurors thus cannot imagine themselves threatened by a justice system with a lowered burden of proof.

So now prosecutors don’t think they’re getting a fair shake from jurors who may hold their feet to the fire by demanding a thoroughly investigated case rather than a superficial one?  This is sour grapes from people who have had it their way for way too long.  If jurors had required more thorough evidence in all those death cases in Dallas, the prosecution would not have wrongfully convicted so many to send them to death row.

Only now with DNA evidence can the factually innocent person prove he is truly innocent.  It is sad to think how many years sloppy evidence has been putting people to death in the American justice system.   That’s what happens when a district attorney is in office too long and the average person thinks the number one thing to do is fight crime – not decide justice.  And prosecutors complain jurors are making them actually prove their case with the scientific tools available?   And prosecutors only rejoinder is that it is too much trouble for them, and, besides, why don’t the jurors just take their word for it?  That’s why we have judges and criminal defense lawyers, to keep the system honest.

There have been studies of this claimed “CSI effect.”  The New England Law Review in 2007 published the results of the study by Simon Cole and Rachel Dioso-Villa, entitled “CSI and Its Effects: Media Juries and the Burden of Proof.”  Their conclusions were that this claimed effect did not exist except in the minds of prosecutors who lost cases along with some stories in the press that were generated from prosecutors.

Another study was done by Eastern Michigan University criminologists.  They found the  “CSI effect” had no independent effect on jurors’ verdicts, although they did find that jurors who watched CSI were generally more interested in issues surrounding criminal justice and the law.

Maybe CSI should start showing the police routinely leaking stories before trials to help poison the jury pool with the prosecution’s version of the facts, the way they did with the French diplomat, Dominique Strauss-Kahn.   Then they could show how the police case collapsed, and how all this illustrated the extreme nature of the press assassination that had taken place upon the accused before a trial could even begin.  That would be realistic, but it would be outside the story line.  Given its viewership and the proliferation of shows in different cities, the CSI script appears to be successful as it is.

It’s unusual when a fight breaks out in a courtroom.  All security jumps in to bring immediate order to the court.  However heated the words in court, nothing physical is tolerated.  So what to do when it is judges who get into a physical altercation with each other?

That’s what happened in Wisconsin in the Supreme Court.  Supreme Court Justice Ann Walsh Bradley, a member of the liberal faction on the court,  accused fellow Justice David Prosser, a conservative justice, of chocking her.  The Milwaukee Sentinel reported she claimed he put a choke hold on her in a choke hold during an argument.   She told the newspaper that when she demanded he get out of her office, he put the choke on her.   This had been a rumor until Prosser denied it , and Bradley then called the newspaper.

The argument took place as the Wisconsin Supreme Court debated the legality of Governor Scott Walker’s elimination of most of public workers’ collective bargaining rights.  It was an extremely heated issue.   Justice Prosser issued a press release denying the allegation.  It said, “Once there’s a proper review of the matter and the facts surrounding it are made clear , the anonymous claim made to the media will be proven false.  Until then, I will refrain from further public comment.”

The argument reportedly took place the before the Court’s June 14th decision that Dane County Judge Maryann Sumi erred in voiding the law that limited collective bargaining.  She had declared void the highly controversial law enacted against union powers.  The Court’s vote was 4-3, with the minority issuing a strong dissent.   It was a hot partisan issue in the legislature, in which the Republican majority had pushed for a decision by the court by June 14.   The legislative majority wanted a decision, favorable of course, by then because they were working on the state budget, and the Republican governor, Scott Walker, depended on expected savings from the law, which required public employees to pay 12 percent of their health insurance costs and 5.8 percent of their pension costs.

This judicial argument and this legislative push all took place as tens of thousands of citizens gathered/demonstrated at the Capitol to protest the new law curtailing public employee rights.  Once the law passed, opponents shifted their focus to Justice Prosser’s re-election to the Wisconsin Supreme Court, where everyone expected the new law to go for review.  Opponents of the law wanted to replace Prosser with a liberal justice so the law could be overturned by the Court.

Until then, Prosser had been considered a shoe-in.  Then his liberal opponent, JoAnne Kloppenburg, gave him a tight race.  Initial results of the election showed Kloppenburg had won by 200 votes, and she declared herself the winner.  Then a county clerk announced she had failed to report 14,000 votes in her county.  That county clerk had worked for Prosser.  More fuel to the continuing controversies.

After a recount lasting a month, bitter all the way, Prosser was declared the winner.  He was credited with 7,000 more votes than Kloppenburg.   The recount was finished 3 weeks before the Supreme Court issued its opinion on the public employee case.  Reports about the fight between Prosser and Bradley were that Prosser was upset that the opinion for the case might not be issued in the time frame the governor wanted.

Justice Bradley sent all justices an e-mail after the altercation to say that Prosser’s behavior was unacceptable.  Later she said she considered making a report to law enforcement but decided against it.    The Center for Investigative Journalism reported that the matter was reported to the Wisconsin Judicial Commission, which investigates allegations of misconduct by judges.

“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.

A retired Oklahoma City Police Department detective who worked as a contract employee of the Oklahoma State Bureau of Investigation has plenty of bad stuff to say about the Bureau.  Kyle Eastridge worked for the Bureau for  months on a federal contract.  He retired from Oklahoma City Police in 2009 after about 25 years on the force, the last 3 years of which were on assignment to the cold case squad?

Eastridge claims the field agents are at loggerheads with the forensic science division.  He also claims agents are lazy and have not followed up on DNA results linking suspects to murders. He gives examples.  Melissa Ann Moore was found dead in 1984 near Tulsa.  DNA was identified for a known suspect who was driving a car matching the description of a car seen where her body was found.  O.S.B.I. agents left information about the case with the local district attorney in 1984, 2002 and 2005.  Eastridge called the case agent, offering to obtain DNA testing on any other items, which Eastridge could do on an expedited basis because federal funds pay for Eastridge’s cold case investigation.  The agent declined, saying he did not have enough evidence to file a charge.

Eastridge said the case agent did not want others looking into the case.  Eastridge also said:  “The bottom line is they’ve known who killed this girl for years, and he’s never been arrested for it.  But do they know who killed this girl?  Eastridge takes evidence that proves this suspect was driving a car that matched the description of one seen at the place Ms. Moore’s body and car were discovered.  As any criminal defense lawyer will tell you, this is circumstantial evidence that, without more, would not result in a conviction.  It might lead investigators to more evidence, but Eastridge says this suspect ought to be arrested now.  Why?

Georgette Pless disappeared from Tulsa in 1992 and her body later found.  In March, 2009, semen from her body was matched by DNA to a Missouri prisoner.  Eastridge says the O.S.B.I. agent did nothing further after that, so he worked on the file for a month, obtained an arrest warrant, and the district attorney filed a murder charge.  It appears Eastridge did the right thing in this case.

O.S.B.I. has no original jurisdiction to investigate cases.   When a rural sheriff, police chief or district attorney has a criminal case that is too much for the local agency to investigate, often a homicide or other serious case, they ask the O.S.B.I.  to investigate and give their findings to the district attorney.  Only the district attorney can file an Information or seek a grand jury indictment to initiate a criminal charge.

That’s not good enough for Eastridge.  He criticizes O.S.B.I. agents for letting decide when, and if suspects should be arrested.  He says there is no legal prohibition from law enforcement making an arrest without the approval of the prosecuting attorney, and he thinks operating on his own is just fine.  He says sometimes investigators need to make arrests even if prosecutors do not want to file charges. “Let the D.A. decide to release a murder suspect that you have evidence on. That’s not going to happen, I guarantee you,” he said.

You can see Eastridge’s point.  Maybe the authority elected to do the job is not acting to Eastridge’s liking, so just go around him.  Instead of filing to be elected to that office, he will try to manipulate the elected official to pressure him into doing Eastridge’s bidding.  Eastridge claims he has evidence amounting to probable cause to justify an arrest, and assuming he has made correct judgements on what is admissible evidence and what is probable cause, judgements about which he has no legal expertise, he makes no reference to proof to satisfy a jury.  That is what the district attorney is responsible for, what he has to consider, proof beyond a reasonable doubt, and because the district attorney is responsible for taking any case all the way from filing  to presenting it to the jury, the district attorney is responsible for the case to the voters.  Eastridge wants to highjack this process and inject his own feelings, although he has received no such power from the citizen-voters.

There are some police officers and law enforcement agencies, not many, who love to dump a half-baked case in the lap of the district attorney.  That way they don’t have to do much work, just get the case filed by the D.A., even though with all the loose ends, the case in not ready to be presented to a jury.  Then, once filed, it is the D.A.’s problem alone, and those police officers, certainly not all of them, those police officers will perform no further work to help the district attorney get the case ready for trial.

When a murderer is sought, the public can forget sufficiency of evidence, issues relating to quality of evidence.  Eastridge is counting on that.  He doesn’t have to answer to the voters with too many adverse jury verdicts.  He sounds like the kind of guy who claims he can talk to someone he suspects of a crime, and then, based on a few minutes of conversation, tell a jury with confidence that he can sense the suspect is guilty.  And that should be enough for the jury- in his opinion.  He is someone who thinks he is entitled to steer the legal system by himself, but he needs to be elected to do that.

He should present himself and his ideas to the voters for their approval.  It’s easy to lecture others on public policy when one has no one to account to except one’s own local police union.  The American way provides that policy is decided by the public through the officials whom they elect.  The public can vote out those officials of whose actions they disapprove.

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.

Charlie Sheen is the highest paid actor in television today.  He also appears to be one of the more troubled.  His problems cannot stay out of the headlines.  Star movies such as Platoon and Wall Street and the hit comedy series, “Two and a Half Men,”   Sheen, son of well known movie star, Martin Sheen, has struggled with alcohol and drug problems for years.

“Two and a Half Men” is one of the most popular TV programs and one of the costliest for advertisers.  The average cost of a 30-second ad in the show is $226,335, according to Ad Age’s annual survey of ad prices for prime-time broadcast programming.  That price is just behind NBC’s Sunday Night Football and ABC’s Grey’s Anatomy.  CBS is concerned Sheen may not show up to carry on their prized television show, either this time or the next time.  For a while, his bad-boy image carried a little glamour, but as his antics have continued, his unpredictability is a liability to television producers and advertisers.

In the nineties, Sheen was a regular in the tabloids for his problems.  He reported struggling with use of ecstasy three years before, saying, “Ecstasy should be called the drug from Hell – because tha’s where it leaves you.”  His bad publicity goes back to 1990, when he checked himself into a drug and alcohol rehabilitation clinic.  In 1995, he was sued by a woman who claimed he struck her in the head when she refused to have sex with him.  But the apex was when was his appearance as a witness in the 1995 prosecution of Hollywood madam Heidi Fleiss in which he admitted he had ordered at least 27 prostitutes from madam Fleiss and ran up bills totaling $50,000.

After ending a six-month marriage to Donna Peal in 1996, , Sheen announced he was becoming a born-again Christian.  He said fast living was a lot of fun but “there is such a thing as too much fun.”

His latest problem had started Christmas morning, his third wife, Brooke Mueller, called the police to report a fight in the house they were renting in Aspen, Colorado.  They have been married since 2008 and have two children but they were legally separated before the fight.  Sheen’s version is that he was fighting about Mueller’s partying and she went nuts on him. He admits to breaking her glasses but denied attacking her. Mueller’s version to the police, so the police claim, was that Sheen choked her and threatened her with a knife by holding a swtichblade knife to her throat, but since then she has quit talking to the police.  Sheen posted $8,500 bond that night and was released.
Later Sheen entered rehab “as a preventive measure,” prompting invention of the word “prehab.”  Mueller, who has said she has no plans to divorce Sheen, then went into rehab.

Sheen faced a prison sentence with this charge, but a plea bargain apparently reached with the prosecution would deliver Sheen to the Pitkin County Jail for a spell, maybe up to thirty days.  There, the cells look like dormitories, floors are carpeted, a nearby hospital prepares the meals for lunch and dinner, supervised by a dietician.  Charlie Sheen had prime rib on Christmas, causing furor in the tabloids, but that was the regular menu that day for all inmates.

Pitkin County Sheriff Bob Braudis presides, and he notes that most of his inmates are pretrial inmates, presumed innocent of the charges they face, which criminal defense lawyers are acutely aware but many law enforcement types are not.

The jail has a capacity of 24 but usually averages nearly half that, supervised by a staff of 12.  The sheriff hopes inmates will leave better men and women. The county’s website gives the jail’s mission as a safe, secure environment and services to “enhance physical and mental wellness and encourage self rehabilitation and successful re-integration to society for all inmates.”
Prisoners spend their days in the common room, watching television, reading, playing cards or otherwise passing the time.  They are allowed to place collect telephone calls, exercise  and visit relatives and friends regularly.  They can also go outside in the jail parking lot so long as they stay inside a fence.

Sheen’s latest problem had  seemed to be worked out, but a new wrinkle has developed.  Sheen was set to serve his jail sentence by coaching actors at Theater Aspen by day and return to jail by night.  Now reports are that the deal has fallen through, reportedly because an Aspen jail official tried to reduce the daily time Sheen would spend at the theater, out of jail.  And Sheen, a chain smoker, would have been banned from smoking outside the jail, faced a longer probation period, and would be restricted to eating only the meals provided by the jail.  That plea deal would have amended the most serious of the charges to a misdemeanor, the charge that could send him to prison for three years.  Sheen is still getting $1.8 million per episode of “Two and a Half Men.”

I can’t imagine this kind of a sentence being handed down in Oklahoma or for other domestic abuse defendants, especially with multiple offenses. However, it appears that at least some in the Hollywood crowd have been deemed to be above the law. With these examples of nothing punishments it’s no wonder Sheen keeps repeating the same criminal offenses. Our system was designed with the intent that the punishment would fit the crime, but it certainly appears to be failing with this domestic abuse case.

A former A.T.F. agent is in jail, awaiting prosecution for a fabricated drug buy.  Brandon McFadden was an agent for the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives for seven years before resigning last year.  He was arrested by the F.B.I. and is now in the Tulsa County Jail awaiting prosecution in U.S. District Court there.  McFadden pled guilty soon after he was arrested to participating in a drug conspiracy.

McFadden is alleged to have coached a drug informant and fabricated a drug buy on May 8, 2007.   Not charged but implicated along with McFadden in the crime is Jeff Henderson, a Tulsa Police Officer.  Upon pleading guilty, McFadden named Henderson as a co-conspirator in the drug conspiracy, saying he and Henderson stole drugs and money and set up drug dealers to sell drugs on their behalf.

The drug buy with the coached informant led to the conviction of Larita Annette Barnes and Larry Wayne Barnes of federal drug charges.  They were both released from federal prison last July because the informant, Ryan Logsdon, said he lied about the drug buy.   Larry Barnes had served about a year on a 5 ½ year sentence.  Larita Barnes had served about a year on two concurrent 10-year sentences.

Jeff Henderson was put on paid leave from the Tulsa Police Department in April after the local newspaper published the report about the Barnes’s being released from prison.  He should be getting ready for prison because McFadden will do whatever he can to help the U.S. Attorney to convict him.

Tulsa County District Attorney Tim Harris has ordered a review of the cases in which Henderson had been involved, which could number more than 100.   Harris announced in court that he could not release any information because there is an ongoing grand jury investigating matters, but Harris’s office acknowledged that it was contacted by Jane W. Duke, special prosecutor assigned to investigate corruption in law enforcement in Tulsa.  She is U.S. Attorney for the Eastern District of Arkansas.

This sort of thing does not come as a surprise to criminal defense lawyers.  Some people, however, believe uncritically in “law enforcement,” they will alibi without reason for these false-swearers.   Some people will continue to believe such “law reenforcement” types are the good guys, in spite of clear evidence they are the bad guys, law-breakers, perjurors, those who bear false witness and wrongfully put people in prison.  There are those who believe that just because someone wears a uniform, that someone can do no wrong.  That is a dangerous attitude, that someone can commit no wrong.  It is not the principle that drives our American system of justice, and that is why McFadden is being prosecuted.

Governor Brad Henry has indicated the Pardon and Parole Board may be able to examine old convictions, now pardoned, and determine which parolees are actually innocent of the crime for which they were convicted.  The governor says he is unable to make such a determination.

Such a finding is necessary for someone convicted of a crime to later have the records of his conviction expunged, or sealed up.   Oklahoma has been at the forefront of wrongful convictions, thanks to Joyce Gilchrist, the discredited forensic chemist who was employed by the Oklahoma City Police laboratory and testified in many criminal trials in Oklahoma County District Court.   Later examinations of the evidence by scientists and DNA evidence have proved innocent too many of the defendants Gilchrist helped convict.

The Oklahoma legislature is still working out the procedures for those wrongfully convicted.  One new wrinkle just this year is a provision that allows one to expunge the records of his conviction – if …

“4. The person has received a full pardon on the basis of a written finding by the Governor of actual innocence for the crime for which the claimant was sentenced.” Oklahoma Statutes, Title , Section 18 (Supp: 2009).

How is the Governor to determine “actual innocence” so he can make that written finding?  No one knows.  That is why he has passed the ball to the Pardon and Parole Board.  But this board does not know how they will do it, either.

Gene Weatherby was given a pardon by Governor Henry in 2007.  He cannot seal up the records of his conviction, however, until the Governor gives him a written finding of “actual innocence.”  So the Governor asked the Pardon and Parole Board to investigate and make such a finding, if appropriate.

The Pardon and Parole Board might better have been consulted about these new duties, according to Board Chairwoman Susan Loving.  “This is huge that we now have this responsibility,” she said. She said the Board might need to seek more money from the legislature for this, as staff members have been directed to develop a new procedure for such requests.

“The Pardon and Parole Board is not a jury,” Board executive director Terry Jenks said.  “We don’t hear witnesses and evaluate evidence.  We need to figure out some options about where we are going.”   As criminal defense lawyers know, however, the board does hear witnesses on a regular basis, although not in such a formal setting as in a courtroom with rules of procedure and evidence.

Weatherby was convicted in Oklahoma County in 1984 of fatally stabbing a woman.  Joyce Gilchrist testified mud and fibers on Weatherby’s shoes proved he had been in the woman’s home.   An FBI chemist later testified that Gilchrist’s findings were unsubstantiated, but there was other evidence presented to the jury that convicted Weatherby, including testimony from the stabbed woman herself.    So, it is not perfectly clear from the record whether Weatherby is innocent, and that is why Governor Henry wanted someone else to give it a closer look.

An inmate in the Oklahoma County Jail has a good chance of dying.  In 2006, the Oklahoma County jail had a mortality rate higher per 100,000 inmates than Los Angeles County Jail, Cook County Illinois, among many others.  Three inmates have died there this year.  Fourteen inmates died in the jail in 2007 and 2008.

The U.S. Justice Department keeps track of the facilities with which it does business, including the business of housing federal inmates.  There is no federal jail in Oklahoma City, so the Justice Department contracted to place its inmates in the Oklahoma County Jail.  Until last year, that is, when a D.O.J.  report found so many serious deficiencies that the federal inmates were all moved out.  They were sent to the Grady County Jail, which was very happy to be paid the higher per-prisoner rate.

The D.O.J. report found high instances of violence between detainees, lax supervision of inmates, poor suicide prevention, and poor health care.  Any local criminal defense attorney can verify especially the latter: poor health care. Whenever one of my clients with a medical condition has to spend any time in the jail, either pretrial or post-trial, I cringe.  The greater the medical needs of an inmate, the less likely those needs will be met.  Send all the letters you want, communicate on a daily basis with the authorities as needed, it still may not be enough to get the attention of the medical personnel to get the right medication or treatment as needed.

The jail’s spin on all this?  “…[A] natural death is a part of life,” Mark Myers, spokesman of the Oklahoma County sheriff’s office said.  He said this year’s deaths have been from natural causes.  He said the “majority” of deaths from the previous two years have also been from natural causes.  He further said the jail calculates that .01 percent of the 44,000 inmates who come to the jail annually will die while in custody.  Many inmates are in poor health when they come to the jail, he correctly points out.  If it weren’t for the federal government’s study, such a statistical approach might make you think all those deaths were just statistical inevitable.  Are the inmates in Los Angeles or Chicago just that much healthier?

Jail administrator Major Jack Herron said a new company is overseeing the jail’s health care now, and about 10 additional staff and a full-time physician have been added in the last few months for inmate’s health.

My suggestion is that one check back in a year, and one will notice the same problems, and one will hear the same responses from the jail, something like, “we just added a new wing to really improve things, and we just gave most of the walls a nice new coat of pain, etc., etc.” This has been going on for years, so every time the latest study comes out, sudden improvements are announced just in time to respond to the latest criticisms.  Then things return to normal.

In May, 2007, Christopher Beckman died after a struggle with jail guards.  Two Oklahoma County jail guards, Mark Isch and Gavin Littlejohn, were indicted in February for that death.

The three who died this year did, indeed, die of natural causes.  The medical examiner made that determination, not the jail.