Oklahoma Criminal Defense Blog

A confession, or what the prosecution will call a confession is usually very compelling evidence to a jury.  And when other evidence in the case is inconsistent with guilt, prosecutors hardly ever slow down on the train to conviction.  It has taken DNA evidence to prove scientifically in case after case that the confession given was false.  Of the 289 convictions that have been reversed from later presentation of DNA evidence, about a quarter of them involve false confessions.  Of course, DNA evidence is available in only a fraction of crimes, so there is no telling how many false confessions have put innocent people away – executed them.

One such case was in Oakland, California.  It arose from the death of Antonio Ramirez.  A minor named Felix was the person charged with murder. After Ramirez was shot 7 times, police arrested Felix, 16 years old at the time.   It was late, the police isolated him without a lawyer and refused his requests for his mother.  The police hammered on him until he started telling them what he thought they wanted to hear.   That is the usual and expected progression given enough time to wear down the suspect, as the police know.

When police asked for a diagram of the crime scene, Felix’s efforts were so inaccurate the police never showed his product to the jury.  He told police he went one direction to escape, but they had to correct him.  When he described his escape route without mentioning an alley located there, the police added the alley, so he adopted it into his statement.

When the police asked him about the gun, Felix said he didn’t have a gun.  The interrogators went ballistic, of course, and started yelling at him. At this point, he was definitely feeling threatened, so he made up a detail that would later help him.  He told them he gave the gun to his grandfather.  As was later proved, both his grandfathers were deceased.

Once gone through, the story was ready for the police to present.  They taped it, sure they had fashioned a winner.  But the police had forgetten to feed one critical detail to Felix.  When he read the complaint in court days later, he learned for the first time the date of the crime to which he had confessed.  On that day, the day Antonio Ramirez was shot to death, Felix had a perfect alibi.  He had been locked up in juvenile detention.

Even with that alibi, however, his criminal defense lawyer was afraid to go to trial.  That’s how powerful confessions, however trumped up, are to a jury.  Juries simply cannot believe someone would confess to a crime they did not commit.  Even judges do not want to believe someone would confess to something they did not do.  The many trumped trials during the Stalin purge trials in the Soviet Union all featured confessions.  They were all coerced, yet even those close to the events believed the condemned never would have confessed unless they were guilty.  At least they thought that until their turn came to enter the Stalin show trial machine, they confessed falsely, and were executed.

Psychological studies show they do, however.  Especially children, the mentally ill and mentally retarded do, as well as those who are drunk and high.  All such people share a vulnerability to coercion and suggestion.  Many are eager to propitiate authority figures, many are impulsive.  Just as Felix did, children often believe they will be put in jail if they continue to resist the importunities of police and believe they will get to go home if they cooperate with the police.  This is the opposite of what a mature adult would expect, so it runs counter to what jurors expect anyone else to believe.

New Jersey’s Supreme Court has recently ordered an overhaul in the procedures judges and juries use to treat evidence from a police lineup.  Police have always resisted encroachment on their own rules for lineups.

The Court recognized decades of research that shows the traditional procedures used for lineups have problems.  The result has been that innocent people convicted and sent to prison.   The problem has been that police, often unconsciously, give subtle hints as to which person the witness should identify.  These hints never show up in any record, so they cannot be questioned.  Both the police and the crime witness even deny that such hints exist, yet they do exist, and they have influenced the identifications of suspects in court. When that identification is the sole or strongest evidence of a suspect’s guilt, the flawed identification can be the basis for the conviction of an innocent person.

Finally there are consequences for police who refuse or fail to follow proper procedures. Courts have always been reluctant before to sanction such careless or deliberate conduct by the police.  New Jersey is one of the fifty states, but there are more than 16,000 law enforcement agencies in the country that deal with suspect identification.  Many remain skeptical about the research that faults their present procedures.  Many resent the suggestion that they could be having an affect on the accuracy of the responses of witnesses in the identification.  This resentment is no less because, research shows, the influence is unintentional.

Most police identifications are conducted the same way they have been for years and years.  Most use photos rather than an array of actual persons because photos are much easier to assemble.  The standard requirement is that all the suspect photos are supposed to be of similar race, facial hair, age so as not to make one of them obviously prominent.

More than 2,000 scientific studies have shown problems with witness accounts.  Add to that at least 190 people who were convicted by eyewitness testimony and later proved to be wrongly convicted by that gold standard of science, DNA evidence.   Those who have studied the field estimate that there are about 75,000 witness identifications each year, and some studies suggest about a third are incorrect.

Larger police departments are taking the lead in adopting the new procedures which the the New Jersey court has mandated in its jurisdiction.  In Dallas, elaborate precautions are taken to keep out any taint that might cause a question later in the courtroom or on appeal.  Witnesses are sent to a special unit of the police department that is dedicated to lineups and the detectives there have no other relationship to the case or the witnesses.  The witnesses are read instructions and shown the photos by specially trained police officers.  The photos are shown one at a time, rather than all at once.  At each photo, the witness is asked to indicate how confident he or she is about their reaction to that photo.  The entire process is recorded by videotape in case any questions later arise during the judicial process about what happened in that identification.

Naturally, the police in Dallas resented new procedures at first.  They felt their integrity was being challenged.  But after thorough training that included explanations of memory functions and the psychology behind the dynamics, the procedures began to gain some believers in the police department.   Veteran detectives notices over the years that during lineups that police gave small facial cues when a witness picked a suspect the police had in mind.

Police departments rarely make any changes until wrongful convictions become an issue, and there have been many DNA exonerations of death row inmates from convictions in Dallas.

Denver Police Department is another one that has adopted some of the new procedures about six years ago.  When they really looked at the procedures they were using, they concluded their practices were suggestive.  They have found that the new procedures help, rather than hurt, their investigations.  Only 15 miles away in Aurora, Colorado, police are doing things the same old way.  Specifics may be hard to come by since there are is no written policy on lineups.  They do not follow the National Justice Institute guidelines because state law does not require them to do so.  Ordinarily, the investigating officer in the case conducts the lineup, and it is important to him to see that the witnesses are careful in their identifications.  However, no particular consistent steps are taken to prevent influencing the identification.

For years judges have disallowed evidence of studies that explained these problems in lineups, so the juries never heard any evidence that offered the least question to the emotionally powerful testimony of an eyewitness.  The juries never got a chance to see anything behind that testimony, what did or might have suggested or tainted that testimony that was now so positive and unshakable in the courtroom.

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.

The State of Illinois has abolished the death penalty.  Governor Pat Quinn signed the bill passed by the legislature in January.  At the same time, he commuted the death sentences of 167 prisoners sitting on death row.  Their sentences were commuted to life without parole.

Quinn was elected governor in 2009.  During the campaign for election, he supported the death penalty when “applied carefully and fairly.”  Only upon the announcement of his signing the bill did he reveal whether he would sign the legislature’s bill.

Governor Quinn’s own words explain his actions better than paraphrase.  He said, among other things:

As a state, we cannot tolerate the executions of innocent people because such actions strike at the very legitimacy of a government.  Since 1977, Illinois has seen 20 people exonerated from death row.  Seven of those were exonerated since the moratorium was imposed in 2000.  That is a record that should trouble us all.  To say that this is unacceptable does not even begin to express the profound regret and shame we, as a society, must bear for these failures of justice.

Since our experience has shown there is no way to design a perfect death penalty system, free from the numerous flaws that can lead to wrongful convictions or discriminatory treatment, I have concluded that the proper action is to abolish it.  With our broken system, we cannot ensure justice is achieved in every case.  For the same reason, I have decided to commute the sentences of those currently on death row to natural life imprisonment, without the possibility of parole or release.

I have found no credible evidence that the death penalty has a deterrent effect on the crime of murder and that the enormous sums expended by the state in maintaining a death penalty system would be better spent preventing crime and assisting victims’ families in overcoming their pain and grief.

The debate in the legislature focused on more than a dozen death row prisoners who were found to have been wrongfully convicted, including one who was within 50 hours of execution.  Opponents of the death penalty also focused on its costs.  Legislators had help from well-known death penalty opponents like South African anti-apartheid leader Bishop Desmond Tutu and Sister Helen Prejean.  Also among them were actor Martin Sheen, whose son has saturated the airwaves lately proving how much psychological help he needs by his exaggerated denials that he needs any help, intervention, or drug rehab.

Proponents of the death penalty focus on the victims’ families, argue fairness and claim it is a deterrent.   Deterrent is an issue Governor Quinn addressed.  Clear conclusions of cause and effect in human behavior issues like this are hard to come by.   Each side insists their side is the intuitive, obvious path, but empirical proof is thin.  Criminal defense lawyers will tell you that defendants in homicide cases think they will never be caught, if they had any thoughts about any penalty at all.

Fifteen other states have abolished capital punishment.  Illinois is one of several states that have lately reconsidered the death penalty.  New Jersey abolished it in 2007.   New Mexico’s legislature abolished it in 2009, but there have been some efforts to reinstate there.  Connecticut’s legislature passed a bill last year to abolish it, but the governor vetoed the bill.

Two men convicted of rape, robbery, and abduction in 1979 have joined the increasing crowd of exonerated from DNA evidence.  They served more than three decades behind bars, more than any others cleared by DNA evidence in Texas.  The DNA proof of innocence in this case was the first to reach back as far back to Dallas convictions in the 1970s.  Dupree is the twenty-first person exonerated by DNA evidence from a Dallas County conviction.

Cornelius Dupree, Jr., now 51 years old, and Anthony Ray Massingill, now 49, were the two inmates who got the good news. Dupree was going to be released in a Dallas courtroom after having been paroled last summer after serving 30 years of a 75-year sentence.  Massingill, however, will have to remain locked up awaiting  the results of another DNA test relating to a second rape conviction for which he is serving a life sentence.

Dupree and Massingill were convicted of attacking a 26-year old woman and her male friend at a pay phone outside a liquor store on an Interstate highway.  The man and women were confronted at gunpoint and carjacked.  The man was allowed out of the car, and the girl was raped at gunpoint.  The two perpetrators debated whether to kill her, then threw her out of the car, threatening to kill her if she called the police.  She was found unconscious on the highway.

About five days after the crime two, two miles from the liquor store which was the original abduction, two unidentified men tried to sell the woman’s rabbit fur coat  Her stolen car was found in the parking lot.  Authorities do not believe those two men are Dupree and Massingill.   But Dupree and Massingill were arrested two miles from the location of the abduction about ten days after the crime because they matched the description of men wanted in similar case.  At the arrest, Massingill had a gun, but Dupree was unarmed.

Once arrested, Dupree and Massingill were mistakenly identified by the rape victim in a photo lineup, but her male companion could not identify their photos.

Once the matter arrived in the courtroom, however, Dupree and Massingill became officially became victims of another unreliable eyewitness identification.  Both the young woman and her male companion pointed out Dupree and Massingill to the jury as the perpetrators.   In an indication of the unreliability of the identification in this case, the young woman had trouble at trial of keeping straight which defendant was which.  The criminal defense attorney must have raised some serious questions about her certainty of that identification, but, of course, the prosecution told the jury the evidence was air tight.

Massingill was given three 10-year sentences and a life sentence from this liquor store abduction plus a 75-year sentence from another 1979 rape and robbery.  Dupree received a 75-year sentence for the liquor store robbery, but he was not tried for and rape or abduction.   He too was a suspect in the other 1979 rape and robbery, but the grand jury declined to indict him for that crime.

Dupree wrote the Innocence Project for help.  In 2007, the Innocence Project accepted the case.  It contacted the Dallas County District Attorney’s office about the case in 2008, and the District Attorney’s office then asked the crime lab to search for any evidence in the case.  The lab found it had pubic hairs from the rape exam that contained genetic from two men, the two men who committed the abduction, rape and robbery in question.  The DNA did not match either Dupree or Massingill.  That DNA evidence has not been matched to anyone, but it may not have been entered yet into the national DNA database.  Even if the lab does not find any DNA to compare for Massingill’s other case, he may be freed because both crimes were thought to have committed by the same men as the crime committed with Dupree.

Dupree would have been released on parole earlier than last summer on his 75-year sentence if he had admitted his guilt.  Such admission is required for rehabilitation, of course.  The rehabilitation system is not constructed for the innocent.

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.

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.

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.

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.

The Tenth Circuit Court of Appeals has affirmed U.S. District Court Judge Ronald A. White’s dismissal in September, 2007, of a pitiful lawsuit brought by former Ada District Attorney Bill Peterson against author John Gresham and others.  The lawsuit was filed in the Muskogee in the United States District Court for the Eastern District of Oklahoma by Richardson.  Richardson is certainly a capable lawyer, but the journalists noted that he had called a news conference when he filed the lawsuit and “could not be reached” to comment on the affirmance of the dismissal.

Former Pontotoc County District Attorney Bill Peterson filed the lawsuit over John Gresham’s book, “The Innocent Man,” which described Peterson’s conviction of two innocent men based in reliance upon the testimony of one Glen Gore and the evidence of jailhouse “snitches.”  Dennis Fritz, then a schoolteacher, and his friend, Ronald Williamson, a former minor-league baseball player, were the two convicted in Pontotoc County District Court in 1982.
Fritz received a life sentence and Williamson received the death penalty.  Both men were later exonerated by DNA tests in 1999.  Not only were the accused men proven to be innocent, but the prosecution’s star witness, Glen Gore, was proven by DNA evidence to have been the perpetrator of the murder.  He is now serving a sentence of life without parole, tried for murder after the release of Fritz and Williamson.

Gresham’s book details the faulty police and prosecution work that never investigated Glen Gore, that relied on “confessions” that resulted form questionable interrogation of the suspects as well as the reliance on jailhouse informers, known as “snitches.”   Snitches, as every criminal defense lawyer knows, are motivated by presenting as much damaging evidence as possible against whoever is being prosecuted.  Their situation requires them to help the prosecution as much as possible, and they have a motive to lie, have a motive to create false evidence.  Whether they do create false evidence in a given case is difficult for a jury to judge.  A reader of “The Innocent Man” wondered just how much instigation there was from the police and prosecution to obtain the snitch testimony, but it was clear that the prosecution never hesitated in taking it at face value to help their case.

Joining Bill Peterson as co-plaintiffs were former state criminologist Melvin Hett and former Shawnee police officer Gary Rogers.  Defendants in the case were John Gresham, well-known attorney Barr Scheck, Gresham’s publisher, Doubleday Dell Publishing Group and Robert Mayer, author of “The Dreams of Ada,” a nonfiction book about the 1984 murder in Ada, Oklahoma, and the conviction for that murder of Tommy Ward and Karl Fontenot.  Ward and Fontenoy, who are still in prison, were convicted by jailhouse snitch testimony, similar to that used to convict Fritz and Williamson.

This lawsuit never did not appear to have any legs when it was filed because it was based on a claim of libel brought by public officials. This is First Amendment territory, the “free speech” area that courts have repeatedly ruled should remain hands-off to the courts, and a complaint brought by public officials, who have been held to be less deserving of court protection.  The Tenth Circuit Court opinion pointed to an Oklahoma Statute that provides “criticism upon the official acts of any and all public officers” cannot be considered libelous unless a defendant makes a false allegation that official engaged in criminal behavior.

When the lawsuit was filed, Ron Fritz was quoted as saying, “ The only reason [Peterson’s] filing this is he’s trying to wipe the egg off his face because he convicted two innocent men.”  It certainly looks that way.