Oklahoma Criminal Defense Blog

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.

Federal prosecutors have been using a shortcut for years to get convictions in white collar crimes.  The shortcut is prosecution for what is called “intangible right to honest services” under the United States Code, Title 18, §1346, which provides that “the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest services.”

In Skilling v. United States, the U.S. Supreme Court put a crimp in the federal government’s routine prosecution of white collar crimes by its calling everything a depravation of honest services.  The decision this week involved Jeffrey Skilling, the former chief executive for Enron, the Houston corporation that famously crashed, eliminating many pensions and savings accounts in the process.  According to the Supreme Court, evidence that an executive had a conflict of interest or acted against the best interests of the company or its shareholders is no longer sufficient, of itself, to establish a case of mail or wire fraud.

Federal prosecutors have been prosecuting under this statute since 1988, and, as so often happens, have become more and more aggressive, that is to say, more creative, claiming a theory of undisclosed breach of fiduciary duties by public and private officials as the basis for fraud.  Even a conflict of interest in which the defendant did not benefit personally has become enough for a conviction, on the theory that the harm suffered by the company or the public was sufficient violation of the statute. .

The government argued that Skilling was guilty under the honest services theory as part of a conspiracy with Ken Lay, Enron’s chairman to mislead investors about Enron’s true financial condition.  Lay, now deceased, was himself convicted under this theory, for inflating artificially the company’s stock price.  The evidence in Skilling’s trial was that Skilling did not benefit directly from the misrepresentations, notwithstanding the shareholders suffered extremely and the company itself undeniably suffered annihilation.

The Supreme Court in the Skilling ruling narrowed use of the statute to a more limited range of activities.  Honest-services fraud “does not encompass conduct more wide-ranging than the paradigmatic cases of bribes and kickbacks,” the Court stated.  From now on, defendants accused of violating §1346 of Title 18 of the U.S. Code must have received some benefit from his or her conduct, regardless some harm was in fact inflicted as a result of that breach of duty.

The government argued to the Supreme Court that “undisclosed self-dealing by a public official or private employee.”  The Supreme Court was unpersuaded and said that, even if Congress really did intend to criminalize such conflict of interest without proving a bribe or kickback, composing such a statute would be difficult without being so vague as to be unconstitutional.

But the Supreme Court did not define exactly what constitutes a bribe or a kickback, although it said honest services fraud usually involved payments from a third party who is not a deceived party.  With common fraud, the victim is deceived into paying money or delivering property; honest services fraud, however, does not require the victim to receive any benefit, the victim being a company or the public, so long as the defendant obtained the benefit, a bribe or kickback.

Although the Supreme Court found error in Jeffrey Skilling’s conviction and remanded the case back to the Fifth Circuit Court of Appeals for reconsideration of a new trial, the Court did not find §1346 unconstitutional.  That would have been a serious problem for the government, considering the number of convictions obtained over the years under this statute.    Instead of invalidating the statute, the Supreme Court construed the statute as capable of narrower application and therefore salvageable.

The biggest impact on this limitation of §1346 will more likely be in the prosecution of corporate executives for conduct that harms their companies.  From now on, §1346 will not apply to simply deceiving a company or keeping one’s position or the value of one’s stock options because there is no type of bribe or kickback.   Misleading investors or inflating a company’s stock would not support a mail or wire fraud prosecution unless there were some proof the defendant received financial benefits that were undeserved.

The impact on the prosecution of public corruption cases likely will not be as great, since most such cases usually involve a defendant receiving some financial benefit to which he is not entitled.  Such cases will stay within the tighter kickback parameters of an honest services fraud prosecution as required by the Skilling decision.

The scorecard in this opinion was extremely complicated.  The Skilling opinion was written by Justice Goldberg, Part I of which was joined by Chief Justice Roberts, Justices Stevens, Scalia, Kennedy, Thomas, and Alito; Part II of which was joined by Chief Justice Roberts, Justices Scalia, Kennedy and Thomas; Part III of which was joined by Chief Justice Roberts, Justices Roberts, Justices Stevens, Breyer, Alito, and Sotomayer.  Justice Scalia filed a separate opinion concurring in part and concurring in the judgment, joined by Justice Thomas and Justice Kennedy joined except as to Part III; Justice Alito filed an opinion concurring in part and concurring in the judgment; Justice Sotomayer filed an opinion concurring in part and dissenting in part, in which Justices Stevens and Breyer joined.

Much of the opinion dealt with impartial jury and voir dire issues due to widespread negative publicity of the Enron matter, but the Court found no error in the district court’s handling of those issues.  The district court had incorporated many of the defense’s suggestions for question into a 14-page questionnaire sent to all potential jurors and then conducted individual voir dire of the panel before the 4-month jury trial.

A food market in New York City has an unusual method of dealing with suspected shoplifters.  First the security guards or other staff member takes the identification away from the suspect.  This is followed by a photograph, in which the suspect must pose, holding up the items they are accused of stealing.  Then the suspect is given the choice of paying the store, unless they want their photographs posted or the police called.

This is a market whose clientele is almost exclusively Chinese.  For sale are frogs, turtles, eels, frozen duck tongue and congee.  It has 30 video monitors in its surveillance system.  When the store management seizes someone, they usually fine them $400.  If the suspected shoplifter doesn’t have the money, the store holds their identification and the suspect is allowed to go get it.

There is a tradition from China that permits this practice of catching suspected  shoplifters and demanding they pay up.  There is also a traditional slogan that some of these markets post. It reads, “Steal one, fine 10.”

The legality of this practice is uncertain.  New York law allows so-called “shopkeepers’ privileges.”  Such privileges lie somewhere between a police arrest and a citizen’s arrest.  New York law also allow some civil recovery, in which retailers may use the threat of a civil lawsuit to recover substantial settlements for theft, even minor theft.  However, threatening to report someone for committing a crime might be interpreted as extortion.

Critics of this practice say the accused shoplifters are deprived of basic civil rights and the protections of open, legal proceedings, are denied a lawyer, freedom from coercion.

A community advocate in Chinatown claims it is extortion.  Steven Wong also says that  putting up pictures in public and calling someone a thief who has never even been charged with anything is a violation of their civil rights.

Police say they have not received any complaints, nor has the district attorney’s office in Queens.  No one knows how widespread the practice is or whether threats of arrest are always used.  But the practice is definitely used in certain predominantly Chinese neighborhoods in New York.

Many of those grabbed say they have no money.  But, says the manager of one of the markets, they somehow come up with the money when faced with public humiliation and being arrested, often after calling family and friends for cash.

One woman took two bags of grapes worth about $10, one store manager said.  The woman first said she had no money, but when pressed with the usual choices, she came back with eight new $50 bills.  Others just say, “Run the credit card,”

The store posts photos of accused shoplifters, along with warnings in Chinese and English that read, “If we catch, we will take your photo for records and your fine will be $400 or you go to prison.”   The manager says because the police do not always arrest the accused shoplifters-unlike in Oklahoma.  In Oklahoma, the police always come to pick up the accused shoplifter;  they transport to jail the suspect who has been arrested by a citizen at the store.  Some of the stores display photographs near their cash registers of those arrested, along with their names, addresses, social security numbers.  Some also have notations like, “stole medicine” or “thief.”   Some of the same photos are shared by several stores, some displayed on the front doors.

Few of those arrested have spoken publicly after being wrongfully accused.  One woman said when she was falsely accused in front of a crowd of shoppers, she began weeping.  Another woman claimed the false accusation damaged her reputation and has caused her mental anguish.   Both events made news in Chinese language newspapers, causing the store managers to apologize and promise they would train their employees better and use more sensitivity in their treatment of suspected shoplifting.  Maybe they would quit parading suspected shoplifters up and down the aisles, announcing their capture.

In New York, a retailer may sue someone who has stolen an item of any value for the retail price of the item up to $1500 if the item is not resalable plus a penalty ranging from $75 to $500, depending on the price of the item.  This is procedure separate and apart from criminal prosecution.

Oklahoma law has a provision similar to that of New York.  Oklahoma law provides that a civil action may be brought for the recovery for items taken from a store.  The person found liable for such taking may be required to pay for the retail price of the item taken if it is unsalable or the percentage of the diminished value of the merchandise due to the taking-plus the attorney fees and costs incurred in the bringing the collection action.   Exemplary damages may also be assessed, damages by way of example, against the taker of merchandise.  These penalties are specifically provided in addition to any criminal penalties that may accrue to anyone convicted of shoplifting.

Joe DeFede is a retired gangster. He oversaw the garment district in New York during the 1990’s.   He was the acting boss of  the Luchese family.  He had a Cadillac, a driver, three horses stabled at Aqueduct and a home entertainment center with Greek columns like those in ancient Greece.  He walked around with thousands of dollars in his pocket.

Now he has lost everything.  At 76, he wears therapeutic sneakers and a Hawaiian shirt.  He spent five years in prison, paid staggering legal fees, and entered the witness protection program, which he then left.

Now he is practically broke.  He lives with his second wife, Nancy, on an annual income of about $30,000 from Social Security, her pension from working at a bank, and an annuity.  He has to make payments for his home, his car and a recent hip replacement, and he sometimes falls  behind on his payments.

He is not the only gangster to struggle.  Frank Lucas, who earned and then lost millions as a heroin dealer, was living in a public housing project in New Jersey.  The film “American Gangster” gave his checking account new life.  Now he is starting his own fashion line.  Henry Hill is another retired gangster who was down on his luck.  He was a Luchese family associate whose life formed the basis of the movie “Goodfellas.” He sells cookbooks, his memoirs, and signed posters online at his Web site.  These are all resourceful people, hustlers from an early age, who must and do come up with different schemes to survive without a 401(k).

This describes DeFede and his wife.  They have no friends, no job, no certainty about their future.  They live by their wits.  Mrs. DeFede has sold jewelry and last year she worked as a cashier at a clothing store for $7.50 an hour.   Her job included cleaning the toilets, and she lasted 3 days.  She has written a book entitled, “Life with Little Joe.”  The book is a biography of their journey from the riches to life in the witness protection program.  The book has not sold, but the DeFede’s still hope it will give them some security in their old age, even though their agent spent a year trying unsuccessfully to sell the manuscript.

They are filled with rage and bitterness at their situation.  Mr. DeFede is so anxious about his future, mainly his financial future, that he not only sleepwalks but, while sleepwalking, punches walls with his fist.  He has punched his wife during some of these episodes.

DeFede was 70 when he got of prison.  He was told a contract had been taken out on his life because he was suspected of stealing a million dollars from the Luchese family.  He denies he stole, of course.  He and his wife live in a community in New York for those 55-and-older.  They have grandchildren who live in San Diego but cannot afford to travel there.  Holidays are painful because of this.   Mrs. DeFede’s oldest friend from Brooklyn moved into the neighborhood to be with her.  But after a while, they quit talking, in part because the friend started dating a retired cop.
DeFede and his wife don’t have much money, but they have each other.  She makes suggestions for him to order from the menu.  They watch television together.  He drives her to the beauty parlor as she back-seat drives from the front seat.  They go to the flea market together, even though they don’t have the money to buy much.

The State of New Jersey last December became the first state to abolish the death penalty since the U.S. Supreme Court in 1976 allowed states to impose the death sentence.  The legislature enacted the measure after a special state commission recommended the abolition a year before. New Jersey has not executed since 1963.  After the 1976 Supreme Court decision, New Jersey reinstated the death penalty in 1982..  The state had chosen lethal injection and built an elaborate facility to carry out the injections, but never used.

The commission found the death penalty was more expensive than life in prison and had not deterred murder.  The legislature’s bill was approved by Governor Jon Corzine, a death penalty opponent, December 27. 2007.

New Jersey’s replacement of the death penalty with life without parole spared eight inmates.  Juries had sentenced four dozen people to the death penalty, but all but eight had been overturned in appeals.  A state appeals court ruled that the state’s lethal injection procedure was unconstitutional, and the state rewrote the procedures, but they were never finalized and expired in 2005.

One of those awaiting execution was Jesse Timmendequas, a sex offender whose crimes sparked Megan’s Law.  Timmendequas was convicted of murdering 7-year old Megan Kanka in 1984.  As a result New Jersey enacted a law requiring law enforcement agencies to notify the public about convicted sex offenders living in their communities.  Other states have copied this law, certainly including Oklahoma.

Last year,  the legislatures in Nebraska, Montana, Maryland and New Mexico debated bills to repeal those states’ death penalties, but each measure failed, often by a slim margin.

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

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

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

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

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

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

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

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

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

Former Illinois Governor Rod Blagojevich’s trial has begun.  Recently,  the first day of jury selection (voir dire) for the federal corruption trial took place.  The Pepperdine University law graduate is accused in 24 counts of trying to sell the U.S. Senate seat vacated by President Oboma when he resigned his Senate seat.  U.S. District Judge James Zagel began screening a pool of almost 100 potential jurors.  The judge got through 29 potential jurors.   Their identities are not public.  They are addressed by number.

Blagojevich was in celebrity mode-or maybe running-for-office-mode.  Smiling broadly, he waved and shook hands with supporters when he arrived at the courthouse.  He posed for cell phone camera photos for some on request, as his wife, Patti, tugged on his arm to get into the courthouse.   “The truth shall set you free,” he said to reporters.   He kissed one supporter who held up a sign supporting him.  He hugged one man who said, “God bless you, Governor. I’m praying for you.”

Inside the courthouse, Patti stepped up to reporters and television cameras and told everyone of Blagojevich’s innocence.  She thanked everyone who has supported her husband since his impeachment and said she was glad to get the trial underway.

The ex-governor’s older brother, Robert, of Nashville, Tennessee, also accused, arrived and entered the courthouse outside the roped-off area reserved for the ex-governor, and sat at a separate table in the courtroom.  He left for lunch while the ex-governor and his wife ate sandwiches in the courtroom.

The judge spent considerable time inquiring about the jurors’ exposure to publicity about the case.  Most had seen or heard something, but they said they could nevertheless be fair.  This selection process is expected to continue for several days.

Jury selection is a critical portion of any trial.  Likely defense lawyers will be looking for jurors, probably blue collar, who would identify with their client’s background from humble roots.  It is common belief that most jurors buy into the prosecution’s view from the beginning in the belief that a defendant must be guilty if he is accused.  It is that bias that criminal defense lawyers fight from the first minute to the last minute of any trial.  Defense lawyers focus on the requirement for unanimity for a verdict, and one of Blagojevich’s attorneys, Sam Adams, Jr., is known to focus on persuading just a certain few members of the jury during a trial.

Judge Zagel questioned an algebra teacher, a legal assistant, a computer lab technician, a retired customer service representative, and an insurance actuary.  When the customer service representative said she had trouble remembering words and names.  “Welcome to the club,” the judge retorted.  He asked another, who worked for his wife, if his wife was a difficult employer.   Another potential juror was a former precinct captain who said she would ask for guidance from her heavenly father to help her decide guilt or innocence.

Flashbacks on jury selection recall Blagojevich’s predecessor, Governor George Ryan, who was convicted of corruption in a federal trial.  Ryan’s trial almost resulted in a mistrial when several of the seated 12 jurors had to be replaced by alternate jurors during the trial, including two of them during actual deliberations after the close of all evidence.  That required deliberations to begin all over with the new members.  The judge decided to make replacements after it was discovered some of the jurors had concealed arrest records during voir dire.

Prosecutors claim they have 500 hours of secret recordings of the ex-governor.  Of course, the F.B.I. leaked the tapes.  Blagojevich claims the tapes, when listened to in their entirety, prove his innocence.  He is facing a maximum of 450 years in prison and $8 million in fines.

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.

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.

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.