Oklahoma Criminal Defense Blog

State by state, fewer juveniles are being tried as adults.   In Roper v. Simmons, the U.S. Supreme Court decided that the death penalty could not applied to juveniles who younger than 18 at the time of the offense.  The Court based this decision on the “general differences” which distinguish them from adults, namely a lack of maturity and greater susceptibility to peer pressure and underdeveloped character.  That was in 2005.

Since then, studies have concluded that older adolescents differed significantly from adults in their capacity to make sound decisions and benefitted more from systems that focus on treatment rather than on incarceration.   And since those studies, state after state has legislated changes in how juveniles are treated in the legal process in the belief that for youthful offenders, the juvenile justice system is better able to redirect their behavior in part because of the availability of social services.

In January, the Massachusetts legislature introduced a bill to raise the age level of adulthood for purposes of criminal prosecution.  North Carolina and Wisconsin are considering the same action.  Since last year, Connecticut no longer processes all 16-year-olds as adults.  It will do the same for 17-year-olds next year.  Illinois has recently transferred some of its low-level offenders younger than 18 into the juvenile system.

Thirty-seven states have set the age of adulthood at 18.  The federal government, including the District of Columbia, have the same age.  Eleven states use the age of 17 as the age of adult responsibility.   That age is 16 for New York and North Carolina.

North Carolina has defeated these changes for two years, mainly because of the cost.  The North Carolina Sheriff’s Association has said it makes no sense to take a system that is already lacking in the necessary funding and add two more categories of age groups.  The Association has opposed legislation to transfer 16-year-olds and 17-year-olds to the juvenile justice system.
With all the tight budgets around the country, increasing costs for any reason is a hard sell.

One study by the Vera Institute projected the cost of transferring 31,000 16- and 17-year-olds to the juvenile system at $71 million a year.  However, the study also projected $123 million a year savings to society if there were fewer arrests and fewer inmates in jail and prison as a result of lower recidivism.

The juvenile justice system requires greater funding because it costs more to prosecute a defendant in the juvenile system.  The New Hampshire House of Representatives voted overwhelmingly in 2008 to raise the age defining a juvenile from 17 to 18, but the measure died in the finance committee because of the projected cost.  A typical juvenile system has a higher staff-to-offender ratio and programs dedicated to treatment and rehabilitation.

There has been a separate system for juveniles for many years, but, in1978, a move began to hold younger teenagers responsible in adult courts.  It began in New York after Willie Bosket killed two people in a subway and received only a 5-year sentence, the maximum for a juvenile offender.  There was public outrage. The legislature promptly enacted the Juvenile Offender Act, which lowered the age for adult offenders to 13 for murder charges and 14 for other major felonies.  It remained at 16 for other crimes.  Thereafter over the next two decades, mostly in the 1990s, nearly every state followed suit.   The age of adulthood was lowered and the crimes for which juveniles could be prosecuted was increased.

All states retain the option of prosecuting youth for the most violent crimes, regardless of the recent trend.  Such cases are a small minority, however.  Out of a million juvenile prosecutions nationwide in 2007, only 9,000 cases were sent to adult court.

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.

Since the attacks of September 11, 2001, a vast system has grown up to collect information about Americans has grown up.  No one knows how many programs exists within it or even who many people it employs or how much it costs.  It is the largest, most technologically advanced in our history.  It is designed to collect, analyze information about thousands of Americans, many of whom have been charged with a crime, feeding information from the F.B.I., local police, state homeland security and military criminal investigators.

Such snooping is new to America, but Israel and Britain, among others, have had such domestic security.  There are 3,984 federal, state, and local organizations working on domestic counterterrorism.  The F.B.I. is building a database with the names and certain personal information whom a local police officer or fellow citizen believes is acting in a suspicion manner.  It is accessible to an increasing number of local law enforcement officers, so it may end up as public records.

Some law enforcement agencies have sought to learn more about Islam and terrorism, so they have hired trainers.  These have included self-styled experts whose views on Islam and terrorism are considered inaccurate and counterproductive by the F.B.I. and U.S. intelligence agencies.  Yet the Department of Homeland Security sends the state and local agencies in its network intelligence reports with little helpful guidance.

Of course, everyone in government believes in the program, certainly the players in the  executive branch of the federal government.  Their instincts are all toward security.  “The old view is that if we fight terrorists abroad, we won’t have to fight them here’ is just that – the old view, “ Department of Homeland Security Secretary Janet Neopolitano told police and firefighters.  The Obama administration claims its local approach is the preferred approach, but the effectiveness of its programs is difficult to assess.

Neopolitano is a former governor of Arizona, which built one of the most extensive state  intelligence bases outside New York to combat illegal immigration.  “See Something, Say Something, “ was the catch phrase in Arizona.   Now, traffic signs in Washington, D.C. ask motorists for “Terror Tips,” and to “Report Suspicious Activity.”  Now, Neopolitano has enlisted as partners in her campaign Wal-Mart, major league baseball, Amtrack, and hotel chains.  She compares this fight against terrorism to the cold war fight against Communists.

Now in Arizona, members of the Maricopa County Sheriff’s Facial Recognition Unit use a type of equipment common in war zones, recording 9,000 biometric digital mug shots per month.  Now along the Mexican-U.S. border, the U.S. Customs and Border Protection flies predator drone along the border equipped with real-time, full motion video cameras.  These are the same aircraft as used in Afghanistan, Iraq, and Kosovo, manufactured by General Atomics.  Hand-held, wireless fingerprint scanners are being sold to police departments to check motorists identity.  Such scanners were used by American troops to register residents of neighborhoods in Iraq.

Special operations forces fighting overseas demanded technological advances that are now used at home.  In combat that technology enabled the quick use of biometric identification, captured computer records and cellphone numbers to give the troops the ammunition to launch their next surprise raid.  Now Department of Homeland Security has helped the Memphis Police Department purchase surveillance cameras that monitor high-crime housing projects, problem street corners, and bridges and other infrastructure.  It helped to pay for license plate readers and helped with the costs of setting up the crime analysis center in Memphis.  The D.H.S. has given Memphis $11 million total since 2003 in homeland security grants, most of which Memphis used to fight plain vanilla crime, not Al Queda.  There is no such thing as spending too much money to fight crime, so long as the taxpayers are willing to keep paying the bills.

Memphis is using the new equipment.  The police department all information it can get from government and private industry.  It now has daily updates on the names and addresses of subscribers from the utility company.  Instead of waiting for a patrol officer in the field to decide which license number to input, the officers now just drive around using one of their fancy new license plate readers installed on the hood of the car read and transmit to the center every license
they drive by.  The computer in the vehicle will tell the officer in the field the name, address and criminal history of the vehicle’s owner, along with the names of any one else who lives at that address with a criminal history.

The F.B.I. has 90,000 sets of fingerprints stored in Clarksburg, W. Va.  Stored there are fingerprints from this country with those collected by American authorities from Saudia Arabia, Iraq, Afghanistan and Yemen.  Now the F.B.I. has developed sharing its fingerprints files with D.H.S. and the Department of Defense fingerprint databases.

Meanwhile the F.B.I. maintains a top-secret vault on the fourth floor of the J. Edgar Hoover building. Kept there are the profiles of thousands of Americans, none of whom have been even accused of a crime.  Instead, the profiles are of people who have acted in a suspicious manner to any deputy sheriff, police officer or neighbor.  This should be a concern for all citizens, not just criminal defense lawyers.

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.

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.

Evidence of other crimes introduced at a trial is so clearly poisonous that the rules of evidence generally prohibit such evidence.  Intuitively, an observer knows the impact such evidence would make on a jury – regardless of the strength of the evidence of guilt offered for the charges being faced.  Such evidence would have a fatal impact upon a verdict.

Evidence of “other crimes evidence” is not admissible to prove a person’s character in order to prove the person acted in conformity with such behavior under the Federal Rules of Evidence, Rule 404(b).  It is similarly prohibited under the Oklahoma Rules of Evidence, Rule ??-ck this rule online.

However, evidence of other crimes may be admissible for other purposes, such as proof of guilty knowledge.  The United States Supreme Court found such a circumstance in Huddleston v. United States, 485 U.S. 681, taking the case on certiori from the Sixth Circuit Court of Appeals.

Huddleston was charged in federal court with one count of selling stolen property in interstate commerce and one count of possessing stolen property in interstate commerce.  Both counts related to portions of a shipment of stolen Memorex videocassette.

The evidence presented at trial was that a trailer containing over 32,000 blank videocassette tapes was stolen from an Overnight Express yard in South Holland, Illinois.  The manufacture cost of each videocassette tape was $4.53.  Soon after the theft, between 2 and 6 days after the theft, Huddleston contacted a manager in Ypsilanti, Michigan, seeking to sell at least 500 blank Memorex videocassettes for a price between $2.75 to $3.00 per tape.  He ultimately sold 5,000 tapes, which he delivered to various customers.

Undisputed at trial was whether the tapes were stolen. The only material issue at trial was whether Huddleston knew the tapes were stolen.  To do so, the government introduced evidence of “similar acts, ” and the trial court ruled that the evidence had “clear relevance” as to Huddleston’s knowledge.  The first piece of such evidence was the testimony of a store record owner, who testified Huddleston offered, just two months before the offer to the Ypsilanti manager, to sell him new 12″ black and white television sets for $28.00 a piece.  Huddleston indicated he could obtain several thousand of the television sets. The store owner purchased 38 of the sets.

The second piece of evidence of “similar acts” was the testimony of an undercover FBI agent posing as a buyer for an appliance store.  He testified that Huddleston, one month after the Memorex tape offer, offered to sell him a large quantity of Amana appliances, 20 refrigerators, 2 ranges and 40 icemakers, for $8,000.  The appliances were delivered, part of a shipment that was stolen.  They had a value of about $20,000.

Huddleston testified he did not know any of the items were stolen.  At the close of the trial, the prosecutor argued that Huddleston was not on trial for the other appliances, and the trial court instructed the jury that they were to consider the evidence of the similar acts only in reference to Huddleston’s guilty knowledge that the Memorex tapes were stolen, not to prove Huddleston’s bad character.  The jury convicted Huddleston, and you can bet it was because of the evidence of the “similar acts.”  Understandably, Huddleston’s lawyers argued on appeal that he had been subjected to improper prejudice, to no avail.  The Court cited Federal Rule of Evidence, Rule 403, which provides relevant evidence may be excluded if the trial judge finds “its probative value is substantially outweighed by the danger of unfair prejudice.”

The government did not prove at trial the television sets were stolen.  Huddleston’s lawyers urged that was critical.  The Supreme Court considered different levels of certainty the trial court, before admitting such evidence, ought to make by way of preliminary finding before admitting the evidence of similar acts.  Instead of the “clear and convincing” standard urged by one panel of the Sixth Circuit Court of Appeals or the “preponderance” standard by another panel of the same Court.

The Supreme Court decided that the evidence had been introduced at trial for a proper purpose, it fit the requirements as stated in the text of of Rule 404(b), and that was enough to make it admissible.  The television sets need not have been proven stolen to be admitted.  No preliminary finding was necessary by the trial judge.  It was up to the jury to make its own conclusions about whether the television sets were stolen in its verdict.

Violent crime in East Orange, New Jersey, has fallen by two-thirds since 2003.  Why? Officials in East Orange believe it is because of the high-tech gizmos they have installed around the city, including gunshot detection systems and software that analyzes crime data
instantaneously.

Jose Cardero has been the police director since 2004.  Before that he was in charge of New York City Police Departments anti-gang program.  For East Orange, he developed a database in his spare time.  That database enabled the police department to follow and analyze
crime data without waiting for paper reports to be collated.  The network cost $1.4 million.  Of that, $1.1 million has come from grants and forfeiture funds.

Then the city added upgrades, including a wireless computer system for all police patrol cars, video surveillance in high-crime areas, community patrol system for residents to report crimes via text messages, a grid system showing the location of patrol cars, and a gunshot detection system that tracks the source of shootings.  East Orange police claim the response time will be measured in seconds.

The sensors that are to be installed work in a system with surveillance cameras which are to designed to see find crimes and potential crimes by recognizing certain behavior as it is viewed: someone raises a fist at another person; a car slowing down as it approaches a person
walking on a deserted street at night.   The system is designed to record and digest into its database actions observed by the sensors, be analyzed, and then instructed that certain behavior is a crime.  When the surveillance cameras observe those actions again, the system alerts that the designated crime is in progress.

Digisensory Technologies, an Australian company that makes the sensors, says the sensors will always recognize the behavior it has been told is a crime.  Once the camera sees and the sensors recognize the behavior, an alert is sent to the police department’s nerve center, where a police officer can take a closer look at the pictures to verify whether a crime is actually in progress and a computer program sends the information to a laptop in a patrol car near the scene of the observed behavior.

Cardero wants criminals to know they are being watched.  He believes publicity about his technological program is good for that reason, as well as making residents feel safer.  He believes that the real value to the technological program is its impact on those who are deterred from
committing a crime from fear of detection.

The program is not without its critics.  Dennis Kenney is a professor of criminal justice at John Jay College of Criminal Justice, who is skeptical about the program because the sensors can pick up so many innocent actions, like lining up at an ATM, that the system could be overloaded.
He suggests monitors would be constantly watching every ATM because there would be so many false positives they would have to screen out so many false positives, and then, to make up for it,
monitors would have to screen out so many things it would defeat the purpose.

Peter Scharf, a professor of public health at Tulane University, is another sceptic.  He suggests there is no evidence that increasing the rate of information going to patrol cars will make significant difference unless the cars are driving faster.  He co-authored a study of gunshot
detection systems used in Hampton and Newport News, Virginia.   However, Scharf points to the case of snipers John Allen Muhammad and Lee Boyd Malvo as an example of how sensors could have taken existing pieces of data, such as car description, pattern of behavior, type of weapon, and alerted police to imminent shootings.

East Orange offers a recent case to tout their system.  When a car was reported stolen, the pursuing officer of a stolen vehicle automatically activated a virtual perimeter of cameras in the area, providing other patrol cars the information they used to make a prompt arrest of the suspect.

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.

So many federal agents were moved to counter-terrorism investigations after the 9/11 attacks that the prosecution of more traditional crimes could not be given much attention.  Carter Stewart, newly-appointed United States Attorney for the Southern District of Ohio is going to change that.

Stewart’s district includes Cincinnati, Columbus, Dayton and all of southern Ohio.  “I would like to have more resources go back to our bread-and-butter cases,” Stewart said.  By “bread-and-butter,” Stewart referred to his priorities: financial crime, mortgage fraud, public corruption, environmental crime and the exploitation of children.  Criminal defense lawyers know those are traditional areas of federal prosecution because local law enforcement usually do not have the expertise or resources to pursue crimes in those areas.

Financial crimes and mortgage frauds obviously require experts in tracking down long, often sophisticated paper trials, sometimes in dealings local law enforcement personnel have never heard of.  Public Corruption focuses on the wrong-doing of state and local politicians, so state and local prosecutors have an obvious conflict, assuming they even want to pursue the wrong-doers in any given case.  Environmental crimes require specific expertises and can cross state lines.  Exploitation of children, most commonly prostitution of children, often requires investigations across state lines as the prostitutes are moved to locations like truck stops in various cities.

In Oklahoma, federal prosecutors have continued to prosecute the crimes they traditionally pursued, in addition to national security/counter-terrorism: more commonly those in the areas of drug distribution conspiracies, violent crimes, public corruption, and white collar crimes, child computer crimes, and gun possession charges on previously-convicted felons.

The headquarters of the F.B.I. for years after 9/11 decreed that counter-terrorism shall dominate all resources.   What was surprising was how much withdrawal there was from other areas of investigation in some districts.  In those years after 9/11, Ohio had several cases of alleged terrorism since 2001, including the case involving three men from Toledo convicted last year of plotting to recruit and train terrorists.  Authorities also prosecuted three loosely-linked terrorists over four years, including Iyman Faris, also known as Mohammad Rauf and sometime F.B.I. double agent, was convicted of helping in a plot to destroy the Brooklyn Bridge at the request of Khalid Sheikh Mohammed, the alleged architect of the 9/11 attacks.

Carter Stewart is following the lead of U.S. Attorney General Eric Holder, who has instructed new U.S. Attorneys to return to basic areas of prosecution.  Stewart’s top priority is still counter-terrorism but he has not decided on this next most important emphasis. But he is taking a close look at financial crimes.  “With today’s economy and the issues that we’re facing, I think that’s a direct result from fraudulent activity,” he said.

Two off-duty Oklahoma City Police department sergeants have been charged with “Drive-by Shooting.”  Sgt. Diron Carter and Sgt. Michael McKethan  were arrested, posted $25,000 bond each and were released.  Carter is a eight-year veteran and McKethan is a seven-year veteran of the police force.

The law against “drive-by” shootings was the result of gang shootings and was enacted to punish them.  From the facts made public about these charges, it doesn’t look a “drive-by” shooting took place at all.  It looks like the police officers are overcharged here, but that is par for the course for state prosecutions.  Criminal defense lawyers face this every day.  Unlike federal prosecutors, Oklahoma at least, state prosecutors routinely file charges that stretch to the absolute maximum penalty any charge possibly supportable under the law.  It is called “overcharging” because the charge does not fairly describe the nature of the offense.  The police are very much aware of this and usually involved in it.  So these police officers, who have participated for years in this  practice of over-charging and have no doubt enjoyed thus using this leverage to squeeze bad guys, to intimidate them to plead guilty, are now facing its wrath.

What happened in this ?  The facts alleged are that Carter and McKethan, off-duty at the time, went to Night Trips, a local strip club.  McKethan reportedly spoke to one of the strippers, whose child may be the child of McKethan. Police received a call that shots had been fired outside the bar, and witnesses reported that a man in a white sport utility vehicle was throwing  bottles as he drove through the stip club parking lot.  When the witnesses confronted the two men in the sport vehicle about their conduct, an argument ensued.  Eventually, the passenger, allegedly Sgt. Carter, is reported to have leaned out of the sport vehicle with a handgun, saying  “You want to see my baby Glock?”  He then fired a single shot.

Investigators later recovered a .40 caliber shell casing in the street, which allegedly came from a “baby Glock,” which is firearm carried by off-duty policeman.  Further verification of the event was obtained when investigators also recovered a slug they dug out of a metal wall at a nearby laundry supply business.  The prosecution alleges the shot was fired “in the direction of several bystanders.”  This will be the critical fact that will fuel the charge, the essential factoid that takes the charge beyond a mere technical violation and lights a fire under the jury.  True, no one was hurt, but someone could have been killed!  That will be the prosecutor’s argument.

Later Sgt. Carter admitted to being at the club that night but denied being involved in anything relating to a shot being fired.  Still later, Carter is reported to have told a fellow officer that “it was an accidental shooting.”

Both Carter and McKethan are on administrative leave while facing the charges, paid at all times by the faithful tax-payers of Oklahoma City.   Of course, they are presumed innocent of the charges until a jury finds them guilty beyond a reasonable doubt.   But many other people are charged with a crime and are immediately fired.  No one pays them to make their way through the legal system.  Any criminal defense lawyer would want that for his client.  No doubt this status of being on administrative leave with pay while awaiting disposition of the criminal charges comes from the police contract with the City of Oklahoma City.  The Fraternal Order of Police negotiates the police contract every few years, and the contract always contains provisions like this.