Wednesday, April 16, 2014

Let Mike Anderson go

I always feel so much lighter on April 15. Not because of taxes (though I did put those off to the last possible moment this year), but because of that other dreaded project I do every year. It's done now, so forgive me as I look back through interesting news stories a week (or two).

I actually first became aware of this story at least a month or two ago. It's important enough to mention because this case challenges us to stop and think about what we hope to achieve when we prosecute offenders.What is the real goal of a prison sentence? Who benefits when particular offenders are incarcerated? For crimes that involve victims, what do we hope to provide to those victims? And isn't it entirely possible that there are some instances when a prison sentence will actually do more harm than good?

Mike Anderson committed armed robbery in 1999. He was convicted soon thereafter and sentenced to 13 years in prison. His appeals denied by 2002. He had apparently been out on bond throughout the entire process (not unheard of). When his appeal was denied, he should have either been picked up. Some things fall through the cracks, though. Mike Anderson fell through the Missouri Department of Corrections' cracks. They didn't realize they didn't already have him, so they never went looking for him.

In the meantime, Anderson just kept going on with life. Got married, had a kid, started a business, and generally lived an upstanding life. There is no indication of him having any run-ins with the police, any brushes with the law in any way. He by all accounts seems to have done exactly what society should most want from him: he has turned his life around and made a positive contribution to society.

Now, if the DOC hadn't dropped the ball, he would be nearly done with his sentence by now, most likely just released and so just starting the rebuilding process. He wouldn't have started a business, become a football coach, a father. He'd be looking at life now from a very different perspective, and one with a cynical view of our prison culture might wonder if there was really any likelihood of him becoming such a productive citizen. We haven't made it all that easy for inmates with long sentences (13 years is pretty long for these purposes) to take classes, learn skills, and generally be ready to make positive life changes upon release. So maybe the odds of him achieving the things he has if he'd served a decade-long prison term first aren't so great.

In short, not going to prison for all this time probably rehabilitated Anderson far more than any prison term could have done. And yet, the Missouri DOC finally noticed the problem and corrected it. So now, he is about 9 months into this long prison term. His family must survive without him. Who knows what will become of his business. At this stage, people will suffer actual harm from now imposing this sentence, notably his kid, his wife, his employees, the kids he coaches.

Naturally, Anderson's attorneys have filed a motion (though not being versed in Missouri law, I have no idea how likely it is to be successful, or what legal grounds they have, if any). They say even the man who was robbed doesn't see the point of the prison sentence being served at this late date. But the prosecutor seems reluctant to make an exception.

The question here really is, what are we achieving by putting Mike Anderson in prison for 13 years now? Are we just getting some kind of retribution/justice on behalf of the victim? Because the victim doesn't seem to think it's necessary. As a crime victim, this seems like what my reaction would be. If 10 years from now, I learned that the person who broke into my home had spent the last decade building a respectable, law-abiding life, I would take much more satisfaction from that than any prison term. I don't want to "get even" with my burglar in some way; I just want him/her to see the error, to recognize what a deep and personal violation it was, to not do it again.

Are we achieving anything by punishing him just to punish? I guess I don't understand the point of punishment that doesn't have a goal, whether it be to keep society safe (unnecessary based on the life he's led since 1999) or to help that individual learn better ways to live (already done) or just get him to learn that staying out of trouble is better than being in prison (again, already done). 

As for the prosecution's concerns about making exceptions, well, some cases really are exceptional. That's why we have exceptions. Not every case is black and white. Some times weird, crazy, exceptional things happen and we should have the flexibility to deal with them.

Think about all the things Mike Anderson could have done with all this extra time, waiting for his bond to be revoked. (Understand, he did absolutely nothing wrong. He was on release from the court; he was under no obligation to do anything about ending that release.) He could have fled the state, making it difficult for anyone to find him when they were ready to pick him up to start his sentence. He could have committed new crimes, worked out his nerves over the unresolved situation by turning to drugs or alcohol. He could have decided not to seek gainful employment, not to engage in his community. He could have continued on the path he'd been before, making terrible choices that hurt people.

By now putting him in prison to serve 13 years this long after the fact, the state of Missouri is the one making a bad choice. Other young people who commit armed robbery aren't going to get it into their heads that they can "get away with it" if we let Anderson go. The victim isn't going to be put in any danger. There's no bad message sent if Missouri looks at the way Anderson has turned his life around and says, "the prison sentence we ordered over a decade ago isn't what we'd order for the man before us now." This is a fluke situation that should be recognized as such. No one benefits from making him serve this sentence now, but lots of people will be hurt.




Thursday, April 10, 2014

In which I admit how very, very much I suck at all things

My entire life, I have always believed I am a fraud. No, I've always known it. I'm not smart. Not competent. Not likeable. Not worthy of being around. I've just been faking it (not very well, at that), all the while waiting for people to catch on. It wouldn't even take that many people, just one well-placed person who could make the house of cards that is my sham of a life come falling down.

I didn't deserve to be admitted to the college I got into. I definitely was not worthy of a decent law school. I should never have been allowed to pass the bar. What fools gave me loans with which to buy cars or a house? Why did any idiot ever trust me with a paying job? (Or a non-paying job, for that matter?) And it's never just that I should get scolded or written up in some toothless way. I always believe I should be expelled, fired, cast out of my profession, nay cast out of civilized society entirely.

I remember the day I was sure I would be fired from my summer job as a camp counselor at a YMCA day camp. Didn't sleep a wink all night, I was so worried about my horrible failure, a failure that had most likely resulted in the death of a child. Of course, I'd really just made a perfectly reasonable decision that no one thought about twice, that never even registered as an incident to anyone else. Because, duh, it wasn't. (And, no, no child was ever in any danger.)

Then there was the time my ATM card wouldn't work, first at one machine, then at the next (both from the same bank...). The error message was odd, unlike anything I'd seen before. A normal person probably would assume there was something wrong with the bank's cash machines. But not me! Nope, I was convinced my accounts had been frozen, that I was on the verge of losing everything, for some massive failure on my part I couldn't even identify. Fortunately, that insanity didn't last long as I realized there was still a branch open, so I went there where I a) got the cash I needed from my (duh) not-frozen account and b) learned that the bank was switching over to new software for their ATMs and the switch wasn't going smoothly.

It must be nice to go through life unplagued with this occasionally debilitating level of self-doubt. It'd probably be a good thing if I could figure out how to make a mistake without going straight to "I deserve to be strung up by my thumbs and upheld as an object of scorn, contempt, and derision for all eternity." Maybe someday, I'll get there. But it doesn't seem like today will be that day. Because I'm a big, big failure and a fraud and I deserve to be cast out of civilized society, probably strung up by my thumbs, and undoubtedly upheld as an object of scorn, contempt, and derision for all eternity.

It's really no wonder I have ulcers.

Saturday, March 29, 2014

PSA

The movie "Double Jeopardy" is the dumbest concept ever.

Ashley Judd spends years in prison, having been convicted of murdering her husband. While in prison, she comes to realize that her rat bastard, cheating husband actually faked his death and framed her for murder. So she vows to go after him when she is released and kill him for real this time. After all, she's already been convicted of murder and served a sentence. And we all know the Constitution guarantees no defendant can be convicted and sentenced for the same crime twice.

Every time I channel surf and see this movie on, my criminal-law-lovin' soul dies a little. The whole idea is just so ridiculous. Make your movie about a revenge-seeking, wronged wife all you want. Have her vow to get that rat of an ex and take her son back. But don't tell the audience that she knows she can't be tried for the same crime twice, so she knows she can go after him and kill him now. And don't call it Double Jeopardy.

You all do know that the actual Constitutional guarantee against double jeopardy doesn't work that way, right? If you are wrongfully convicted for killing someone who isn't actually dead, that doesn't give you license to now go kill that person. Commit a premeditated, intentional killing and you will always, always be chargeable, regardless of your criminal history (by which I mean, regardless of how many times that victim has faked his death and pinned it on you).

Deep down, I think the movie knows Ashley Judd's character wasn't, in fact, free to murder her hubby. Hence, [spoiler alert] in the end, his demise is a clear-cut case of justifiable homicide as hubby is about to kill the plucky parole officer (Tommy Lee Jones) who started out trying to catch Judd (who is in clear violation of her parole by traveling the country and having a gun, all with murder on her mind) but has come to be on her side as following her leads him to the truth. So they never really got to test that crazy interpretation of double jeopardy as there's not gonna be a murder charge.

The bottom line is this: there is no such thing as a free pass to commit intentional, premeditated murder. And the entertainment industry regularly bastardizes the law in a way that makes me nuts.*

Duh.



*don't even get me started on how that dumb law show on Lifetime I hate myself for watching (even on a lazy Saturday when it's too cold to wander outside) totally bastardized one of the most known-to-all-criminal-lawyers cases ever.

Thursday, March 27, 2014

No amount of money can fix the life of a wrongfully convicted person. But we should pay them all, anyway.

One of the worst aspects of how slowly the wheels of the criminal justice system grind is just how long it takes a wrongfully convicted person to be released. Often, even after the eventually-winning motion has been filed or the critical piece of evidence has been unearthed, it is not even just months but years before release occurs. Most of those successful exoneration motions are not on the original direct appeal, either, so the exoneree has spent a decade, and often much more, in prison before being released.

When they are released, exonerees are sent out into a new world, usually a world quite different from the one they left. They have no assets, no work experience, not much education to tout. In short, they are in desperate need of finding a means of support and yet not the most appealing job candidates, what with criminal records and long incarcerations in their past. Spending long stretches of time in prison is bad for one's health, too, so those who are released will likely have health needs, even if it's just dental work and eye care. (Incarceration can lead to serious increases in near-sightedness. Eyes will lose the ability to focus on distant points if they can't see past a wall 10 feet in front of them.) There's also the psychological damage of incarceration itself, especially for those exonerees who spent significant time in solitary (as a lot of death row inmates do).

We all cheer the stories of each individual exoneree as he or she is released after 10, 20, or 30 years of struggling to prove innocence. I wish more attention would be focused on what their lives look like a year after exoneration. How they can't get landlords to rent them apartments or employers to give them jobs. It might be hard not to feel a little bitter that you can't earn a paycheck (not that you need it to pay rent if you can't find an apartment) while the prosecutor who ruined your life got a big promotion or a judgeship because of your case.

We need to do a better job of helping exonerees after release. As a starting point, it ought to be required that every state (or the federal government, for federal defendants) must provide certain basic benefits. Health care, including eye, dental, and mental health care. Job training or education. Housing (which might require the state providing some kind of incentives for landlords). And then there's just money. Money would take the pressure off the job search, make it not matter much if landlords are leery of renting to ex-cons, regardless of legal "technicalities" like innocence. If exonerees have a nice pile of cash, they can buy homes and get away from nervous landlords. They don't have to convince timid employers to take chances. They don't have to risk homelessness and hopelessness. They don't have to mooch off family members they haven't been around consistently for 20 years.

According to this report by CBS, 29 states (as well as the federal government and DC) have statutes that provide for compensation for the wrongfully convicted. Which means that 21 states do not. In those 21 states, exonerees have to jump through the hoops of filing lawsuits or trying to get special legislation passed through their state's legislature. Filing a lawsuit can be difficult, figuring out who you can name as a defendant who doesn't have immunity. But that's still got to be easier than getting any legislature to pass a bill just for one person. The easiest solution, though, would be for those 21 states to get off their duffs and pass statutes that will cover all exonerees.

As a final matter, any jurisdiction that considers prohibiting compensation to a wrongfully convicted defendant who "contributed" to the wrongful conviction should shove that idea where the sun don't shine. Could that include a scared defendant who is being convinced he will be executed if he goes to a jury trial opting to take a plea deal to a crime he didn't commit? Keep in mind that one of the reasons a lot of prosecutors insist states should keep the death penalty as an option is to coerce encourage defendants to plead out. Because, of course, the prosecutors already know they have the right guy, so they can run roughshod over him to get him to waive his constitutional right to a jury trial. So, sure, it's fair to refuse to compensate a wrongfully convicted defendant who allows himself to be run over like that.

I'm confident that "contribution" exception would include defendants who falsely confess. That would sure save states a lot of money as somewhere between 25 and 30% of wrongful convictions involve false confessions. The interrogation techniques used in most police interview rooms throughout this country are specifically designed to get confessions, after all. Not the truth. Confessions. Because, of course, by the time the cops begin these interrogations, they already know they have the right guy, so all that matters is getting him to say exactly what the cops want to hear. So, sure, it's fair to refuse to compensate a wrongfully convicted defendant who allows himself to be bullied into lying like that.

The system is heavily weighted against suspects and defendants from the beginning. Police are allowed to lie to get defendants to confess, but if a broken suspect gives in and responds with a lie, well that's the suspect's own damn fault. Prosecutors can threaten death, but if a scared defendant gives in to save his life, well then he had that time in prison coming. That's a heartless, cynical attitude that should be removed from the calculus of every compensation statute. And, really, it shouldn't matter one bit why exactly a particular defendant was the victim of a wrongful conviction. 

No matter what specific factors contributed to any particular wrongful conviction, we the people should all contribute to helping right that wrong. After all, every wrongful conviction involves the power of the state being misused to incarcerate an innocent person. We can't give any exoneree those stolen years back, but we ought to do all we can to make sure every exoneree has a shot at making a life with the years he has left. It's criminal that there is any state in this country where that isn't a given.

Tuesday, March 18, 2014

If the shoe fits, Sean Hannity...

Yes, CNN has rather lost its mind over this missing plane. But so has FOX. For some reason, I can't make myself stop tuning in because it's all become so unhinged and they're all so sure we can speculate and expound and theorize when we basically know nothing.

No one, though, has lost his mind over this all more than Sean Hannity. I mean, this guy has gone full-on Glenn Beck nutso over this. He is convinced the lead pilot is behind it all. Why? Because, and I am not making this up, because that man has been seen wearing a t-shirt emblazoned with the words "Democracy is Dead." And because that man supports the opposition leader. Based on these facts, and the fact that the pilot allegedly attended at least part of this leader's totally trumped-up trial that only happened so the ruling party could incarcerate this man, Sean Hannity has declared him a "fanatic" utterly unfit to fly a plane at all. He actually said he would feel very uncomfortable being a passenger on a plane with this guy at the helm.

Think about that for a minute. Sean Hannity equates supporting the opposition party with fanaticism. Fanaticism to such a dangerous degree that such a person should not be entrusted in a position of responsibility.

So, hey, Mr. Hannity. Remember that time you wrote, "Obama's rhetorical overtures to democracy, it turned out, were just a decoy to conceal his unwavering determination to govern from the far left.”
Sean Hannity, Conservative Victory: Defeating Obama's Radical Agenda

Some might see that as being sorta maybe a little bit akin to a guy who supports the opposition party in a country ruled by an autocratic regime wearing a "Democracy is Dead" t-shirt. Maybe.

I'm also pretty sure that's hardly the only time you've suggested, implied, or even flat-out said that Obama is destroying (or has already destroyed) democracy. You've kind of made a living since 2008 railing against the current administration. I'm also guessing you've spent an awful lot of time watching hearings related to your pet topics, and you would closely follow a trial if you thought the Obama administration was trying some big GOP or Tea Party leader in a clear attempt to silence a political foe.

But as you've made clear this week, you think saying such things and engaging in such activity makes you a fanatic unfit for jobs that involve serious responsibility toward other people. So maybe you shouldn't be entrusted with the responsibility of imparting "news" to the public over television and radio. If the shoe fits...

Monday, March 17, 2014

The Inexplicable Case of Russ Faria

I shouldn't watch Dateline and 48 Hours. The cases featured on those shows all too often feature way too little actual evidence and way too many claims the defendant "just didn't act right." The prosecutors often make outrageous closing arguments that would be considered misconduct in my jurisdiction. Either a detective or prosecutor almost always describes the defendant as pure evil, cold, the most heinous, awful, odious person ever. (They can't all be the most evil killer ever.) More than one episode has involved a trial over a death that probably wasn't even a crime. And yet the defendants are almost always convicted, which just makes me mad. So I really shouldn't watch. But I do.

Friday's episode of Dateline may well have taken the cake in terms of head-spinning, blood-pressure-rising insanity. In Lincoln County, Missouri, Russ Faria was convicted of the murder of his wife even though he had an alibi established by two gas station security cameras, cell phone towers, an Arby's receipt, and four witnesses who were with him all evening.

It all began on a regular old Tuesday evening. Russ went to hang out with his gaming buddies, as he often did on Tuesday nights. He stopped to get gas. Then later, he stopped at a second gas station to buy drinks. Hung out with his friends for a few hours, watching movies instead of playing their usual games. Left around 9, stopped at Arby's, then arrived home around 9:40 pm. That's when he made the frantic 911 call to report that his wife appeared to be dead.

Betsy had been stabbed multiple times, with the final wound being to her neck, where the knife remained. In his panic, Russ told the 911 operator that he thought his wife had killed herself. Naturally, police immediately looked to the husband. The nature and number of her stab wounds suggested the kind of overkill that usually indicates a crime of passion by someone who loved the victim. Then with that odd comment about suicide, it was expected the police would look at Russ.

It didn't hurt that Betsy's closest friend, Pam Hupp (remember that name), was telling them all about the troubled Faria marriage. Including the "game" she says Betsy told her about, where Russ would hold a pillow over Betsy's head and tell her that's what it would feel like when she died. Other friends talked about Russ being immature, a little cringe-worthy at times, but none corroborated Pam's pillow story.

It definitely made sense to look at Russ. They also had some of Betsy's blood on a light switch and on Russ' slippers in the bedroom. Made them sure he must have done it. No other killer, apparently, was capable of touching that light switch or those slippers.

He gave a pretty detailed accounting of his night, so lots for the police to check out. They checked first one gas station and then the next. Sure enough, he was seen on security cameras at both stations, in the (blood-free) clothes he was wearing when emergency responders arrived at the scene of the crime. The game night friends all confirmed Russ was there from around 6 until 9. An Arby's receipt confirmed that purchase, at an Arby's about 30 minutes away from his house. Thus, making the timing of his 911 call entirely appropriate. And throughout it all, Russ' cell phone was pinging off towers right by that friend's house, not by his own.

Now, cell phone tower pings aren't conclusive evidence of a person's phone's location. Cell phones generally connect to the closest available tower unless that one is busy, then they go to the next closest, and the next closest, and etc. Depending on how busy the cell phone towers right by my house are, my text or call can go through a tower farther away from my house without me leaving home. But if for several hours your phone is consistently pinging off that tower right by your friend's house, it's pretty likely that your phone really was close to that tower for that chunk of time.

With an alibi so thoroughly backed up with security cameras, receipts, cell phone towers, and 4 honest, reliable citizens, one might expect the police to think, "Dang, this isn't our guy." Or at least, "If he did it, he hired somebody."

But, no. They doggedly stuck with Russ Faria being their guy. They still said his initial comment about suicide was suspicious. (Did I mention that Betsy had terminal cancer?) They still insisted his hysterical crying on the 911 call and at the station that night was suspicious. (Of course! The "he didn't act right" theory is alive and well.) They still insisted this was a rage-filled, crime of passion that could only have been carried out by someone who loved her and flew into a blind rage. They insisted his alibi was "too" good. Two gas stations? Someone really wanted to be seen! (Or someone needed to buy gas right away and then wanted a cold drink after a 30 minute drive? Or someone has a gas rewards card at one station, but that one doesn't carry his favorite drink? Really, for the purposes of putting yourself 30 minutes away from your house, one gas station security camera is plenty.)

So they went with a completely cockamamie story that defies all logic.

They decided that Russ Faria got gas at the one gas station, bought drinks at the second one, drove to his friend's house, left his cell phone there, got these 4 decent people to lie for him, drove home, stripped naked, had sex with his wife (she had some of her husband's sperm inside her, obviously suspicious), then killed her. Then he showered and re-dressed, somehow getting blood only on his slippers. While one of the friends brought his phone back, carefully stopping at the Arby's drive-thru on the way.

So many problems with this theory, of course. The semen in the victim isn't evidence of anything except that the marriage was, um, functional. It was a relatively small sample, consistent with Russ' story that they'd last had sex on Sunday night. (Semen can survive for 72 hours.) I've never seen any reference to the victim being unclothed in any way, which kinda hurts the sex claim. The sex claim by the prosecution was just silly on every level and totally gratuitous. Gratuitous claims are usually the hallmark of a weak case.

Then there's the spurious (and despicable) accusations against Russ' friends. For this story to be true, all four of them had to be part of a murder conspiracy. They would all four have made themselves at least accessories after the fact. The friend who is supposed to have brought the phone to Russ' house and made the Arby's stop is a downright murderer by legal standards. And a fool, because I wouldn't take the risk of going through a drive-thru. At the very least, you're setting up a witness who might remember the guy who picked up two sandwiches at 9 pm. At worst, though, there could be security cameras on that drive-thru. Don't a lot of drive-thrus have cameras? So the people inside the restaurant can see the cars? Wouldn't one think it likely (or at least quite possible) that the feeds from that are recorded, as security camera footage usually is? So that's taking quite a risk that there won't now be evidence of your car or your face being connected to that Arby's receipt. Not to mention, how many people really have 4 friends who would all as a group stick together and lie to help a person get away with murder? Not one of those friends would crack and turn state's evidence against all the rest of them, out of fear that if he didn't, one of the others would? Let me assure you, it would be the rarest of rare 5 person murder conspiracies to have all 5 people stand firm and not one crack and take a deal.

Of course, it doesn't seem like any deals were necessary because none of those 4 people have ever been charged. Probably because deep down in places the prosecutors don't talk about at parties, they know perfectly well that their conspiracy story is utter bunk.

Oh, and then there's the thing that made the police suspect Russ the husband in the first place. The murder was a crime of passion, they said. It was so overdone, the kind of thing that only happens when someone flies into a blind rage against someone he loves. But this story they've concocted is as premeditated a murder plan as they come. So which is it? Crime of passion? Or complex, premeditated conspiracy? Really, if you were going to give yourself this great alibi, wouldn't you make a little effort to make the murder look like a burglary or something?

At this point, I hope you can all see that the state's case is nuts, logic-defying, and, btw, gravely insulting to 4 innocent, never charged persons who did nothing to deserve having their reputations sullied thusly.

And I haven't even gotten to the best part yet.

Remember Pam Hupp? (I did tell you to.) She's the friend of the victim who oh-so-helpfully told the police all about how awful the Faria marriage was and how Russ played the murder game, etc. and etc. and etc. Funny thing about Pam Hupp. Guess who was the beneficiary of Betsy Faria's life insurance policy? Her husband? Nope. Her minor children? Nah. Mother? Sister? Don't be silly. The beneficiary of Betsy Faria's life insurance policy was: Pam Hupp! To the tune of $150,000.

Apparently, Pam got Betsy to switch over her life insurance just days before she died. Pam swears it was for the kids, because Betsy didn't trust Russ to be responsible with the money. But funny thing, she apparently shouldn't have trusted Pam, either. Just prior to trial, the detective who was going over her trial testimony with Pam told her she really ought to set up a trust for Betsy's kids, as that would look better to the jury. Give credence to Pam's claims that the insurance transfer was legit, meant to protect Betsy's children (who so far hadn't seen a dime). Pam swore she would. But as of the Dateline episode, the family members who now have the children still hadn't heard word one about a trust.

So it would seem Pam might be someone to look at, just based on motive alone. But there's something else you might want to know. Guess who was the last person to see Betsy Faria alive? I'll save you the trouble: it was Pam Hupp. Pam drove Betsy home that evening, well after Russ was at game night. Pam had some trouble remembering whether she came inside or not, whether Betsy walked her to the door or not, etc. She made a call to Betsy that Betsy didn't answer. This call was ostensibly to let Betsy know Pam had gotten home safely. But it went through the cell tower right by Betsy's house... Raising the notion that the phone call was a fake because not calling would make it seem like she already knew Betsy was dead.

Now for the real kicker. The jury didn't get to hear anything about the insurance, meaning Pam's possible motive for killing Betsy. The district court ruled it inadmissible, citing this odd old rule that a defendant can't introduce circumstantial evidence of a third party's motive for committing the crime without having some evidence to tie the third party to the actual crime. Kinda makes it hard for a defendant to create reasonable doubt if the defendant can't point to all the other people who might have had a reason to commit the crime, no?

Missouri is actually not alone in having this prohibition against SODDI evidence. (SODDI = some other dude did it.) Mercifully, Kansas has largely abandoned the prohibition, though. But we already knew Kansas is way better than Missouri. I digress.

Regardless of whether the SODDI prohibition is valid, though, the district court blew it on this one, for two reasons. First, there is direct evidence to connect Pam Hupp to the crime: she was at the crime scene around the time of the murder. She dropped Betsy off sometime around 7, the first missed phone call was around 7:20, and emergency responders arrived after 9:40. They noted signs that Betsy had been dead for some time (as in 2-2 1/2 hours). So Pam was at the crime scene at the right time. I've got a lot of clients in prison who were told that was plenty to connect them to a murder. So even under the SODDI rule, the insurance evidence should have come in.

The thing that has always bugged me the most about this SODDI rule, though, is that circumstantial evidence is more than enough to prosecute someone. If a prosecutor charged Pam, that prosecutor would have no bar at all to introducing all that stuff about Pam.The prosecution can present whatever cockamamie theory they can come up with, then say because this is their theory, the defense can't present this other sensible information.

The insurance evidence should have come in for a separate reason, though. Cross-examination is supposed to be a wide-ranging opportunity to question the credibility of the witness against the defendant. Pam was a pretty key witness for the prosecution. She had a pretty strong bias in not wanting any insurance company sniffing around her big payout. It was definitely in her best interest that Betsy's murder be solved and be solved in a way that absolved her. This would be true even if she had nothing to do with Betsy's murder herself, so pointing this out to the jury isn't technically the same as trying to present her as a SODDI option. The defense should absolutely have been allowed to cross-examine her on this.

It's no secret what the defense thinks happened: Pam killed her and did all she could to make sure Russ took the fall so she'd get the cash. The defense thinks she picked up Russ' slippers and touched them to Betsy's blood, which would explain why nothing else in the closet with the slippers was bloodied. That would make at least as much sense, if not more, than Russ stripping naked, except for his slippers. Why wouldn't he have had the Arby's buying buddy take the bloody slippers?

So from what I've gleaned between watching the Dateline episode (even Keith Morrison doesn't seem to think this conviction is solid) and from reading news articles, this is the case against Russ Faria.

I find it horrifying to learn that the jurors all discounted the 4 alibi witnesses. It's not like these 4 people all had criminal records or told wildly different accounts of the evening or cracked on the stand. Nope, they all 4 just consistently said Russ was with them from around 6 to around 9. For this, they were disbelieved by a jury, by Betsy's mother, and by the prosecution. In fact, they were vilified by the prosecution, made a part of a big murder conspiracy in a closing argument long on imagination and very short on fact. On their behalf, I'm offended. As a defense attorney, I'm also offended by the closing argument, which I would have a lot of fun tearing apart under Kansas's prosecutorial misconduct rules.

I find it horrifying that both the investigators and the prosecutors would so doggedly stick to their first assumption that the husband did it rather than investigate other avenues once it became clear his evening was fully accounted for. I find it horrifying that a person can fully account for his evening and yet still be charged with and convicted of murder. I find it horrifying that police, prosecutors, victim's family members, and jurors would slander good people just trying to tell the truth without one shred of evidence.

I will find it horrifying if this travesty of a conviction isn't overturned on appeal.

Tuesday, March 11, 2014

Be free, Glenn Ford! (And, hey, bummer about those 30 years you spent on death row... Oops.)

By the time I am writing this, I hope and expect that Glenn Ford will be breathing free air, beholden to no one, and eating something far better than prison food. For 30 years, Ford, now 64, has been incarcerated in Louisiana, at Angola Prison, the most nightmarish prison in the country. In 1984, Ford was sentenced to death. Now in 2014, the prosecution and district court have finally acknowledged what they had been pretending they didn't know for decades: Ford had nothing to do with the murder for which he was sentenced to death.

The linked story is a pretty white-washed, fact-light, feel-good version of the story. The victim's nephew calls this a "positive reflection on the criminal justice system." The prosecution itself filed a motion to vacate Ford's conviction, so look how kindly and justice-focused those nice prosecutors are! And good on the judge who signed off on it. Yay, justice system! It works!

Now let's put that nonsense aside and be honest about what really happened here. Back in November, 1983, when Isadore Rozeman (a white man) was murdered, Glenn Ford was a black man who had been seen at the scene that day. That Ford was at Rozeman's shop because he did yard work for the man hardly mattered. Nor did it matter that Ford went to the police station on his own to see what questions he might be able to help police with or that he cooperated for months. Really, all that mattered was that he was there on the day of the murder and he was acquainted with the chief suspects. The chief suspect's girlfriend told police Ford was with her boyfriend and his brother. But Ford had the gun, she said.

Ford was given two lawyers who knew next to nothing about criminal defense work. He literally got the next two names on the bar list. (At least these days to get a criminal appointment, a lawyer has to request being on the criminal appointment list. In my state, anyway.) The state made up some crazy "expert" testimony (good thing, too, because the girlfriend apparently utterly fell apart on the stand, admitting her testimony was all a lie). The state's experts included a coroner who insisted the killer was left-handed. He must have used a Ouija board, because he didn't actually conduct the autopsy. There was some bad fingerprint claim and a bad gunshot residue claim. Stuff that a modern day defense attorney can see right through, but that maybe doesn't sound crazy to a couple of civil attorneys in 1984. These civil attorneys never thought to find their own expert because they didn't know they could do that.

There were all kinds of other problems, too. The state didn't quite turn over all the exculpatory information it should have, a sadly common theme in wrongful convictions. The state excused all the black prospective jurors from the jury panel, another common theme. Appellate courts rejected complaints about these problems for decades, often doing so even while acknowledging they were real problems. Yes, Mr. Ford, you've raised some troubling concerns about the reliability of the process by which you were convicted and sentenced to death. Now go back to Angola.

For 30 years, the state proceeded with a crap case relying on a completely unreliable witness and junk expert testimony. The state withheld exculpatory evidence. The state engaged in racial profiling at jury selection. The defense attorneys should have been preparing oil and gas paperwork or investigating slip and falls, not standing between a black man in the south and the executioner. And for 30 years, courts overlooked all of those flaws.

So let's be clear about what happened today. While Glenn Ford being released is a great thing, it is most definitely not a "positive reflection on the criminal justice system." For Glenn Ford, the system did not work. Not at all.

If the system had worked as it should, Glenn Ford would have had a jury not entirely composed of white people (who, let's be honest, in Louisiana in 1984 might not have been the fairest judges of a black man accused of murder). The key witness' testimony would have been thrown out entirely when she admitted lying. The state would have turned over all the exculpatory information in its possession. The court would have appointed experienced criminal attorneys to represent Ford. Those defenders would easily have found experts to refute the absurd "forensic" testimony relied on by the prosecution, quite possibly discrediting it so thoroughly before trial that the fake evidence couldn't even be heard by a jury.

If the system had worked as it should, Glenn Ford would never have been convicted of a murder he didn't commit, let alone being sentenced to death. At the very least, the appellate court that expressed serious concerns about the case against Ford would have reversed his convictions. Goodness knows they had sufficient reasons to. Or at the VERY least, the courts who heard the second round of appeals, all focusing on the woefully inept defense attorneys who didn't know they could hire experts or subpoena witnesses from out-of-state, would have acknowledged that the outcome could have been different if he'd had attorneys who knew what the heck they were doing.

For 30 years, the state blindly prosecuted and courts blindly affirmed this innocent man. Glenn Ford even had one execution date set. Fortunately, that was one occasion when a court did not blindly affirm as Ford was obviously not executed. But I would bet dollars to donuts the state opposed the defense motion to stay that death warrant, despite all the reasons everyone had to suspect the validity of Ford's conviction and sentence.  I would bet that the state argued for its right to kill this man, even as it fought to preserve a conviction despite its own racial bias in jury selection, reliance on junk evidence, and refusal to follow its most basic evidentiary obligations.

By this point in the appellate proceedings, Glenn Ford had no recourse left. Any motions his attorneys filed for him could have been rejected summarily as being time-barred. So I guess some people think Glenn Ford should now fall over thanking the nice prosecutors who filed the motion to vacate his conviction and sentence, because they didn't have to. Just think about that for a minute. For decades, the state has known this conviction was based on nonsense but did nothing but defend the conviction. And yet, if the state hadn't finally, mercifully radically altered its position and magnanimously agreed to file a motion on his behalf, Glenn Ford would have probably been executed. This is not what we should consider anywhere within the zone of a properly functioning system.

What happened to Glenn Ford is an absolute travesty that makes the criminal justice system look like a sham. Don't let anyone tell you otherwise. 
 
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