Breaking the Habit

The thing I enjoy most about my job is the people.  Even when I complain about them, I still enjoy them. 

You see, I get to work with lawyers, judges, doctors, accountants, medical examiners, cops, scientific experts, suburban housewives, derelict dads, thieves, murderers, rapists, neglectful mothers, child abusers, and con artists.

And that's just in one week.

Many of my cases involve a cooperating witness.  This is someone who is either part of the crime and agrees to testify against the other participants or someone who knows about the crime and agrees to testify in exchange for a deal on their case (think jail house informants).

They all come with their own baggage.  You can read here for a discussion on that.  It's just the cost of doing criminal business.  Criminals witness homicides at a far greater rate than suburban grocery store managers. 

I usually find the cooperators entertaining and intelligent.  It surprises me every time.  I get the feeling that if they were to direct their energies outside the criminal world, they would be a productive society member.

But then there are the other ones.  Like this female who was going to testify against her brother in two horrific assaults and attempted murders.  This girl, call her Jasmine, liked to steal.  Purses from a store, cash from a register where she worked, or credit cards from a community center where she was doing her court-ordered volunteer work.  She really didn't have qualms about the place as long as it had something of value.  She had been in jail for the four months while I was meeting with her.  It was at our last meeting, the one I told her that the defendant pleaded guilty and the case was over, that she told me she was pregnant.

She wanted to get out of jail with a time served sentence.  She was terrified of having the baby in jail.  She didn't want probation with a new baby.  The baby would be the impetus to turn her life around.  The judge obliged with a time served sentence.  Jasmine went on her way to turn her life around.  We were confident we would never cross paths again.  Well, she was confident.  I was hopeful, not confident.

Until I saw the wanted posters.  Apparently, Jasmine was on video stealing thousands of dollars from a few different stores in the last month and the police were asking help in finding her.  Apparently, I'll be seeing Jasmine sooner than we anticipated.  I already know her reasoning - it was for the baby.

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K2 - Synthetic Marijuana

We're seeing an increase in synthetic marijuana use, synthetic marijuana deaths, and mental illnesses related to the drug.  In one of my new cases, the defendant is going to claim he was insane at the time he murdered another man because he smoked so much of it.

I'm trying to do my research.  Don't know about it?

Check out how an insanity case works here.

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Dying Declarations

Hearsay is not admissible evidence at a trial.  Unless, of course, it is admissible evidence.  I've discussed a little bit about hearsay before in terms of the right to confront witnesses against you.  I wanted to discuss dying declarations in light of my last post about the murder of Maria Rudolph.

In that Illinois case, a key piece of evidence was a deathbed confession of the murderer's mother.  She told her daughter that she knew her son killed Maria and that she had lied to the police to cover for him back in 1957.

It's a great jumping off point to re-open an investigation.  But how exactly can this statement come into evidence at trial?

The problem with hearsay is the inability of a jury to judge the credibility of the person who said the statement.  The person who said it is not called at trial and thus not exposed to cross-examination.  Anyone can make something up.  I can say that my brother told me he broke the window with a bb gun when we were kids.  But should he really get in trouble for this because of my hearsay testimony?  (Note:  I broke the window and confessed to my parents a few years ago).

So the rule is that hearsay is inadmissible, unless there is an exception.  A dying declaration is one exception.  A dying declaration is when a person identifies their killer under the belief they are dying.  The belief is that a person is more likely to tell the truth under the psychological pressure of imminent death and the fact they are about to meet their maker.  There are certain criteria that must be met for that type of statement to be admissible:

Under the Federal Rules of Evidence:
1) The declarant must be unavailable to testify (due to his/her actual death most likely),
2) the prosecution must be for a homicide or in a civil case,
3) the declarant (person injured) must believe their death is imminent when they make the statement, and
4) the statement must be about the cause of the death (who did it) or its circumstances.

In New York State:
1) The declarant must be unavailable to testify because he died due to the action,
2) the prosecution must be for a homicide case,
3) the declarant must believe their death is imminent when they make the statement, and
4) the statement must be about the cause of death or its circumstances.

The main difference between New York rules and the federal rules is that in New York, the victim must actually die before the statement is admissible.  Under the federal rules, the victim must be unavailable, but does not have to die as a result of the injury inflicted.

Are you seeing the problem with the Maria Rudolph case?  The defendant's mother made a dying declaration about her own lies and knowledge that her son committed a murder.  The statement was not about her own death (she did not die by homicide).  It is not a dying declaration under the law.  The question becomes how did this statement make it into evidence at a trial?  The first part, that her son did it seems to be speculation.  The second part that she lied to cover for him is definitely hearsay.

One of the most important jobs a lawyer has is to figure out how to get crucial evidence into the trial.  Good trial lawyers usually have two or three ways to get the evidence in.  But this one has escaped me. I don't see any way this testimony should have made its way into the trial.  It might be considered an admission, meaning where one of the parties in litigation makes a statement to their detriment.  But it doesn't seem like it because mom wasn't relating what she was told by her son, only her involvement.

Hearsay also acts like the childhood game telephone.  This is where a group of kids sit in a circle.  One child whispers a statement to another child and that statement is repeated to each successive child.  Once it gets back to the original child, the statement has always morphed into something else.  It's the same danger with hearsay upon hearsay.  There is a legitimate fear that the more links in the hearsay chain, the greater the chance to distort the original statement. 

Obviously, I only possess the media reports about the case so there is most likely details I am not privy to.  But if these details are the true facts, I don't see how mom's deathbed statement came into evidence.

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The Coldest of Cases - Maria Rudolph

Just about 55 years passed since seven year old Maria Rudolph vanished from her Illinois street while playing with a friend.  And now, former police officer, 72 year old Jack McCullough A/K/A Jack Tessier stands convicted of it.

In all of the cold cases I've seen or been a part of, there is a pattern.  First the police investigate the case and develop a list of suspects.  No one can identify the killer or there's simply not enough to charge the person, but the police still have their suspicions.  The police collect physical evidence from the crime scene and bring it to a lab, where it sits.  It waits for the advent of DNA technology and then for DNA technology to improve.  Then, it waits for a government grant to fund the testing of all those old cold case materials.  Then, it waits for an interested cop or a determined victim's family to push the re-opening of the investigation.

The items of evidence are tested and a DNA sample is found on sheets, underwear, or a murder weapon.  The sample is sent to a statewide and national databank of convicted offender's DNA.  A match is uncovered and now the police have their suspect.  Sometimes it confirms their earlier suspicions and sometimes it turns the investigation in a completely new direction.

The police then interview the new suspect.  The interview runs in three stages:

1) The police ask the defendant if he was ever at the address where his DNA was found or if he knew the victim.  The suspect denies being there or knowing the victim.  The police show a picture of the item with his DNA on it and the suspect denies any knowledge of it. 

2) The police pull out the DNA report and show it to the suspect.  The suspect then says he forgot.  He was at the house before.  Or that he knew the victim.  He just forgot.  But no, he never killed her and if they had sex it was consensual.

3) The police begin going through the incriminating DNA evidence piece by piece and the suspect's story changes each time he learns about a new piece of evidence.  It changes to make everything appear innocent.

Then, he's arrested and charged with murder.  As a prosecutor, I use his DNA, the crime scene photos, and his ever-changing statements to prove my case.  That's how they most typically work.

Which is what surprised me about the Maria Rudolph case.  There was no DNA evidence.  It was based on an identification from 50 years ago and two people calling McCullough's alibi into question.  One of them was his mother, who died eight years ago.

Here is the reported proof:  Maria Rudolph and her friend were approached by a man her friend identified as "Johnny".  The friend left the two alone to grab a doll and when she came back Maria was missing.  The friend identified McCullough as the "Johnny" that approached them.  She identified him over 50 years later.  At the time, McCullough, going by Jack Tessier then, was a suspect.  But his mother provided an alibi.  Mom on her deathbed in 1994 claimed that she knew McCullough killed the girl.  Lastly, McCulllough's girlfriend at the time found an unused train ticket in his pants.  It was the train he supposedly was on that gave him his alibi.

All compelling and incriminating evidence.  But enough to sustain a murder conviction?  Especially since his mother was no longer around to tell us what she really knew?  It was enough for this Illinois judge who found then 17-year-old McCullough guilty of murdering and kidnapping Maria Rudolph whose body was missing for five months in 1955.  McCullough waived his right to a jury trial and allowed a judge to decide the case.  I wonder if the result would have been different with a jury.
For more on the case, check here, here, and here.

Cold cases are extremely difficult to try.  Witnesses memories fade.  Witnesses disappear or have died.  Evidence is lost over time.  Police procedure switches.  Any cold case conviction is the result of exceptional work by the police and prosecutors.  There is no better feeling than telling a grieving family, who has waited decades for answers, that the killer has been caught.  Well, maybe the better feeling is when the killer is convicted.

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The Moments Before

VIDEO: Drunk driver on camera at bar

Watch the guy in the number 12 jersey.  Pay attention also to the bartender who continues to serve him after he stumbles to the ground.

This 24 year old struck and killed a 14 year old bicyclist after leaving this bar with a .24 BAC.  No one stopped him from getting in his car or stopped serving him.

Who do you think is to blame?  The bar?  The bartender?  His friends?  Or just the driver himself?

Nights like that lead to days like this:

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A College Murder

Domestic Violence is one of the most difficult crimes to prosecute.  I have successfully navigated through the prosecution waters without a stint in a domestic violence bureau.  To be honest, it's something I've avoided.  I've only handled one domestic violence case, a murder, where the husband claimed he stabbed his wife because she was going to leave him.  It was an extreme emotional disturbance defense, but the case never went to trial.  The husband killed himself in jail before the trial began.

But many of my cases are DV related.  Many of my witnesses have open DV cases.  Violations of orders of protection abound.  The issue with DV cases from a prosecution standpoint is that most of the victims want to drop the charges almost immediately.  Every DV prosecutor I know reads the paper each day hoping that one of their victims is not the latest name on the homicide list.

In Virginia last month, an especially tragic DV case went to trial.  24 year old George W. Huguely, V, was accused of killing his former girlfriend, Yeardley Love.  Both were University of Virginia lacrosse players.  Alcohol was involved, as was a history of DV related behavior for Huguely.

The murder occurred in the late evening and early morning of May 2-3, 2010.  Ms. Love died of blunt force trauma to the head, as a result of Huguely striking her head against the wall during an argument.  Huguely claimed in an interrogation that they did have an argument, but that Ms. Love's head struck the wall accidentally.  The jury disregarded this claim, in part because the force needed to cause the injuries would be much more than an accidental hit to the wall.

Huguely was drinking all day long and went to her room to confront Love.  A damning piece of evidence was an email Huguely sent her a few days before the murder that read, "I should have killed you."  The email was in response to Love's alleged infidelity.

The case brought to the surface many issues that simmer below the radar on college campuses - alcohol abuse, violence, domestic violence reporting, and restraining orders.  It all culminated in the tragic and horrific death of a beautiful young woman and the imprisonment of a young man.

DV victims deserve every bit of help that we can give them.  Women, and men, should not have to suffer through abusive relationships and feel they are imprisoned by them.  They need to see the road out and given encouragement to take it.

The problem in some cases is victims and defendants can learn to abuse the system.  Once the cycle starts, and the police report is taken, it is easy to stay in it.

Jamison Koehler just posted a link demonstrating this.  A woman calls the police during an argument with her husband.  She tells the 911 operator, "I need to have this man out of my house.  I need to have him arrested."  I don't know more about that case to discuss about it, but it shows the problem.  A simple phone call to the police can create a chain of events that leads to a husband's arrest for DV assault and him taken to jail for a period of time.  Then, the wife can show up to court and ask to drop the case.  The next time he gets drunk, is out too late with his friends, or cheats on her she'll call the police and do it again.  The threat of a DV arrest is then used as a sword, not a shield.

I'm not saying this happens in every DV case.  In fact, I'd argue this is the exception, not the rule.  But it is the same problem as wrongful convictions.  Each wrongful conviction or arrest based on false charges undermines the credibility of the entire system.  It leads to jaded prosecutors, judges, advocates, and defense attorneys.  Where the first thought should be 'how do we help this women', it can become 'is she lying?'

It's a constant struggle in the minds of a DV prosecutor.  It's a constant threat in the subconscious of every prosecutor.  I have never had a witness harmed in a case, but the thought is always there.  When a witness wants to drop the charges, we always have to ask why.  Was it a threat, bribe, a lie from the beginning, or does the person just not want to deal with it?  Every wrongful conviction and invalid arrest negatively impacts valid arrests and credible convictions.  It creates higher hurdles for the prosecution and police throughout the investigation and trial.

As for Huguely, he was convicted of second degree murder and sentenced to 23 years in prison.  The jury had recommended 26, but the judge, who has the final say, imposed 23.  In New York, the jury is told not to ever think about sentencing in a case.  They cannot and do not provide a recommendation.  It shocked me when I researched this case to discover Virginia jurors do.  I like New York's system better.  Let the juries decide guilt or innocence only and let the judge decide sentencing.  

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