Orange County California DAs’ Office disqualified from seeking death penalty against Seal Beach murderer

June 1, 2015

Since the 1980s, the Orange County District Attorney’s Office (OCDA) in California and the Orange County Sheriff’s Department (OCSD) apparently have been routinely violating the constitutional rights of incarcerated defendants awaiting trial to remain silent (Fifth Amendment), to counsel (Sixth Amendment) and to due process of law (Fourteenth Amendment) by placing jailhouse informants in adjoining cells with instructions to elicit confessions from them in return for extra privileges, reduced sentences and cash payments. When they testified about the confessions, the jailhouse informants denied requesting or receiving any benefits in exchange for their testimony and the OCDA and OCSD concealed the existence of the agreements. The polite description of this arrangement is subornation of perjury.

Dahlia Lithwick reports for Slate,

Prosecutorial and police misconduct are often dismissed as just a few bad apples doing a few bad apple-ish things. But what happens when it’s entrenched and systemic and goes unchecked for years? That looks to be the case in Orange County, California, where the situation got so completely out of hand this spring that Superior Court Judge Thomas Goethals issued an order disqualifying the entire Orange County District Attorney’s Office (that’s all 250 prosecutors) from continuing to prosecute a major death penalty case.

The death penalty case is People v. Scott Dekraai, who is in custody awaiting a penalty phase hearing after pleading guilty last year to killing his ex-wife and seven others at a beauty parlor in Seal Beach in 2011. Dekraai’s attorney is Santa Ana assistant public defender Scott Sanders, who realized that a jailhouse informant who had produced damning evidence about Dekraai had done the same thing to another client he was representing. Sanders smelled a rat, so he commenced an investigation that resulted in the discovery of “60,000 pages of records indicating that the county sheriff’s office routinely used and coordinated with those informants to get around the constitutional prohibition on eliciting incriminating statements from defendants who had lawyered up and should not have been interrogated.”

Sanders also found out “that the Orange County Sheriff’s Department has maintained a massive, secret, 25-year-old computerized record-keeping system called TRED. These TRED documents were full of potentially exculpatory data, but the agency officials had systematically refused to turn any of them over, or even acknowledge their very existence, to defense counsel.”

Judge Goethals refused to dismiss Sanders’s motion to dismiss the death penalty but he granted the motion to disqualify the OCDA and its 250 prosecutors. Kamala Harris, the Attorney General for the State of California, is appealing his order.

The alleged misconduct, if true, is not only an egregious violation of three constitutional rights, it’s a 25-year practice of concealing what they were doing. The rules are clear. After a suspect/defendant is represented by counsel, the prosecution and the police are prohibited from contacting him without permission from the attorney. They are also prohibited from attempting to get around the rule by using inmates to obtain confessions from defendants represented by counsel. In that situation, the inmate becomes an agent of law enforcement acting under their direction and control. A violation of this rule is a violation of a defendant’s right to remain silent and his right to have counsel present during an interrogation. The remedy for violating this rule is exclusion of the confession.

This rule does not prohibit inmates from acting on their own, which often happens when an inmate seeks to lighten his load by obtaining a confession from the defendant. If successful, he will contact law enforcement or the prosecutor assigned to the case and play, ‘Let’s Make a Deal.’

Unfortunately, if he is unsuccessful, he may invent a confession containing inside information about the offense. There are ways to obtain that information, for example, by contacting a clerk or paralegal in the prosecutor’s office and misrepresenting himself to be a reporter or a lawyer calling about the case. The OCDA and the OCSD apparently decided to make it easy by streamlining the process and lying about it afterward. Rewards, including promises to reward informants in the future are considered exculpatory evidence that must be disclosed to defense counsel. Failure to do so is a violation of the Due Process Clause of the 14th Amendment.

Why did they do that? To get the conviction, of course.

Easy to do when you believe everyone is guilty and constitutional rights are mere impediments to convicting the guilty.

Orange County now has an enormous mess to clean up and God only knows how many innocent people have been wrongfully convicted and sentenced to prison behind this institutional misconduct. Perhaps they will find out an innocent person was executed.

I have said many times that criminal defense attorneys are liberty’s last champions. If they do their job, as Scott Sanders did in this case, they force everyone else to follow the rules. Unfortunately, it took 25 years for that to happen in Orange County.


Since his lawyer admitted Tsarnaev’s guilt, why didn’t he plead guilty?

March 5, 2015

Since his lawyer, Judy Clarke, admitted Dzhokhar Tsarnaev’s guilt during her opening statement yesterday in the Boston Marathon bombing trial, why didn’t he plead guilty?

Many people have been asking this question in comments to news stories and blogs. The answer is the defense offered to plead guilty, if the prosecution would agree to drop the death penalty. The prosecution refused, so the defense decided to use the guilt/innocence phase of the trial to introduce evidence that they believe mitigates or reduces his culpability for the bombings relative to his older brother Tamerlan, whom the defense claims was the principal instigator or moving force who came up with idea and put it into effect.

Mitigation is not a defense to the crimes charged. Mitigation is any evidence about the defendant and the crime he committed, including the exercise of mercy, that calls for a sentence of less than death. As a matter of law, for example, a person who conspires with another to commit a crime, is just as guilty as the person who actually commits the crime, even if he is not present when the crime is committed. Even if he is present, that does not mean that he deserves or will receive the same sentence.

There is no crime, no matter how offensive, heinous or depraved that automatically merits the death penalty. Instead, jurors have to weigh the evidence admitted in aggravation (i.e., evidence about the crime and the defendant’s prior criminal record of convictions) against the evidence admitted in mitigation and decide whether the evidence in aggravation so outweighs the evidence in mitigation that a sentence of death is merited.

Evidence about the crime committed can also qualify as evidence in mitigation. For example, in a multiple defendant case such as the Boston Marathon bombing case, a defendant’s minor or minimal role in comparison to a defendant who plays a major or supervisory role is definitely a mitigating factor. The defense wants to use the guilt/innocence phase of the trial to establish that Tamerlan Tsarnaev was the instigator, the committed jihadi who was the planner and the energetic force behind the scheme to detonate two IDEs near the finish line of the Boston Marathon. They want to elicit evidence from prosecution witnesses, including law enforcement and his former friends testifying under oath that Dzhokhar Tsarnaev was a young, immature and rather typical American college kid who never would have involved himself in the crazy scheme but for his older brother who seduced him with tales of revolution, retribution and immortality in the service of God.

I have referred to this strategy as a ‘slow motion guilty plea.’ Dzhokhar has a Sixth Amendment right to go to trial, even if he is guilty. Guilty or innocent, every defendant in a criminal case has the right to force the government to prove its case beyond a reasonable doubt. What Judy Clarke said in opening statement is not evidence. The government still has the burden of proof. She believes that eliciting mitigating evidence by cross examination during the trial from witnesses testifying under oath will have greater impact than presenting the evidence in a penalty phase after the jury has decided the case. I agree because I have done this myself. In other words, timing matters.

I would never advise a client to plead guilty to a death penalty offense, unless the prosecution agreed to drop the death penalty. I believe it would be malpractice to do that.

Judy Clarke plans to use the trial to save his life.


Dzhokhar Tsarnaev’s Developing Dilemma

January 22, 2015

A fascinating issue is emerging during jury selection in the Dzhokhar Tsarnaev trial.* The vast majority of the prospective jurors who have been questioned believe he is guilty. A few have expressed doubt regarding his role and responsibility, but not about his participation in the bombing. Under ordinary circumstances that would be terrible news for the defense and good news for the government.

Nevertheless, the government has a problem.

Very few of the prospective jurors believe in the death penalty.

That’s good news for the defense and bad news for the government because only the defendant can move for a change of venue. He is not likely to do that because opposition to the death penalty is highest in the Boston area.

The Sixth Amendment provides in pertinent part,

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . .

Since Tsarnaev has a right to be tried in the Eastern District of Massachusetts, the government lacks standing to move for a change of venue and the Court has no authority to order it.

Quite the dilemma. Boston is the last place on the planet where the defense would like to try the guilt/innocence phase of this case, but Boston probably is the first place where they would want to conduct the penalty phase.

I’ll bet they will stay in Boston and not renew their motion for a change of venue.

Crane-Station adds:

Some of the thoughtful and interesting answers given summarized in this article:

Here’s How Possible Boston Bombing Jurors Feel About The Death Penalty

Juror 9:
Asked twice if he could impose the death penalty, he said, “I’m committed against it.”

Juror 10:
“There is no way in modern America today that I’m going to vote for the death penalty. I will not.”

Juror 19:
“This whole process made me more religious. I just can’t agree with the death penalty.”
“I just think killing another man is wrong. And I would be one of the members doing it. I just can’t kill another person.”

Juror 23:
“I would rather do the life imprisonment. I’m against the death penalty. It would have to be as personal as my child. I could not pass on the death penalty.”

Juror 27:
“I would leave myself open to persuasion, but I would be disinclined.”

Juror 35:
He said the death penalty is “cruel and unusual.”

Juror 42:
“Here’s the thing. This was a horrendous crime — hundreds, thousands affected. The magnitude was significant. At the same time, I do have reservations about the death penalty as a policy.”
“The age of the defendant has some weight in my mind. The defendant was 19 when the crime was committed. I look at that as a mitigating circumstance.”
“I would have a difficult time [voting for the death penalty]. Let’s put it this way: It would go against my judgment that the death penalty is a good idea for society. My personal belief is that the death penalty serves no constructive purpose.”
On could he vote for the death penalty, “If there were societal risks, I would say…possibly? It would have to be pretty compelling.”

Juror 43:
“I think it’s something I would struggle with. I’m not sure I have the personal constitution to participate in someone’s death.”

Juror 49:
Asked if she could conceive a situation “so disturbing or morally repugnant” enough to impose the death penalty, she said, “Pretty sure. No.”

Juror 51:
“I don’t object to the death penalty itself. But I could never decide somebody’s fate like that.”
“I don’t feel that it’s up to me to make that decision to take somebody’s life.”

Juror 54:
“It is not a logical punishment for any crime. It costs the state more. It carries the burden of being irreversible if the person is found not guilty afterwards. It’s proved not to be a deterrent.”
When asked if he could conscientiously vote to impose death: “I think it would be difficult for me, but honestly I think I could.”

Juror 57:
“I’m completely opposed to it.”
Asked if she could conceive of any case that would be so shocking that it would change your mind, she said, “No.”

Juror 60:
“Theoretically, I believe in the death penalty. It becomes very different when you’re looking at you making the decision.”

Juror 65:
“I think more often than not I am opposed to the death penalty … I’d have more difficulty voting for it, but I believe I could do it.”

Juror 67:
“I don’t believe in an eye for eye justice.”
“Government shouldn’t impose the ultimate penalty.”
“When someone does a heinous crime, you don’t do the same thing back.”

Juror 84:
“Upon reflection, I strongly oppose the death penalty. I think my answer would be he should not receive the death penalty.”

Juror 102:
“I have no view either way. I am really in the middle. I would have to hear everything and make an educated decision.”
“I was surprised that the death penalty was on the table.”

*I have been following Jim Armstrong on Twitter. He is covering jury selection for WBZ in Boston.


Dzhokhar Tsarnaev Death Penalty Trial Started Today

January 5, 2015

Dzhokhar Tsarnaev goes on trial for his life today in federal court in the so-called Boston Marathon Bomber case. First up will be jury selection, which is expected to take about three to four weeks with the trial expected to last until late May or June. The Court will be attempting to seat a jury of twelve, plus six alternates, who can devote the next six months of their lives to fairly and impartially listening to the evidence and deciding the case. Given extensive pretrial publicity and a consuming regional interest in the case, the Court may discover that it cannot find 18 people who have not prejudged the case. If that happens, the Court will have to move the trial to another district in the United States.

Meanwhile, CNN is reporting today that the government rejected a defense offer to plead guilty in return for a sentence of life without parole.

The Court has summoned over 1200 people to report over the course of the next three days at a rate of 250 people per half-day session. At each session, the prospective jurors will be given a questionnaire in which they will be directed to write down what, if anything, they recall and disclose if they have formed any opinions about the bombing and Tsarnaev’s guilt or innocence. They will also be asked to state their views about the death penalty. Copies of the completed questionnaires will be provided to counsel. Voir dire probably will begin next week after counsel have reviewed the questionnaires.

The jury selection process will take much longer than usual because the prospective jurors must be death qualified. That has to happen before the trial starts because, if the defendant is convicted, the same jury will have to decide whether to sentence the defendant to death or life without possibility of parole. By death qualification, I mean eliminating all prospective jurors who would automatically sentence the defendant to death or to life without possibility of parole without weighing the evidence admitted in mitigation against the evidence admitted in aggravation as required by the jury instructions. Opposition to the death penalty in the United States is highest in the Boston area. Therefore, do not be surprised if half or more of the prospective jurors are excused for cause because of their opposition to the death penalty. Since those prospective jurors tend to be better than others on reasonable doubt, you can reasonably expect the jury to be conviction prone.

For more information about the importance of death-qualifying a jury and how the defense will do it, please read:

Death Penalty Cases are Won or Lost During Jury Selection

Using the Colorado Method of Jury Selection in Tsarnaev Death Penalty Trial

Let’s take a brief look at the government’s case.

Dzhokhar Tsarnaev is accused of conspiring with his brother Tamerlan to assemble, place and detonate two IED’s (improvised explosive devices) near the finish line of the Boston Marathon on April 15, 2013. The indictment alleges that the two explosions killed a child and two adults and injured scores of other people. They also are accused of ambushing and shooting to death an MIT campus police officer four days later in a failed attempt to steal his gun and with carjacking a Mercedes sedan and kidnapping the driver who escaped on foot when they stopped for gas. The driver called 911 and provided information that enabled the police to find the Mercedes and the brothers in Watertown via GPS. A dramatic shootout ensued that ended with Dzhokhar running over his brother with the Mercedes and escaping into the night. The indictment alleges that he abandoned vehicle a few blocks away and hid in a trailered boat parked in a backyard. The owner of the boat discovered him there and called 911. Police responded quickly and, after shooting up the boat, they arrested him.

If the jury finds Dzhokhar Tsarnaev guilty, the biggest obstacle I see to an LWOP sentence is the death of the 8-year-old child because the jury probably decided that he intentionally placed the backpack containing the IED close to the child. If so, that act is absolutely chilling and the most difficult act to forgive. To make matters worse, his sister lost a leg.

It’s difficult to imagine the emotional impact of witnessing a child’s violent death. I still suffer PTSD from looking at crime scene and autopsy photos of dead children. This jury will get to see the boy die and it will be difficult for them to be merciful, especially if they believe in the death penalty.

Dzhokhar scrawled this note on a wall inside the boat,

The U.S. Government is killing our innocent civilians; I can’t stand to see such evil go unpunished; We Muslims are one body, you hurt one you hurt us all; Now I don’t like killing innocent people it is forbidden in Islam…. stop killing our innocent people and we will stop.

Judy Clarke and David Bruck have their work cut out for them.

For more information about the lawyers who make up the Federal Death Penalty Resource Counsel, go here.


Debra Jean Milke is free after spending 22 years on death row

December 12, 2014

Friday, December 12, 2014

Good evening:

Debra Jean Milke is finally free after spending 22 years on death row in Arizona for a murder she did not commit: the murder of her 4-year-old son Christopher. The cause of her wrongful conviction was egregious misconduct by an obsessed police detective who played God and a prosecutor who covered up for him. Judge Kozinsky, the Chief Judge of the Ninth Circuit Court of Appeals, lays out the facts:

On the last evening of his short life, Christopher Milke saw Santa Claus at the mall. He woke up the next morning begging his mother to let him go again. Debra agreed and sent Christopher to the mall with her roommate, James Styers. On the way, Styers picked up his friend, Roger Scott. But instead of heading to the mall, the two men drove the boy out of town to a secluded ravine, where Styers shot Christopher three times in the head. Styers and Scott then drove to the mall, where they reported Christopher as missing.

Sunday morning, less than a day into the missing-child investigation, police began to suspect Styers and Scott. It was supposed to be Detective Saldate’s day off, but the homicide sergeant in charge of the case called him in. A veteran of the police force, Saldate was confident he could get the truth out of anyone he interrogated. At headquarters he started in on Styers almost immediately, while his partner, Detective Bob Mills, worked on Scott. Shortly before 1 p.m., Saldate joined Mills in interrogating Scott. According to Saldate, Mills and other officers were happy to let a suspect talk, but Saldate’s “style,” as he described it, was “a little different” — he preferred a frontal assault. “I knew that I was going to be straightforward with [Scott], I was going to be very truthful with him, but I was going to make sure that whatever he told me was going to jive with the facts.”

Soon after Saldate’s appearance, Scott broke. He led the detectives to Christopher’s body and told them where he and Styers had thrown the unspent ammunition. According to Saldate, Scott said along the way that Debra Milke had been involved.Detective Saldate seized on the statement and flew by helicopter to Florence, Arizona, where Milke had gone to stay with her father and step-family after she learned of Christopher’s disappearance.

In Florence, a deputy sheriff invited Milke to headquarters to wait for Saldate. Saldate found Milke waiting in a 15-by-15-foot room of the Pinal County jail. She hadn’t been arrested, nor had she been told anything about Christopher. Saldate pushed into the room and introduced himself. He pulled his chair close to Milke, a forearm’s length at most, and leaned in even closer. That’s when he told her that the police had found her son — dead.

“What, what,” Saldate testified Milke said. Saldate also reported that Milke started yelling and “seemed to try crying.” But the detective saw through the ploy: “When someone is told that their child was murdered and they start to sob and no tears come to their eyes, it’s obviously a way for her to try to make me feel for her, and I didn’t buy it. I didn’t buy it….”

Saldate placed Milke under arrest and read out her Miranda rights. According to Saldate, when Milke started to tell him that she’d complained about Christopher to Styers but never realized Styers would hurt the boy, Saldate shut her down: “I immediately, of course, told her that wasn’t the truth and I told her I wasn’t going to tolerate that, that I wasn’t there to listen to lies, nor did I have the time.”

With that, Saldate claims, Milke opened up to him about the most intimate details of her life. He testified that, in the span of just thirty minutes, Milke knowingly waived her rights to silence and counsel, reminisced about her high school years when she was “in love with life,” feigned tears, calmed down, narrated her failed marriage to Mark Milke — his drug and alcohol abuse and his arrests — recounted how she’d gotten pregnant while on birth control and contemplated an abortion, even making an appointment for one, discussed her fear that Christopher was becoming like his father, confessed to a murder conspiracy, characterized the conspiracy as a “bad judgment call” and solicited Saldate’s opinion about whether her family would ever understand. (His view: No.)

By the end of the interview, Saldate had more than just cinched the case against Milke; he’d helped her emotionally. According to Saldate, Milke said she was “starting to feel better and was starting to get some of her self-esteem back.” Saldate also testified that Milke asked whether she would be released that night, and when he said she wouldn’t be, she asked whether the court could give her “probation for life” if “she could have her tubes tied and never have children again.”

Gasp! What a guy! A living, breathing, no bullshit polygraph machine. If only we had more detectives like him, we would not need courts. We could just take the guilty out into the desert, order them to dig their own grave, cuff them with their hands behind their back, force them to kneel by the side of the grave, execute them with a single gunshot to the back of the head and kick their body into the grave.

Milke had a different story. She denied confessing and claimed innocence. She said she asked for a lawyer, but he refused her request and kept telling her she was a liar.

The trial was a swearing contest between Milke and Detective Saldate with no corroborating evidence to support either one. Juries generally believe cops in swearing contests and this case was no exception. The jurors believed him and she was sentenced to death.

The Ninth Circuit reversed the conviction because the prosecution withheld powerful exculpatory information about Detective Saldate from the defense that likely would have resulted in an acquittal if the jury had known about it. Again, here’s Judge Kozinsky,

Normally that would be the end of the matter. Right or wrong, a jury’s credibility determinations are entitled to respect. But the Constitution requires a fair trial, and one essential element of fairness is the prosecution’s obligation to turn over exculpatory evidence. This never happened in Milke’s case, so the jury trusted Saldate without hearing of his long history of lies and misconduct.

The Appendix contains summaries of some of Saldate’s misconduct and the accompanying court orders and disciplinary action. This history includes a five-day suspension for taking “liberties” with a female motorist and then lying about it to his supervisors; four court cases where judges tossed out confessions or indictments because Saldate lied under oath; and four cases where judges suppressed confessions or vacated convictions because Saldate had violated the Fifth Amendment or the Fourth Amendment in the course of interrogations. And it is far from clear that this reflects a full account of Saldate’s misconduct as a police officer. See pp. 1010-11 infra. All of this information should have been disclosed to Milke and the jury, but the state remained unconstitutionally silent.

The Ninth Circuit reversed and remanded her case for a new trial. The prosecution was unable to retry her because the Saldate refused to testify. He took the Fifth because he is being investigated by the feds. Milke’s lawyers moved to dismiss the case and yesterday the Arizona Court of Appeals ordered the case dismissed. The Court wrote,

The failure to disclose the evidence “calls into question the integrity of the system and was highly prejudicial to Milke, In these circumstances — which will hopefully remain unique in the history of Arizona law — the most potent constitutional remedy is required.

Comments on Torture

Normally, I would stop here, but I am compelled to go further because of the right wing reaction to the Senate torture report. Make no mistake. The torturers, their enablers, and those who have willfully and intentionally concealed what they did belong in prison for the rest of their lives. That includes the two sex-psycho psychologists James Mitchell and Bruce Jessen, who were paid $81 million to feed their addictions, President George Bush, Vice President Dick Cheney, and CIA Director George Tennant. Torture is unlawful and never justified, ever. I have heard a lot argument about whether it provided useful information, but that is irrelevant.

I oppose Anthony Romero’s proposal that President Obama pardon the torturers. He is the Executive Director of the ACLU whom I normally support. However, I cannot do so this time because a pardons send the wrong message. Even though a pardon does not technically excuse the criminal behavior, people throughout the world would misinterpret it as a form of approval. I believe we have a right to insist that not be done in our names. These sadistic sexual psychopaths are war criminals, not patriots who got a little carried away.

We have developed a standardized procedure in this country for interrogating people suspected of committing crimes. It does not work all the time because we still see examples of false confessions. It does appear to work most of the time

Detective Saldate did not follow that standard procedure, which is so ingrained that police can recite it in their sleep. When they vary from it, one can reasonably assume they did so to conceal misconduct.

The standard procedure:

1) audio and video record the interrogation;

2) provide the suspect with a standard printed form that informs her of her Miranda rights:

– right to remain silent

-anything she says can be used against her in a court of law

-right to consult with a lawyer and have the lawyer present during any questioning

-right to have the court appoint a lawyer if she cannot afford to hire one.

3) Read her the rights, have her initial each one as they are read, and have her acknowledge that she understood her rights by signing the acknowledgement

4) Have her sign the waiver, if she agrees to give up her Miranda rights and give a statement.

5) Write out her statement

6) Have her read it out loud and sign it acknowledging that it is voluntary, true and correct.

It’s generally a good idea to have another detective present to witness the interrogation.

This procedure was adopted by the United States Supreme Court in Miranda v. Arizona, 384 US 436 (1966) with the hope of finally stopping police from extorting involuntary or false confessions from suspects, a widespread practice often involving the use or threatened use of torture to break the suspect’s will to resist. No one knows how many innocent people have been convicted, imprisoned and executed because of false confessions but it remains a problem despite Miranda.

Please read it, if you have any doubts about the efficacy of torture.

Meanwhile, Detective Saldate and the prosecutor who concealed Saldate’s odious history of playing God and committing perjury to obtain convictions should spend the rest of their lives in prison.

They almost cost Debra Jean Milke her life.


Craig Michael Wood moves to exclude confession that he killed Hailey Owens

April 19, 2014

Saturday, April 19, 2014

Good morning:

I write today to update readers regarding Craig Michael Wood, 46, who is charged with kidnapping and murdering 10-year-old Hailey Owens in Springfield, MO. I have three new facts to report:

(1) He has new counsel who are experienced death penalty lawyers;

(2) Hailey Owens was sexually assaulted; and

(3) He confessed to police.

Wood has a preliminary hearing scheduled for Thursday, April 24th. The purpose of the hearing is to determine whether probable cause exists to support the charges.

The test for probable cause is whether the evidence introduced at the hearing would warrant a reasonable person to believe that the defendant committed the crimes charged. Judges rarely dismiss charges at preliminary hearings and I expect no deviation from that practice on Thursday. A finding of probable cause will permit the State to keep Wood in custody until a grand jury indicts him. The indictment will set forth the final set of charges.

Defense attorneys usually have not received any discovery before preliminary hearings, so they use them to discover information about the prosecution’s case and lock witnesses into their testimony.

Because child welfare records obtained pursuant to a state FOIA request by the News Leader reveal that Hailey Owens was sexually assaulted, I am expecting the defense will inquire into that subject matter.

I also expect the grand jury indictment will contain a sexual assault charge.

Although the prosecuting attorney, Dan Patterson, has not announced whether he will seek the death penalty, I do not believe there is any doubt whether he will do so. The case is too egregious not to seek it because, if a state is going to have a death penalty, it’s going to use it to execute people who kidnap, sexually assault and murder a child.

Because this will almost certainly be a death penalty case, the court has appointed Patrick J. Berrigan and Thomas Jaquinot to represent Wood. Berrigan and Jaquinot are death-penalty lawyers who work for the Capital Division of the Missouri Public Defenders Office. Berrigan has considerable experience handling death cases and an excellent reputation.

They have already done something unusual that suggests they are diligent and know what they are doing. Yesterday, they filed a motion to suppress (exclude) Wood’s statements to police. The motion is not unusual, but the timing certainly is. These motions are typically filed after indictment, but before trial. I have never seen a motion to suppress filed before indictment and scheduled to be considered at the preliminary hearing.

Do not be surprised if the judge declines to consider it on the ground that he is not a circuit court judge and lacks the authority to do so. If he does consider it, I doubt there is any chance he will grant it, assuming he wants to keep his job.

However, he may permit defense inquiry far beyond the permissible scope of inquiry in a normal preliminary hearing where the scope of inquiry is limited to whether probable cause exists. I suspect that is the real reason defense counsel filed the motion. If so, it was a brilliant move to not only broaden the scope of inquiry, but to lock police witnesses into their testimony about what Wood said and the circumstances that existed when he said it.

Defense counsel assert in the motion that Wood was drunk, drugged and mentally ill when police took him into custody, that they failed to advise him that he had a right to remain silent and refuse to answer their questions, that they ignored his request to consult with counsel before answering their questions and that they coerced him into providing a statement by promising they would go easy on him, if he cooperated and told them the truth.

Assuming for the sake of argument that the assertions are true, the statement would be inadmissible because it was involuntary and obtained in violation of the Miranda rule.

We have been watching Gerrie Nel, an excellent prosecutor, and now we are going to have an opportunity on Thursday to watch an excellent death penalty lawyer, Patrick Berrigan.

You will not want to miss this hearing, so please join us for the live stream on Thursday and check-in with us each day between now and then for updates and reports on other cases.

If you appreciate what we do and have not yet made a donation for this month, please do so today. You will not find more knowledgeable in depth no-nonsense coverage of legal matters anywhere else on the internet.

Thank you,

Fred


Zanesville jury rejects death penalty and recommends LWOP in gruesome slaying

October 23, 2013

Wednesday, October 23, 2013

Good morning:

A jury rejected the death penalty and recommended life without parole for LaFonse Dixon, one of three defendants charged with the gruesome murder of 29-year-old Celeste Fronsman. She was found alongside a highway in Muskingum County, Ohio by a passing motorist. She had been beaten, burned and had a strap around her neck. She died two days later in a hospital.

Dixon’s two female codefendants, Katrina Culberson and Monica Washington, pled guilty and agreed to testify against him to avoid the death penalty. Defense counsel argued that the two women committed the murder and Dixon was innocent.

Hannah Sparling of the Zanesville Times covered Katrina Culberson’s testimony at the trial.

In the days leading up to the murder, Culberson said she and Dixon were angry at Fronsman for a couple of reasons. One, Fronsman owed her some money, Culberson said. Two, there had been a drug raid a couple of weeks before at one of Dixon’s drug houses, and they thought it was Fronsman who told police, Culberson said.

“Celeste was telling on a couple people. She was scared,” she said, adding that she and Dixon “kind of both talked about killing her and bringing her down to Zanesville.”

Fronsman laid low for a while, but eventually, Culberson and Washington tracked her down. They chased her to a Walmart parking lot, then Culberson sweet-talked Fronsman, she said, telling her it would be OK and she wasn’t going to hurt her.

She convinced her to get in the car with them, then they went to pick up Dixon.

Up until that point, there really wasn’t a plan, Culberson said, but when Dixon got into the vehicle, the two shared a look, Culberson said.

“We kind of looked at each other like, ‘It’s on. It’s about to happen,’” she said.

Then, Culberson started driving, and Dixon started punching Fronsman in the face, she said.

“She kind of screamed the first punch, but after that she didn’t really do anything,” she said.

They drove around Canton for 15 or 20 minutes before Culberson merged onto Interstate 77 south, she said. Throughout, Dixon and Washington were beating Fronsman, Culberson said. They used a belt and tape to bind her hands, then Dixon stuffed napkins in Fronsman’s mouth and Washington tied a shirt around her face, Culberson said.

At one point, Culberson climbed into the backseat and hit Fronsman several times with the handle of a screwdriver, she said. Then, she pushed her feet into Fronsman’s neck, and blood started gushing out her eye.

At another point, Dixon got a strap out of the back of the vehicle and wrapped it around Fronsman’s neck, strangling her, Culberson said.

Fronsman was slapping the seat and trying to get away, but “really, she couldn’t do much. Her face was turning blue,” Culberson said.

Once they reached the Tri-Valley recreation area, Dixon and Washington carried Fronsman to a patch of tall grass and laid her down, Culberson said. Then, Culberson got a gas tank out of the car and poured gasoline on Fronsman’s body. Dixon gave her a lighter, she said, and she lit the flame.

The three of them cleaned up what they could, then they drove away, Culberson said, leaving Fronsman behind.

The defense called two witnesses, an EMT who attended to Fronsman during the ride to the hospital and a DNA expert.

The EMT testified that Fronsman only mentioned Culberson.

The DNA expert disagreed with the prosecution expert who had testified that Dixon’s DNA profile matched a DNA profile that was obtained from masking tape used to bind the victim. She said the sample obtained from the masking tape was a mixed sample with multiple contributors and Dixon could not be excluded as a source of the mixed sample.

The defendant did not testify.

I suspect that, although the jury convicted Dixon of the murder, it was unable to agree on the death penalty due to lingering doubt. A lingering doubt is not a reasonable doubt. Nevertheless, it is a sufficient doubt to cause many jurors in death penalty cases to reject the death penalty in favor of a life without parole sentence.

As many death penalty lawyers have long suspected, including myself, most jurors require certainty to sentence a defendant to death. I think the LWOP verdict in Dixon’s case is another example of that principle.

The result in this case may be shocking to some, but it is consistent with the national trend in loss of support for the death penalty.


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