Thursday, October 27, 2011

The Impending Execution of Hank Skinner: Open Deliberation

Hank Skinner sits on death row awaiting execution by the people of Texas. His case is one of the most factually and legally complicated cases I have encountered so far. In this post, I will begin with the State's case for Skinner's guilt from his original appellate decision Skinner v. State (1997).
Appellant raises twenty-one points of error, including a challenge to the legal sufficiency of the evidence to support the conviction. We will address the points in the approximate order in which they are raised. Review of the facts in the light most favorable to the verdict is necessary.

Appellant lived with his girlfriend, Twila Busby, and her two mentally-retarded sons, 22-year-old Elwin Caler and 20-year-old Randy Busby. Around 9:30 on the evening of December 31, 1993, Twila and appellant called a friend of Twila's, Howard Mitchell, and told him they wanted to go to his New Year's party, but needed a ride there. Between 10:15 and 10:30 p.m., when Mitchell went to pick up the pair, he found appellant passed out on the couch and was unable to wake him. Apparently, appellant had been drinking.

Leaving appellant in his stupor, Twila and Mitchell went to Mitchell's trailer where a party was in progress. Twila was followed around at the party by her drunken uncle who made rude sexual advances toward her and generally agitated her until she asked Mitchell to take her home. Mitchell drove Twila home between 11:00 and 11:15 p.m., and left.

At midnight, Police Officer Fred Courtney was dispatched to investigate a stabbing at an address located across the alley from appellant's residence. He arrived to find Elwin Caler sitting on the porch of a neighbor's house with a blanket pressed against his side. Elwin had a mortal stab wound under his left arm and superficial wounds to his right hand and stomach. He was taken to the hospital where he died at 12:45 a.m..

Four blocks away, also at midnight, appellant knocked at the door of his former girlfriend, Andrea Reed. Reed asked appellant to leave, but he entered the house and told her that she had to help him because he had been stabbed and shot. Appellant's shirt and pants had a great deal of blood on them. Appellant removed his shirt, but Reed could find no injuries except for a bleeding cut in the palm of his right hand, which she agreed to suture.

Reed and appellant conversed for almost three hours during which time appellant made a series of inconsistent statements about the cause of and events surrounding his injury. At one point Reed attempted to leave the room to call the police, but appellant stopped her and threatened to kill her. Reed told him she was going to call Twila to ask her what happened and appellant claimed that he caught Twila in bed with her ex-husband and fought with him. Eventually, appellant offered to tell Reed what really happened if she would promise not to reveal it to anyone. When Reed promised not to tell, appellant stated that he thought he had kicked Twila to death.

While appellant was at Reed's house, the police were investigating Elwin's stabbing. As they approached the house where Elwin lived with his mother, brother, and appellant, the police noticed a trail of blood spots on the ground running from the front porch to the fence line. There was a blood smear on the glass storm door and a knife on the front porch. Upon entering the residence, the police found Twila's dead body on the living room floor. It was later determined that she had been strangled into unconsciousness and subsequently beaten at least fourteen times about the face and head with a club. An ax handle stained with blood and hair was leaning against the couch near her body and a black plastic trash bag containing a knife and a towel with wet brownish stains on it was laying between the couch and the coffee table.

Officer Morse Burroughs proceeded to the bedroom where Elwin and Randy usually slept in bunk beds. He found Randy's dead body laying face down on the upper bunk, covered by a blood spotted blanket. Randy had been stabbed in the back three times. A door leading out of the bedroom and into a utility room yielded further evidence. Burroughs noticed a bloody handprint located about 24 inches off the floor on the frame of this door. He also noted a bloody handprint on the door knob of the door leading from the kitchen to the utility room and a handprint on the knob of the door exiting from the utility room into the backyard.

The police arrested appellant at Reed's house at approximately 3:00 a.m.. They found him standing in a closet wearing blood-stained socks and blood-stained blue jeans. He appeared intoxicated. A toxicological test on a blood sample appellant voluntarily provided at 5:48 a.m. showed appellant to have 0.11 milligrams of codeine per liter of blood and a blood alcohol level of 0.11 percent. Tests on the blood on appellant's clothing was found to belong to Twila and Elwin. In a tape-recorded statement to the police, appellant claimed to remember little of what happened on the night of the murders after he fell asleep on the couch. Autopsy evidence showed all of the murders to have been committed in the same general time frame.

In his first point of error, appellant claims the evidence is legally insufficient to support the verdict that he killed three people during the same criminal transaction. Appellant concedes that the evidence is sufficient to prove that appellant killed both Twila and Elwin. He also concedes that appellant left the bloody handprints

In reviewing the sufficiency of the evidence, this Court views all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. The physical evidence connected appellant to the murders of two of the victims. Appellant also stated that he thought he had killed Twila. All three victims lived in the same house, and all three were apparently home with appellant around the time of the murders. No evidence other than appellant's own statement indicates that anyone else was in the residence during the time of the murders. Also, a trail of blood spots ran from the front porch of the residence to the fence line and only one victim was found outside of the house. Given the totality of the evidence, it was rational for a juror to believe beyond a reasonable doubt that appellant killed all three of the victims during the same criminal transaction. Point of error one is overruled.
I now boldy excerpt most of an article from the Huffington Post by David Protess.
Hank Skinner ... has been on death row in Texas since 1995 for the murders of his girlfriend and her two adult sons in their Panhandle home. He has steadfastly professed his innocence. In recent years, the State's star witness recanted her testimony to my journalism students and others, and several witnesses told the students that the female victim's uncle (now deceased) was the likely killer.
And, there is DNA. Some DNA tests, including on a trail of blood leading from the home, excluded Skinner. Other tests placed Skinner at the scene. (He was a frequent visitor to the home and claims he passed out the night of the crime from a combination of codeine and alcohol. A witness and two experts back his story.)
But most stunning is the physical evidence that has never been tested. The rape kit was not tested. The murder weapons were not tested. Several hairs clutched in the female victim's hand were not tested. A distinctive windbreaker strongly resembling the uncle's found two feet from her body and covered in blood? Not tested.
Since 2000, Skinner has repeatedly asked the local D.A. and the courts to order tests on the remaining evidence, confident they would prove his innocence. Each time, his plea has been denied on the grounds that he did not make the request before his trial. So, on March 24, 2010, Texas planned to execute Skinner while the evidence sat in a storage locker controlled by the current D.A., Lynn Switzer.
Less than an hour before the execution, Skinner's fortune changed -- for the time being. While munching on his last meal, he learned from his lawyer that the U.S. Supreme Court had issued a temporary stay. Prison guards abruptly escorted Skinner from his holding cell outside the execution chamber in Huntsville to his cell on death row in Livingston.
A few weeks later, the Court agreed to hear the case before another attempt could be made on his life. Finally, in a landmark decision earlier this year, the justices ruled 6-3 that Skinner had the right, under federal civil rights law, to sue D.A. Switzer to seek access to the remaining physical evidence for possible DNA testing.
As a federal magistrate in Texas considered the lawsuit that quickly followed, Skinner had another temporary stroke of good fortune. In May, the Texas legislature overwhelmingly passed a bill guaranteeing the right to post-conviction DNA testing, and in June Gov. Rick Perry signed it into law. The bill's sponsor publicly said that it was designed for cases like Skinner's and in memory of another prisoner, Tim Cole, who tragically died behind bars before DNA tests proved his innocence.
Suddenly, Skinner had two chances for justice: the federal lawsuit against the D.A. to gain access to the physical evidence in his case, and a new state law assuring the tests.
What happened next defies imagination. A Texas judge, days before the new statute went into effect and the DNA motion was filed, set another execution date for Skinner: November 9th. That's right. Skinner is scheduled to die in a month -- while two judges continue to contemplate whether he can test the evidence that might clear him.
Under other circumstances, the courts would issue a stay of execution and allow both civil actions -- one authorized by the highest court in the land, the other by the state legislature -- to move forward. Unfortunately for Skinner, however, the U.S. magistrate almost certainly lacks the authority in a federal civil case to issue a stay of execution in Texas. How about the state court judge with the DNA motion on his desk? He happens to be the same judge who set Skinner's execution date for November 9th.
Without intervention by the Texas Court of Criminal Appeals, Gov. Perry, or the U.S. Supreme Court, Hank Skinner may well die before the DNA tests can be conducted. Welcome through the looking glass into the criminal justice system, where up is down, and down is up.
Fighting back, Skinner's advocates have posted a petition asking D.A. Switzer to "do the right thing" and order the tests on her own. And Skinner has gained support for his cause from, among others, six of the jurors who found him guilty and voted for death.
There are plenty of links to follow, so you can be reasonably well educated about the case if you wish. I will now open deliberations. In a few days, I will post my chapter on Hank Skinner from my impending book, about Rick Perry, the title of which is still being considered.

ADDENDA: My take on the Skinner case is now available here.

Tuesday, October 18, 2011

The Impending Book about Rick Perry

Blogging will be light for the next two weeks. I have a self-imposed deadline of completing a Kindle book by the end of the month. Not only am I willing to share the proposed title with you, I'm going to give you an opportunity to chime in with improvements.

I guess I should begin by describing the nature of the book. I intend to write seven chapters. Chapter 1 will be an introduction to Rick Perry and his stewardship of the death penalty in Texas. The next six (possibly seven) chapters will each deal with a specific case of someone who was certainly / probably / possibly innocent, but who was nonetheless executed (or came within a day of being executed) while Rick Perry did nothing.

I guess I should then have a thought provoking closing chapter as well.

The Skeptical Spouse and I have been wrestling with a title. For a while now, the working title has been:

America's Executioner

She thought of it, and I liked it, and that's what I've been assuming as the title for a month now. We just finished speaking of the subject again. I think Rick Perry's name needs to be in the title, so I proposed:

Rick Perry: America's Executioner
America's Executioner: Rick Perry.

She grimmaced.

One of us (it's frightening that I already can't remember which one of us) suggested we put his name in the subtitle. A bunch of poorly formulated ideas came forth, such as

America's Executioner
Six Cases of Wrongful Execution under Rick Perry's Watch

She cringed.

Neither of us could come up with anything we liked. Suddenly she suggested, as a subtitle

Rick Perry's Grave Mistakes

I don't think she consciously realized the brilliance of using the adjective "grave." Now I really, really like the sub-title, and I really, really like the title, but I don't think they work together as Title / Subtitle. So let's give it a try.

America's Executioner
Rick Perry's Grave Mistakes

See what I mean? What we have here is two good titles and no good sub-title. The title should catch your eye and the sub-title should explain what's in the book. We have two eye-catchers and no explainer.

So now I wonder about this:

Rick Perry's Grave Mistakes
Six Cases of Innocents Executed

No grimace. No cringe. No Skeptical Spouse. She left the room a bit ago. Still, I think it's the best so far. The problem is I'm not writing of six (possibly seven) executions. I'm writing of four (possibly five) executions and two people who came within one day of being executed.

But I'm getting closer, no particular thanks to me. So I now solicit input from you, my clever and insightful readership. Which of the options seem to work? How might they be improved? Should we start over?

Do you have a brilliant idea for a book title, but no book to use it on? If you do, I have a book without a title.

I understand this is how Reese's Peanut Butter Cups got started.

Friday, October 14, 2011

The Impending Execution of Frank Martinez Garcia

Frank Martinez Garcia sits on death row awaiting execution by the people of Texas on 27 October. I think there is zero chance he will survive the day. I summarize the State's case against Garcia by excerpting from the appellate decision Garcia v. Thaler (2009). Throughout the excerpts, I've substituted the word "petitioner" with "Garcia" or "Frank Garcia" to make for easier reading.
On the morning of March 29, 2001, Frank Garcia fatally shot uniformed San Antonio Police Officer Hector Garza and Garcia's wife Jessica inside the home Garcia shared with Jessica, their children, and Garcia's parents. There is no genuine dispute about that fact. After subsequently firing several shots at others outside the Garcia residence, wounding one person, and causing damage to a nearby elementary school, Garcia surrendered to police and gave a formal, written statement in which he admitted to intentionally killing both officer Garza and Jessica. ...

The guilt-innocence phase of Garcia's capital murder trial commenced on February 4, 2002. In addition to the testimony summarized above, Garcia's jury also heard testimony from forensic and firearms experts regarding (1) the MAC-10 semi-automatic weapon and the Egyptian-made AK-47 assault rifle Garcia used to shoot Officer Garza and Jessica, (2) ballistics evidence about the shell casings and bullet fragments found at the crime scene, and (3) testimony regarding the blood, blood spatter, and other trace evidence recovered from the crime scene and Garcia's clothing. The foregoing testimony corroborated those portions of Garcia's written statement in which he admitted to having emptied both the semi-automatic pistol and assault rifle following his fatal shooting of Officer Garza and Jessica. The defense presented no witnesses or other evidence during the guilt-innocence phase of Garcia's capital murder trial. On February 8, 2002, after deliberating less than three hours, Garcia's jury returned a verdict of guilty.
From Footnote 1.
The autopsy of Officer Garza revealed (1) he died as a result of four gun shot wounds, each of which would have been fatal alone, (2) the four shots struck Garza, respectively, in the head, two in the back of the neck, and one in the abdomen, which penetrated the lungs and aorta, (3) the shot through Garza's chest was likely the first to strike him, (4) the shots to Garza's chest and head came from a non-high-velocity weapon, and (5) the two shots which struck Garza in the neck came from a high velocity weapon, exited through the skull, and caused massive damage to the brain and cranial vault.

The autopsy performed on the body of Jessica Garcia revealed (1) she died as a result of three gunshot wounds, only one of which would have been fatal alone, (2) the fatal gunshot struck Jessica in the left forehead, fractured her orbital area, and penetrated through the midbrain, (3) the two, non-fatal shots struck her in the right cheek and her chin, (4) all the gunshots which struck Jessica came from a non-high-velocity weapon, and (5) the latter two gunshot wounds likely struck Jessica while she was down on the floor.
From Footnote 2.
Several witnesses testified to having personally witnessed Garcia firing two different weapons at persons located outside the Garcia residence on the morning of the fatal shootings.

A friend of Jessica testified (1) an emotional Jessica called her on the morning of the fatal shootings and asked her to help Jessica move out, (2) after securing assistance from John and Rosario Luna, she rode with the Lunas to Jessica's residence, (3) Garcia's mother interfered with their efforts to help Jessica remove clothing and other personal items from the Garcia residence, (4) she overheard Jessica telling Garcia over the phone that Jessica was leaving him, (5) Garcia arrived at the Garcia home before the police and Garcia grabbed Jessica in a head lock and dragged her back inside the Garcia home, (6) moments later a police officer walked inside the Garcia home, (7) a few minutes after the officer entered the house, she heard three-to-four shots in rapid succession come from inside the house, (8) after a pause, she heard a second series of approximately three shots come from inside the house, (9) Garcia then emerged from the house, pointed a firearm, and fired several shots, at least a few of which struck their vehicle, (10) Garcia fired at her and John Luna as they attempted to flee the scene toward a nearby elementary school, (11) Garcia went back inside the house and she heard several more shots, (12) Garcia emerged from the house a second time holding a big rifle and fired that weapon, striking the truck behind which she was hiding, i.e., the same truck Garcia had driven to the scene, and (13) she saw Garcia chasing after John Luna as she fled for the safety of the school.

The then-vice-principal of the nearby Emma Frey Elementary School testified (1) she noticed a police vehicle in front of the Garcia residence when she arrived at school around 7:30 that morning, (2) she later noticed the police vehicle was gone when she saw Jessica outside the Garcia residence between 8:45 and 8:50, (3) around nine a.m. she was alerted to a problem by other staff, (4) as she exited the campus building near the Garcia residence, she saw a man later identified for her as John Luna running toward her who was yelling "Get out of here. He's shooting at everyone," (5) she looked toward the Garcia residence and saw a man in the yard holding a rifle, who then pointed it at her or in her direction, (6) as she and Luna attempted to flee away from the Garcia residence, she heard four shots, (7) the school custodian let her and Luna inside the school, (8) once inside the school, she climbed to the second floor, ordered the school locked down, telephoned school district police, and looked out and saw Garcia with the rifle in the front yard of the Garcia residence walking away from the school, and (9) subsequent examination of the school's exterior disclosed several indentations in the front doors, as well as a hole in a window screen that had not been present before the shootings.

The San Antonio Police Officer who arrested Garcia testified (1) he knocked repeatedly and announced himself before entering the Garcia residence, (2) he heard a box of bullets hit the floor and footsteps running his direction, (3) he heard a rifle racking and smelled gunpowder and blood, (4) Garcia came out and pointed an assault rifle at him, (5) when Garcia saw the officer's weapon, Garcia retreated, shouted "I give up," and threw down his rifle, and (6) Garcia thereafter offered no resistance.

In his five-page, formal, written statement executed only hours after the fatal shootings, ... Garcia admits he deliberately fired at officer Garza's head multiple times and then turned his weapon on his wife.
I find no one arguing that Frank Garcia is anything other than absolutely guilty of the crimes for which he is scheduled to die. The case, however, presents an interesting twist regarding Frank's mother. From a schizophrenic editorial in the San Antonio Express News, on 6/30/2001.
It was all about the grandchildren. Eustacia Garcia didn't want to lose them.

According to several reports, she was willing to let her daughter-in-law leave, just not with the children.

Jessica wasn't about to abandon her babies to the man who is alleged to have battered her for seven years, nor to the in-laws who'd let him.

No matter how we imagine that horrific situation, we cannot imagine Eustacia and her husband, Francisco -- who shared that same, small three-bedroom house -- weren't aware that Frank, Jr. beat Jessica. Often. Viciously.

According to a grand jury indictment, when Jessica started packing -- shortly after Frank, Jr., had left for work -- Eustacia tried to stop her. First, she called the police, but Veteran San Antonio Officer Hector Garza explained that Jessica had the right to leave, the right to take her own children with her.

So Eustacia called her son.

Jessica nearly escaped. The car was loaded. Reports indicate she was just gathering the children, just ready to leave when Frank arrived.

He is charged with shooting her to death.

He is also charged with the shooting death of Officer Garza, after Garza had responded for the second time that day.

This would not have happened, contends the Bexar County District Attorney's office, if Eustacia Garcia had just let Jessica leave, so they've charged her with voluntary manslaughter.

"Eustacia was aware of the circumstances. She was aware her son was violent, would be violent and that Jessica was trying to leave when Frank wasn't home in order to avoid violence. Knowing there was a substantial risk, Eustacia acted recklessly in calling Frank, Jr.," explains First Assistant District Attorney Michael Bernard.

That, in a nutshell, is the definition of voluntary manslaughter, "consciously disregarding a substantial and unjustifiable risk."

Why did Eustacia call her vicious, possessive, violent son? Didn't she think that at the very least, he'd beat Jessica?

For seven years, Eustacia allowed abuse to permeate her home. Perhaps she believed family unity must be preserved, no matter how painful the circumstances.

Perhaps she considered abuse a normal part of marriage. Maybe Eustacia was also a battered wife. But Bernard says there is "no indication that Eustacia was abused."

Some see Eustacia as a victim, accused of a crime because she tried to protect her family. This perspective assumes Eustacia thought Frank could prevent the children from leaving. It asks how she could have known her son would commit murder.

But family loyalty cannot supersede the dictates of common sense. If Frank had robbed a bank and Eustacia had driven the car, she'd be criminally responsible -- even if she'd planned a non-violent robbery.

In this case, we don't even have that assumption. Eustacia allegedly knew Frank had beaten Jessica before. Of course he'd beat her again. Obviously, violence often causes death.

By calling her son, Eustacia created the situation that killed Jessica. And for that, she must be held criminally responsible.

But before we condemn Eustacia completely, we should remember that she is a grandmother, terrified of losing her grandchildren, her living legacies, her immortality.

As we approach our end and wonder what will survive when we're gone, we realize the only thing that endures is life itself. The life we live through our children, and their children, for generations on end.

What would we do, to protect our legacy?
With respect to the propriety of executing Frank Garcia, I stand mute. With respect to charging his mother with manslaughter, I solicit your comments.

The next impending execution we will consider will be that of Hank Skinner. Prepare to be amazed.

Thursday, October 13, 2011

Reader Response to My Offer and Challege

I previously made both an offer and a challenge to readers of this august blog to investigate a case and write it up as a post herein. Five people have taken me up on the offer and/or the challenge so far. Each asks that I keep their name anonymous, at least for now, I shall do so.

One person initially intended to look into the case of Charles Raby or Robert Pruett. After I mentioned that I  have transcripts, case documents, and an inside source for the David Wayne Spence case, the person seemed interested in taking on the overwhelming task of looking into that cases.

Reader Mols offered (in a comment) to look into the case of Reginald Clemmons. I asked her to email me, we have communicated a little about the case, and it looks like a really bad one. Really bad.

Three readers have agreed to independently look into the case of Preston Hughes III, as I requested in a recent post. I see no problem having multiple people look into the same case. I know if I were working in parallel with another investigator, I would want my investigation to be thorough and correct if for no other reason than my work would be compared to others.

One common thread among the volunteer researchers is that they are all busy. None of them offers a quick response.

Another common thread is that I gave them all similar advice on how to get started: gather information. I gave some suggestions on how they might find such information online. I also gave some general thoughts on how they might try organizing the information once they gather it.

One volunteer researcher recently wrote:
So in gathering testimony, evidence and so forth, accessing primary trial transcripts for free is limited to what is published in the appellate documents. I'm finding transcripts of the testimony given at the original state trial where he was convicted from secondary sources. Is this how you acquire testimony or is there some other way to get transcripts of the State trial without paying a boat load of money?
My short answer was "Welcome to the first gigantic hurdle." I offered to give a more complete response in a post, so here we go.

Regarding the following discussion of trial transcripts, I caution that I am not an expert, that the situation varies from state to state, that I might be wrong, and that what knowledge I think I have is probably out of date. With that in mind, here's what I think I know.

All trials in this country are supposed to be public, as stated in the banner to this august blog. It's from the Sixth Amendment. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury ..."

You can go to any courthouse in this country and walk into any courtroom holding a trial and sit down a listen to what's going on. You may not participate, and you may not disrupt, but you can certainly listen. (Also, although it's not guaranteed by the Constitution, you can sit through many court procedures, such as a string of defendants taking plea bargains. I've seen that, and it's distressing. It seems as if some of these people are seeing their court appointed attorney for the first or second time, they have no idea what to do, they want to talk to their families, they're not allowed to. Instead they're assured by the judge if they don't take the plea they will be almost certainly be convicted and sentenced harshly. At least that's what I saw, and it pissed me off. I think I'm still a bit peeved. But I digress.)

Even though the trial is open and free to the public, the trial transcripts are not. In fact, the trial transcripts are difficult for most people to get hold of. Jurors are certainly not allowed copies of the transcripts in the jury room. In part, that's because the transcripts contain sidebar discussions and other discussions held out of the presence of the jury. The jury is not allowed to hear all that. Also, it takes time to for the court stenographer to transcribe the proceedings from that funny little typewriter they use to English text.

I'm not particularly surprised that the jurors are not allowed copies of  even redacted transcripts, though I think they should be. (What I find shocking is that many (I think most) jurisdictions do not allow jurors to even take notes. I've always been allowed to take notes, so I was shocked to learn that note taking is only allowed in some jurisdictions. The stated concern of the court is that the note-taking will distract the jurors from the testimony.  There is simply no way in hell, however, to remember accurately all that is said in court. I can't imagine deliberating the cases I deliberated within having twelve set of juror notes. Even with those twelve sets of notes, we frequently couldn't agree on what had been testified. But I digress.)

Even the people convicted or acquitted can't get trial transcripts for free, unless the court orders the State to pay for the transcripts. The court may or may not so order in the case of a retrial or a decision to appeal.

My understanding is, however, that all trial transcripts are ultimately public, but the public will have to pay for them. This money frequently, perhaps usually, goes to the court recorder as a fee for transcribing transcripts that would have otherwise been preserved only as the paper from that strange little typewriter thing they use. The cost is, as I recall, a $1.00 or $1.50 a page. It varies. Since the pages are formatted such that none of them contains a who lot of testimony, the transcripts consist of many, many pages. They cost a lot.

Sometimes, the court has copies of transcripts which have already been transcribed. They will allow you to copy them, for a fee. At one point, I wanted the transcripts from the Ramzi Youssef trial. (He was the mastermind behind the first World Trade Center bombing. I have a theory about that bombing that I wanted to pursue. Maybe I'll discuss that sometime in the future, but not now, because I don't want to further digress.) The transcripts existed at the courthouse in New York City, which is almost as far from my house as can be and still be within the continental U.S. I learned that I would be allowed to go there and copy them one page at a time using their copier for $0.25 per page. There were 15,000 pages as I recall. I was trying to figure out how many days it would take me to make the copies, and how much it would cost me to rent a room for several nights, and how much it would cost me to fly there, and get transportation from the airport. Then my head started to spin.

You won't be surprised to learn that I still don't have the transcripts for the Ramzi Youssef trial. If anyone has a copy and would like to send me a copy of your copy, that would be great.

I do have a number of trial transcripts which I have obtained for free in several fashions. I have a copy of the transcripts from the trial in which I held the jury out for eight days, forcing a retrial and the ultimate release of the defendant. The judge, to our amazement, ordered the State to pay the cost of those since the defendant was going to be retried. I studied those transcripts thoroughly, and I was surprised how much I had missed listening to the same testimony as a juror. I knew in great detail what the witnesses had said in the first trial, informed the defense attorney about witnesses who changed their testimony in the second trial, and helped prepare closing arguments in which we convinced the second jury that multiple State witnesses had perjured themselves.

I have a copy of the Bryon Case transcripts. I downloaded them from the site that opposes Byron's release. I have no idea how they got them.

I have a copy of the Michael Ledford transcripts. His mother sent them to me when I agreed to look into his case. I believe the court provided them for free because Michael appealed his conviction.

I have a copy of the transcripts from three trials associated with David Wayne Spence. I found them online after I had written briefly about his case. I downloaded them just in case. I'm now glad I did. Matters are picking up on that case. I have no idea, however, how I'm going to find time to go over all of them.

I have transcripts on some other cases too, as I recall. For a while, I was simply downloading transcripts whenever I came across them, just in case.

One way to write about a case using transcripts as a reference is to search for a case with transcripts. That's what I was doing when I stumbled across Byron Case.  Some people claiming innocence put up web pages having links to trial transcripts and other case documents. I consider that a good sign. It tells me they are not afraid of the data.  In Byron's case, I found one site claiming he was innocent and one site claiming he was guilty, and both had case documents. It was a gold mine, and the deciding factor for me looking into that case.

So there you go. More than you wanted to know about finding free trial transcripts for researching a case.  In summary, I think having the trial transcripts is way preferable to not having them. In fact, transcripts have been absolutely essential for my efforts to help in the one case past and the two cases present. If you want to work on a case that has free trial transcripts available, I suggest you search for a case in which one side or the other has placed the transcripts online for download.

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Tuesday, October 11, 2011

The Impending Execution of Christopher Thomas Johnson: My Analysis

I presented the case against and (best as I could) for Christopher Thomas Johnson here. If you have not read that post and the comments, you are unlikely to understand this post.

I almost didn't open deliberation in Johnson's case, since his guilt is abundantly clear. He not only admitted his guilt, he encouraged his own execution to the extent it seems almost as if he was pursuing suicide by State, as PolyWogg observed.

I am nonetheless pleased with my sagacity in opening the case to deliberation because of the quality of comments that followed.

Anonymous J is unwilling to stand in the way of a self-confessed murderer who volunteers for the needle. Sweet and to the point.

In what seems like a clear cut case, PolyWogg opens her discussion with "I see only five possible things to debate." I suggest readers elsewhere would find nothing to debate.

Simply Anonymous wonders whether the state had proven intent, then ponders whether it would be cruel and unusual punishment to sentence him to life imprisonment when he demanded to be executed. An interesting question.

English Observer wonders about mental health issues, suggesting that the State should have satisfied itself that Johnson was sane before it pursued his execution. (I suspect the State did have him examined, and the psychiatrist indicated Johnson knew right from wrong. That's about all it takes.)

And there was not a single, mindless "Let him fry and good riddance" in the lot.

In every case in which I sit as a juror, whether physically or vicariously, I look for weaknesses in the State's case. They have the burden of proof, even in a case such as this, and I refuse to relieve them of that burden. There are a couple issues in the case that attracted my attention.

Looking at what little timeline information is available, I see the mother went to bed after 1 AM, got up at 9 AM, and saw bruises on the baby. The doctor also noticed bruises on the child's body. Since it takes a while for a bruise to develop, the assault must have occurred at least in part some time before the bruise became obvious. As a juror, I would like to know how long it takes for such bruise to occur. I would also like to know if bruises can form postmortem. As I juror, a possibility hits me. The bruises were caused by an earlier assault.

The ME also said that the baby suffered 85 recent and separate injuries of great variety (and cruelty). How long would it take to inflict so many injuries, I wondered. At one every 6 minutes, that would be 10 per hour. That would take 8.5 hours of intermittent violence. If instead the injuries were inflicted at the furious rate of one every 6 seconds, that would be 8.5 minutes of unrelenting violence. Neither seems likely to me. I wondered a bit more if some of the injuries might have been pre-existing.

Also, Johnson stated that it was the hardest that he ever hit the baby. That sure sounds as if he had hit the baby previously.

At this point, I would suspect that the baby had experienced abuse earlier. I would also suspect that the mother could not have been ignorant of Johnson's violence towards her child. I would suspect there was more to the story than I was being told.

None of my musings, however, made any reasonable case that Christoper Thomas Johnson might be factually innocent of the crime for which he is scheduled to die. I therefore stand mute with respect to the propriety of his execution.

Monday, October 10, 2011

A Request Regarding Byron Case

Byron's application to Governor Jay Nixon for an absolute pardon is here.

Byron's accompanying personal letter to Governor Jay Nixon is here.

My amicus letter to Governor Jay Nixon in support of Byron's application begins here.

A site opposing Byron's release is here. That site has links to the trial transcripts and other case documents I used in my book The Skeptical Juror and the Trial of Byron Case.

If after reviewing the evidence, you believe Byron Case is factually innocent of murdering Anastasia Witbolsfeugen, I request that you join the hundreds of others who have signed Byron's online petition to Governor Jay Nixon requesting his release.

Thank you.

Sunday, October 9, 2011

Seeking an Absolute Pardon for Byron Case: Part 3

This is the third and final post in which I present the Amicus letter I sent to Missouri Governor Jay Nixon in support of an absolute pardon for Byron Case. In Part 1, I provided an overview of the crime. In Part 2, I discussed how time-of-death considerations based on witness testimony exclude Bryon Case as the person who murdered Anastasia Witbolsfeugen. In this post, I will discuss how the postmortem medical considerations prove Byron Case to be factually innocent and wrongfully incarcerated.

Time-of-Death as per Skin Temperature
The field investigator for the Medical Examiner's office arrived at Anastasia's murder scene at 5:05 AM. Had he troubled himself to measure the body's core temperature, he would have found her core temperature to be around 92 oF if she had died near midnight, and around 81 oF if she had died near the end of nautical twilight. In other words, we wouldn't be discussing this issue today.

Unfortunately, no one at any point measured Anastasia's body temperature. One of the best established time-of-death estimates (for recently deceased bodies) was thereby lost to the State forever. The only body temperature evidence preserved was an observation made by the diligent Deputy Epperson. From his report, in which he refers to himself as "the R/D", I offer the following:
The R/D observed the victims skin to be bluish gray and cool to the touch, and the victims eyes to be open wide.
In one sentence, Deputy Epperson managed to preserve three time-of-death markers, if only crudely. I'll discuss the skin temperature marker in this subsection and discuss the other markers later. 

Skin temperature is not generally used as a time-of-death marker, though it could be. As would be expected, actual skin temperature measurements of cadavers in controlled environments show that the exposed skin temperature drops far more rapidly than does the body's core temperature. The outside of a warm object cools down much faster than the inside.

Below I provide one set of measured post-mortem body temperatures. In the case presented, the person died of natural causes in a hospital setting. Core and forehead temperature measurements began at 3 hours postmortem and continued until 20 hours postmortem. For the first 3.5 hours, the body was left at room temperature, after which time it was moved to colder conditions, presumably the morgue. From the core temperature curve, it appears as if the person's core temperature was approximately 95 degF shortly before death. The skin temperature would have been slightly lower at that point.

What is important to our understanding of Anastasia's time-of-death is that the exposed skin temperature dropped rapidly after death. In the sample above, the skin temperature dropped by approximately 12 degrees after three and a half hours, even though the body had been kept in warm conditions for most of that time. After eight hours, the skin temperature dropped by approximately 25 degrees. 

Anastasia's skin temperature would have dropped more rapidly than in the example above, since the ambient air temperature in Independence on that day was near 52 degF from 7 PM onwards. Had Anastasia died near midnight, her exposed skin temperature would been at least 12 degrees cooler than normal. Had she died near the end of nautical twilight, her skin temperature would have been at least 25 degrees colder than usual.

Deputy Epperson did not measure her skin temperature. He made only a subjective assessment. He described her skin temperature as "cool." He did not describe her skin temperature as "cold."

Humans are actually pretty good at detecting, by touch alone, abnormal skin temperatures. If a child has a fever with a temperature only 6 degrees above normal, a parent who touches the child's forehead is apt to describe the child as "burning up." If a friend touches the skin of a person who has been exposed to the cold outside air for any length of time, the friend is apt to describe the person as "freezing."

The argument in Anastasia's case is simple, and while not compelling, it is mildly persuasive. Had Anastasia been killed before the end of nautical twilight, her body would have been exposed to 52 degree air for more than 8.5 hours by the time Deputy Epperson discovered it. Her skin temperature would have by then dropped well within 10 degrees of the ambient temperature. It's unlikely that anyone who touched the skin would describe it as "cool."

Given that Deputy Epperson described Anastasia's skin as "cool", and given the subjective nature of that observation, Anastasia's skin temperature at the time of her discovery places her time of death more likely near midnight than near sunset.

Time-of-Death as per Skin Coloration
When the heart ceases to function, the blood begins to slowly flow from the uppermost to the lowermost portions of the body. The earliest manifestation of this phenomenon is pallor mortis, from the Latin for paleness after death. Soon after death, the uppermost portions of light-skinned individuals, such as Anastasia, will become pale. The onset of pallor mortis is so quick that pallor mortis is generally not useful as a time-of-death indicator.

A later manifestation of gravitational blood settling is livor mortis, from the Latin for blueness of death. As the blood pools at the lowermost portions of the body, those portions turn dark blue or purple. Nominally, livor mortis will become noticeable 2 to 4 hours after death. It will become fully fixed sometime after 8 hours postmortem. Livor mortis is deemed to be fixed when the skin will not blanch in response to a finger press.

Anastasia laid on her back from the time she was killed at least until the time she was transported from the scene. It's likely she remained on her back even after transport. During that time, the front of her body (including her face) tended to become more pale, while the back of her body tended to become dark blue or purple.

When Deputy Epperson discovered her body at 3:44 AM, he made an interesting observation about her skin color. "The R/D observed the victims skin to be bluish gray ..." The fact that Anastasia's skin was not by then pale suggests that she was killed not long before she was discovered.

The investigator from the medical examiner's office arrived at 5:05 AM. He allowed the body to be transported at 6:15 AM. In his astoundingly brief report, he addressed the state of Anastasia's livor mortis only to note he did not check it. "The body is fully dressed and post mortem lividity is not assessable." Once again, had he checked the state of Anastasia's livor mortis and had it not yet been noticeable, we would not be discussing the issue today.

Anastasia's autopsy began at 9:30 AM. Dr. Thomas Young assessed the state of her livor mortis thus: "Livor mortis is faint and posterior, mostly in the buttocks and legs. Livor mortis is mostly fixed but focally blanching." Even 9.5 hours after midnight, 14 hours after the end of nautical twilight, Anastasia's livor mortis was not fully fixed.

Anastasia's post mortem skin coloring places her time of death more likely near midnight than near sunset.

Time-of-Death as per Rigor Mortis
The term rigor mortis is from the Latin for stiffness of death. After death, the muscles begin to stiffen. The stiffness becomes noticeable first in the smallest muscles and last in the largest muscles. Because of the muscular organization of the human body, rigor mortis tends to proceed from head to toe. The eyelids and jaws stiffen first, then the neck, arms, torso, and finally the legs.

The ME investigator recorded the state of Anastasia's rigor as "2+". The investigator has since died, and no one else involved in the case seems to know the precise meaning of "2+". Dr. Young himself explained, in an email exchange, that he interpreted "2+" to mean that her rigor was "moderately formed and not fully developed". Dr. Chase Blanchard, who testified in place of Dr. Young, offered the following thoughts during her deposition:
That means that's very subjective. I don't even know what the top number is that he is referring to, whether it's three plus or ten plus. To me that means there is some rigor mortis that he can appreciate.
Both doctors make clear that Anastasia's rigor was not complete when the ME examined her soon after 5:05 AM. Anastasia's rigor was fixed when Dr. Young began the autopsy at 9:30 AM.

I find only one study documenting the onset timing of rigor mortis. Amazingly, that study dates back to 1872. Dr. P. F. Niderkorn then made hourly observations of 114 bodies from their time-of-death to the time when rigor was fully developed. I repeat Niderkorn's data below in both tabular and plotted form.
2 hours since death: 2 cases in which rigor was complete
3 hours: 14 cases
4 hours: 31
5 hours: 14
6 hours: 20
7 hours: 11
8 hours: 7
9 hours: 4
10 hours: 7
11 hours: 1
12 hours: 1 case
13 hours since death: 2 cases in which rigor was complete

Niderkorn's data indicate that it is highly unlikely Anastasia was killed before the end of nautical twilight the previous day. That would be 9.5 hours prior to the beginning of the ME investigator's on-scene examination. Referring to the curve fit of Niderkorn's data, rigor would have by then been fully fixed in 94% of all cases in which rigor was fully fixed.

In other words, even if Anastasia's rigor had been more advanced than it was, there would be only a 6% chance she died prior to the end of nautical twilight, based on rigor mortis calculations alone. On the other hand, even if Anastasia's rigor had been more advanced than it was, there would still be more than a 55% chance that she died sometime after midnight.

The state of Anastasia's rigor indicates that Anastasia probably died close to midnight.

Time-of-Death as per Corneal Clarity
Anastasia died with her eyes open and her corneas clear. Together, those two observations establish that she was probably killed near midnight. Allow me to explain.

Recall that Anastasia's eyes were open when her body was discovered by Deputy Epperson.
The R/D observed the victims skin to be bluish gray and cool to the touch, and the victims eyes to be open wide.
Her corneas must have been clear when Epperson discovered her because her corneas were clear still when examined by Dr. Young during her autopsy.
The body was brought to the morgue fully clothed and in a white tarp. ... Rigor mortis is well developed and generalized. Livor mortis is mostly fixed, but focally blanching. The corneas are clear.
After death, the eyes begin to dry and to undergo autolysis. Autolysis is from the Greek for self splitting. The word refers to the process of an organ consuming itself via its own enzymes.


Within minutes, these natural assaults on the eyes cause a thin film to appear over the cornea. Hours or days later, the corneas will become cloudy, then opaque. The rate at which these changes occur depends on multiple factors, including the position of the eyelids. If the eyes remain open after death, the corneas cloud quite rapidly, within a few hours. If the eyes are closed postmortem, then the corneas may remain clear for several days.

Multiple authoritative sources claim that corneas cloud over within 3 hours of death if the eyes remain open, and within 24 hours of death if the eyes are closed. One of the more prominent authorities on the matter is "renowned pathologist" Dr. Michael Baden. I presented just above two clips from one of his presentations.

From Forensic Pathology of Trauma: Common Problems for the Pathologist by Michael J. Shkrum and David A. Ramsey, we find:
Another eye change is corneal clouding. It occurs 2 to 3 h after death, if the eyes are open, and by 24 h if they are shut.
From Spitz and Fisher’s Medicolegal Investigation of Death: Guidelines for the Application of Pathology to Crime Investigation by Werner U. Spitz, we find:
When the eyes remain open, a thin film may be observed within minutes on the corneal surface, and within two or three hours corneal cloudiness develops. If the eyes are closed, the appearance of the corneal film may be delayed by hours and that of corneal cloudiness by twenty-four hours or longer.
I have continued researching this subject since completing my book on Byron's case, and have since discovered two studies that provide additional insight.
  • Wroblewski and Ellis wrote of 300 postmortem eye examinations in their 1970 work "Eye Changes after Death." They reported that only 74% of the corneas they examined were cloudy after 36 hours. They noted also that some corneas clouded over within one half-hour postmortem. Also, 48% of the corneas they examined between 1.5 and 2 hours of death were cloudy. Finally, they reported that onset of corneal cloudiness could be delayed by keeping the eyes artificially moist.
  • BK Prasad wrote of 150 postmortem eye examinations in his 2003 work "Post-mortem Ocular Changes." He reported that all examinations took place more than 4 hours postmortem, and that in only 10 cases were the corneas not cloudy.
In neither study did the authors distinguish between eyes-open and eyes-closed subjects.

The weight of the scientific evidence is that corneas cloud over quickly if the eyes remain open after death, and cloud over much more slowly if the eyes are closed (or presumably otherwise protected). In Anastasia's case, it seems as if her corneas were clear upon discovery because she had been killed near or after midnight, and her corneas were clear at autopsy because her body had been wrapped in a tarp.

If Anastasia had been killed before the end of nautical twilight, she would have had to lie there for more than eight hours with her eyes "open wide" before being discovered. It is exceptionally unlikely, in that case, that her corneas would have been clear upon discovery. Recall that Wroblewski and Ellis found that 48% of the corneas they examined within only 1.5 and 2 hours of death were already cloudy. Some of those eyes may have been closed; most were probably open. Recall also that Prasad found cloudy corneas in 93% of his examinations, since all of his subjects had been dead for 4 hours or more.

Anastasia's open eyes and clear corneas therefore establish her time of death as probably near midnight.

Time-of-Death as per the Date of Death
The investigator for the ME's office filled out report form and narrative describing his on-scene examination of Anastasia's body. In that form, he entered "10/23/97" as the Date of Injury. That would be the same day that Deputy Epperson discovered the body. Quite simply, the ME investigator filed a formal report stating that Anastasia WitbolsFeugen was injured on the same day she was discovered. That would be after midnight.

There is no reasonable possibility that when the ME investigator entered 10/23/97 in the Date of Injury field, he was merely describing the day the body was discovered. There was a separate field for the discovery date. On the form, it was called the Incident Date. In the field for Incident Date, the ME investigator entered 10/23/97. In the field for Incident Time, the investigator entered 0344. The incident date and time correspond perfectly with the discovery date and time reported by Deputy Epperson.

Nor is there any reasonable possibility that when he entered that date, he was merely describing the date of his investigation. There was a separate field for the date of his investigation. In the form, it is called the Report Date. In that Report Date field, he entered "10/23/1997." In the Report Time field, he entered 0410. The Report Date and Report Time fields apparently correspond with when he was notified of a body to be investigated.

Nor is there any reasonable possibility that the ME investigator was required to write a specific date in that Date of Injury field. Assuming he was not confident about the date of Anastasia's injury, he could have simply left the field blank. Alternatively, he could have typed "UNKN." He did, for example, type "UNKN" in the Time of Injury field.

The standardized Medical Examiner Investigator Report attests that the investigator is qualified to estimate the date and time of injury. It does so by providing the investigator fields for entering that information.

The ME investigator who examined Anastasia's body evaluated the state of her rigor. He must therefore have touched her skin and made at least an unconscious assessment of its temperature. He must have also seen the color of her exposed skin. He must have seen the clarity of her eyes.

We cannot ask him now what he felt or what he saw, because he has since died. We can only go by the information he placed on his official Medical Examiner Investigator Report. In that report, he willfully entered 10/23/97 as the Date of Injury. He chose to enter UNKN for the Time of Injury. We are left with the inescapable conclusion that he believed, based on his training and his examination of Anastasia's body, that she was shot sometime after midnight, but he was unable or unwilling to specify the time more precisely.

The Medical Examiner Investigator Report establishes absolutely that Anastasia WitbolsFeugen was killed near or after midnight.

Similarly, Anastasia's Certificate of Death (signed by Dr. Young) lists her Date of Death as OCTOBER 23, 1997. Once again, that is the same day that Deputy Epperson discovered her body. Once again, that is after midnight.

It is possible, of course, that the Certificate of Death needed a specific Date of Death, even if that date could only be approximated. It is not reasonable, however, that the same certificate would demand a date in the Date of Injury field if such a date was not known. In the Time of Injury field, for example, Dr. Young entered UNKN.

In the Date of Injury field, however, Dr. Young entered 10-23-97.

Summary and Prayer for Relief
Time-of-Death considerations establish with certainty that Anastasia was killed close to midnight, and they do so to the detriment of Kelly Moffett's veracity and her claim to the contrary.


Byron Case clearly did not murder Anastasia WitbolsFuegen. Someone killed her near midnight and Byron was then at home. His mother places him there and Kelly Moffett herself places him there. She called him slightly before midnight and they spoke about the events of the day, fretting about Anastasia. Kelly does not dispute that Byron was then at home. No one does.

Four eye-witnesses saw Anastasia alive well after dusk, well after the time of day when Kelly claimed she witnessed Anastasia being murdered.

One eye-witness actually saw Anastasia step from the car and walk towards home, well after dusk, just as Byron has always claimed, just as Kelly claimed until Byron left her for St. Louis.

One ear-witness, Anastasia's own father, places her time-of-death absolutely near midnight. Don Rand did not hear any such gunshot, though he was only half the distance to the crime scene. Don Rand did not hear the shot because he went home at 10 PM.

Anastasia's wallet somehow made it home, well after dusk.

The tampon provided by Dawn Wright (well after dusk) was not found with Anastasia's body. Since there was absolutely no opportunity in Kelly's post-rejection story for Anastasia to replace the tampon with a sanitary napkin, Kelly's post-rejection story must be false.

Four medical time-of-death markers place Anastasia's death near midnight. Her skin temperature and coloration, the incomplete stiffness or her muscles, and the clarity of her corneas all testify to Byron's innocence.

The Medical Examiner Investigator Report formally specifies the date of Anastasia's injury as the 23rd, sometime after midnight, well past dusk the previous day. The ME investigator was not obliged to enter that date.

Anastasia's Death Certificate formally specifies the date of her injury as the 23rd, sometime after midnight, sometime well past dusk the pervious day. Dr. Young was not obliged to enter any date in that field.

Had the jury been presented the time-of-death evidence I now present to you, we would not be corresponding today. I say this with confidence based on my four experiences as a juror.

I have served as a juror for a drive-by shooting, an assault and battery, a multi-victim child molestation case, and a first-degree murder. I have voted both guilty and not guilty. I have favored counts more serious than preferred by my fellow jurors, and have argued for counts less serious than preferred by the others.

I am confident that no jury of twelve citizens would have found Byron Case guilty of murder had they been presented the time-of-death evidence I have summarized herein. One of the many tragedies in this case is that the jury was left completely uniformed about the time of death issues.

The jury heard not a whit from Dr. Young, or from the ME investigator, or Anastasia's father, or Dairy Queen owner Sulaman Saulat. None of those four were called to testify.

The jury heard absolutely nothing about the medical time-of-death markers placing Anastasia's death near or after midnight. As I recall from the trial transcripts, the words time of death were never even mentioned contiguously and in that order.

The jury did hear from Wanda Wright and from Glen Colliver. The testimony Ms. Wright and Mr. Colliver provided was, however, not inconsistent with the testimony Kelly provided, unless the jurors realized the subtle time of day discrepancies. Byron's court-appointed counsel did not himself recognize those discrepancies, and did not argue them to the jury.

The jury did hear from Don Rand. They heard he saw the woman only from a distance and only while it was dark. They chose not to believe him. They chose instead to believe the embittered young woman who said she witnessed the murder up close, when it was still light enough to see.

Governor Nixon, I pray that after careful consideration of Byron's petition and this letter, you will grant him an absolute pardon. If it would be helpful, I would be pleased to meet with you and discuss any matter associated with this case.


[Signed and addressed]

Friday, October 7, 2011

The Lingering Case of Preston Hughes III

While working on a not-yet-ready-for-primetime project, I was researching the performance of the notoriously bad Houston Crime Lab. I'm having trouble making progress on my project because I keep following links related to the lab's horrific work. The last one I followed prompted me to write this post in which I will shamelessly ask for your assistance.

The case is that of Preston Hughes III. He was convicted in 1988 for the stabbing deaths of 15-year-old Shandra Charles and her 3-year-old cousin Marcell Taylor. He has been on death row ever since. For the math impaired among you, that's 23 years.

His conviction has been reversed once and then re-reversed. He does not yet have an execution date.

Here's the issue that drew my attention to the case. The crime lab conducted the blood test on the alleged murder weapon for the first time during the trial, right in front of the jury.
The knife seized from Mr. Hughes' apartment which was introduced, by the prosecutor, and admitted into evidence as the alleged murder weapon was tested in the courtroom, on Tuesday May 02, 1989, by a Forensic Expert who performed a chemical analysis on it.  The results of the chemical analysis revealed the knife tested negative for human blood, positive for animal blood. 
Beyond what I've written here, I know nothing of the case. I'm not even claiming that I have the information in this post correct.

It is my hope that one of you will volunteer to look into this case, summarize the evidence for both prosecution and defense, and analyze the case as you have been doing recently with other cases I have been posting. To ease your discomfort, I will write the final post if you wish, or I will write it with you, or I will simply stand aside and allow you to write it all yourself.

This one feels bad to me. I don't want to let it be until Preston Hughes III is within days of execution, but I simply cannot get to this case soon.

Any takers?

ADDENDUM (21 July 2012)
Since writing this post, I have gained access to the testimony of the forensic examiner who tested the knife while on the witness stand (in the absence of jurors) then testified to his findings (in the presence of jurors). According to the transcripts I read, he claimed to have detected blood, but could not determine whether or not the blood was human blood. He did not testify that the blood was animal blood.

I have since seen also that Preston Hughes claims the transcripts have been altered. While I'm quite skeptical of much of what the authorities claim, I have no reason to doubt the integrity of the trial transcripts.

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Thursday, October 6, 2011

The Impending Execution of Christopher Thomas Johnson: Open Deliberation

Christopher Thomas Johnson sits on death row awaiting execution by the people of Alabama on 20 October 2011. I suspect there is effectively zero chance the execution will be stayed. Before opposing this execution or standing mute, I will allow you to deliberate the case via comments to this post.

I present below the State's case for guilt as summarized in the appellate decision Johnson v. State of Alabama (2009). As usual, I have removed the many legal references. In some cases below, the ellipses represent substantial redactions of the appellate decision.
Christopher Thomas Johnson appeals his guilty-plea conviction for capital murder [for] murder of an individual under the age of 14, and his sentence of death. Johnson's appeal is before this court in an unusual procedural posture that must be explained before this court turns to the merits of his appeal.

On October 28, 2005, Johnson was indicted by an Escambia County grand jury on the charge of capital murder for the death of his six-month-old son, Elias Ocean Johnson. J. Todd Sterns and Charles E. Johns were appointed to represent Johnson. Johnson's trial began on December 4, 2006. After both sides had rested their cases and during the jury charge conference, Johnson invoked his right to represent himself and moved the circuit court to allow him to reopen his case and to testify. The circuit court conducted a thorough colloquy ... to determine whether Johnson knew the consequences and dangers of representing himself and to ensure that Johnson's decision was knowing and voluntary. After determining that Johnson's decision to represent himself was knowing and voluntary, the circuit court granted Johnson's motion to represent himself and ordered counsel to remain as standby counsel.

The circuit court then allowed Johnson to reopen his case and to testify on his own behalf. Johnson testified that he intentionally murdered his six-month-old son because he hated his wife. After testifying, Johnson moved the circuit court to allow him to change his plea from not guilty to guilty. The circuit court then engaged Johnson in a thorough colloquy ... during which the circuit court informed Johnson of the rights he would be waiving by pleading guilty and questioned Johnson to ensure that his decision was knowing and voluntary. After determining that Johnson's decision was knowing and voluntary and not the result of any coercion, threats, or promises, the circuit court allowed Johnson to plead guilty to capital murder. The cause was then submitted to the jury ... and the jury found Johnson guilty of capital murder.

Following the jury's verdict, the penalty phase of Johnson's trial began. The State submitted that the aggravating circumstance of the offense (Elias's murder) was especially heinous, atrocious, or cruel, ... and adopted the evidence presented during the guilt phase. Johnson, representing himself, presented no evidence in mitigation and urged the jury to recommend a sentence of death. After the circuit court properly instructed the jury regarding the penalty-phase process of weighing the aggravating circumstances and the mitigating circumstances, the jury unanimously recommended that Johnson be sentenced to death. The circuit court accepted the jury's recommendation and sentenced Johnson to death.

After being sentenced to death, Johnson invoked his state-law right to represent himself on appeal, and he refused to file a notice of appeal. ... On February 21, 2007, the circuit court entered an order of appeal ... and Johnson's case was appealed to this court for automatic review. ...

Although Johnson has chosen not to file an appellate brief on his behalf, his decision not to do so does not end this court's review. Because Johnson was convicted of a capital crime and was sentenced to death, his appeal is automatic, and this court must review the propriety of his decision to waive his right to present a brief on appeal, the sufficiency of the evidence to sustain his conviction, and the propriety of his sentence of death.

First, this court must review the circuit court's finding that Johnson's decision to represent himself on appeal and his waiver of appellate counsel was knowing and voluntary. ... This court must also review whether Johnson's decision to forgo filing a brief on appeal was knowing and voluntary. ...

... Based on the extensive colloquy between the circuit court and Johnson, this court is convinced that Johnson "not only knowingly, intelligently, and voluntarily, waived his right to counsel, but also his right to present issues to this court as it reviews his conviction and his sentence of death." This court is further convinced that when Johnson "decided to forgo presentation of any issues in the review of his conviction and death sentence he could appreciate his position and he knew that his life was at stake." Therefore, there was no error in allowing Johnson to represent himself on appeal.

Next, this court must review the sufficiency of the State's evidence to sustain Johnson's guilty-plea conviction. In Alabama, "[a] defendant who is indicted for a capital offense may plead guilty to it, but the state must in any event prove the defendant's guilt of the capital offense beyond a reasonable doubt to a jury." ...
At trial, the State established that Johnson's wife, Dana, gave birth to their son, Elias Ocean Johnson, on August 22, 2004. In February 2005, the Johnsons lived in a duplex at 103 Horner Street in Atmore, Alabama.

On February 19, 2005, Suzanne Mims and Jason Mims, along with their infant, Sophie, arrived at the Johnsons' duplex around 8:30 p.m. to play board games. While playing board games, the Johnsons and the Mims drank alcoholic beverages. At approximately 1:00 a.m., the Mims

At around 9:00 a.m., Dana woke up and found Johnson and Elias on the couch in the duplex. Dana stated that Elias had bruises on him and that he appeared to be dead. At that point, Dana ran over to feel Elias. Dana testified that Elias felt cool so she tried to check his pulse; however, she could not find one. Worried about Elias, Dana grabbed the telephone and called emergency 911.

Tim Grabill, a paramedic with Atmore Ambulance Service, received a call to go to the Johnsons' duplex. When Grabill and his partner, Jareth Heibert, arrived at the duplex, Johnson was holding Elias. Grabill observed that Elias was "very pale, limp and his extremities were cool to the touch." Based on Elias's appearance, Heibert carried him to the ambulance where the paramedics checked his vital signs. At that point, Elias was not breathing and had no heartbeat. Although Grabill believed that Elias was already dead, he performed CPR and rushed Elias to the emergency room at Atmore Hospital. When they arrived at the hospital, Grabill carried Elias into the emergency room, still performing CPR, placed him on a trauma bed, and turned him over to Dr. Steven Michael Sharp.

Dr. Sharp testified that Elias appeared to be dead when he arrived at the hospital. Dr. Sharp described several injuries he observed on Elias's body. Specifically, Dr. Sharp noticed several bruises on Elias's face, a bruise on the bridge of Elias's nose, and ruptured blood vessels around Elias's eyes and chin. Dr. Sharp also noticed a bite mark on one of Elias's arms.

Although Elias appeared to be dead, the hospital staff attempted to resuscitate him. Because Elias was unresponsive, Dr. Sharp cleared his airway and placed an endotracheal tube in his throat so that medical personnel "could breath for the child." While attempting to place the endotracheal tube, Dr. Sharp noticed blood in Elias's mouth. Dr. Sharp also testified that Elias had blood in his stomach. After all attempts to resuscitate Elias failed, he was pronounced dead.

Investigator Chuck Brooks and Police Chief Jason Dean, with the Atmore Police Department, went to Atmore Hospital to investigate the circumstances of Elias's death. One of the law-enforcement officers asked Johnson and Dana to come to the police station and give statements relating to the death of their child. Dana rode to the police station with a member of her church, and Johnson rode to the police station with Chief Dean. During the ride to the police station, Johnson spontaneously stated that he had something to do with Elias's death.

Once at the police station, Johnson gave a statement to Investigator Brooks and Irene Johnson, a social worker with the Alabama Department of Human Resources. After being informed of and waiving his Miranda rights, Johnson indicated that Elias had been crying so Johnson laid on top of him to try to quiet the child. When Elias did not stop crying, Johnson stuck his fingers in the child's mouth and hit him. Johnson stated that "[l]ast night was the hardest that [he] ever hit [Elias and he was] pretty sure [Elias's death was his] fault." Johnson also stated that after the event that night, he did not think that he had seriously injured Elias.

Dr. Kathleen Entice, a medical examiner who was formerly with the Alabama Department of Forensic Sciences, performed the autopsy on Elias and testified that it would be reasonable to estimate that Elias had suffered 85 separate injuries, including a bite mark on his arm. Dr. Entice testified that Elias had multiple bruises on his face and head. She stated that both of Elias's ears were swollen and bruised which was consistent with a "boxing blow" and squeezing. Dr. Entice testified that Elias's lower lip was swollen and bloody from a blunt-force injury. Dr. Entice explained that Elias had three impact injuries to his forehead. She informed the jury that Elias's ethmoid bone, which is in the sinuses, was broken and that Elias's sinuses were full of blood. Dr. Entice testified that Elias had deep contusions on his head and that his brain had hemorrhaged as a result of blunt-force trauma. Dr. Entice also testified that Elias had hemorrhages in both eyes and had injuries to his inner lips and nose that indicated that he had been smothered by the "forceful covering, sealing off [of] his mouth and nose." According to Dr. Entice, Elias's injuries had been inflicted within 24 hours of his death. Dr. Entice finally testified that in her opinion, Elias died as a result of blunt-force trauma and smothering.

In addition to the State's evidence, Johnson testified that he intentionally murdered his son because he hated his wife. Johnson explained that he would have left his wife long before the murder if it had not been for Elias. According to Johnson, he did not want "to worry about [his wife's] threats of putting [him] in jail for alimony or child support . . . so [he] intentionally inflicted wounds on [Elias] that caused [Elias's] life [to expire]." Johnson stated that his final words to Elias were: "You go see Jesus." Thereafter, Johnson pleaded guilty.

The State's evidence, coupled with Johnson's guilty-plea and in-court confession, overwhelmingly established that Johnson intentionally murdered a person under the age of 14 ... Because the State met its burden of proof, Johnson is not entitled to any relief. ...

Accordingly, Johnson's conviction and his sentence of death are affirmed.

I find no one arguing Johnson is innocent. I did however find this poorly-sourced article providing some additional insight into Johnson's courtroom behavior.
An Atmore man convicted last year in the 2005 murder of his infant son begged a judge on Wednesday to sentence him to death. The judge complied.
Authorities said they had to force defendant Christopher Thomas Johnson to take a shower before they chained his feet and hands, sat him in a wheelchair and rolled him into an Escambia County courtroom for the sentencing hearing.
"The look on my wife's face at the trial and the last thing she said to me was enough: 'I hope you die soon,'" Johnson said at the start of Wednesday's hearing. "The family agrees. I deserve death, and I really don't know what's to debate here."
Johnson testified that there were no mitigating circumstances, and denied a report that he was sexually abused as a child.
In December 2006, an Escambia County jury convicted Johnson, 34, of killing his 6-month-old son, Elias Ocean Johnson, when the baby would not stop crying on Feb. 20, 2005. According to testimony, Johnson lay on top of the baby, jammed his fingers down the baby's throat and beat him to death.
Forensic tests presented during the trial showed 85 separate injuries to the child.
Johnson said during trial that he didn't want the baby to wake his wife, but had also testified that he wanted out of his marriage, hated his wife and killing the baby was the best way to hurt his wife and avoid having to pay child support. He asked jurors to recommend a sentence of death, and they granted that request.
Johnson entered the courtroom with wet hair, unshaven and shackled to a wheelchair, saying loudly he needed to speak with a federal agent about his treatment in the Escambia County Jail. Johnson, who fired his court-appointed attorneys at the close of his 2006 trial and chose to represent himself, complained about the forced shower.
Escambia County Sheriff Grover Smith said in an interview that Johnson failed to comply with correctional officers, refused to take a shower and sat on the top bunk in his cell, beating his head against a wall.
When officers entered to remove him from the cell, he resisted and a Taser stun gun was used on him, Smith said. Officers videotaped their treatment of Johnson after that incident, Smith said.
Officers believed Johnson would become disorderly in court and shackled him to a wheelchair for the trip from his cell to the hearing, Smith said. Johnson chose to remain in the chair once he arrived at court, the sheriff said.
Once in the courtroom, Johnson leaned toward an attorney, Wade Hartley, who was appointed to give him any legal advice if needed, and said: "This has got to be your worst case this year."
Johnson complained to Escambia County Circuit Judge Bradley Byrne that he had not been given all of a pre-sentencing report, saying that a psychological report was missing. Byrne said the report was one completed by a witness for the defense, and Johnson had the whole document.
Prosecutors said attempts to send notice of the hearing to the child's mother, Johnson's 25-year-old wife, Dana Johnson, were unsuccessful.
Byrne read the list of factors the law requires judges to consider in passing sentence, finding there was an aggravating circumstance in that the killing was particularly heinous and cruel. Byrne said he found possible reason to show mercy: a report that Johnson had been the victim of sexual abuse as a child. Johnson responded that the claims of sexual abuse were not true.
A woman identifying herself as Johnson's mother interrupted the hearing, and asked to be allowed to testify about lies Johnson was telling.
Byrne granted her request, allowing her sworn testimony. Eylene Pack said Johnson was her son, and he was sexually abused by her brother.
Authorities attempted to confirm her story by getting court records from Mobile where the brother was charged, but found only that the man had been charged with sexual abuse and sodomy in the 1980s. The charges were later dismissed, and no alleged victim was identified.
Though reports indicated Johnson had abused drugs, he used the hearing to deny doing so.
Byrne said Johnson was "ill-equipped to be a parent" and made "terrible decisions" on the night of the child's death. The judge called Johnson's firing of his attorneys and subsequent inconsistent statements manipulative.
Johnson then accused prosecutors, investigators and defense attorneys of being manipulative as well, and wiped his nose on a copy of his psychological report.
Byrne said he had agonized over his decision in the case. "If anyone got up in court and testified as you did, it would be an easy call for this court," Byrne said. "As much as I've wrestled with it, you've manufactured this situation, dismissing your attorneys. But it is not my job to go into your mind and consider your motives for doing so. ... I've got to accept the evidence presented, and the testimony presented, and the appropriate sentence is the death penalty."
District Attorney Steve Billy said the case had been particularly difficult to prosecute and had taken an emotional toll on everyone involved. "I'm personally glad it's over," Billy said. "It has been a long, difficult case, but the punishment is appropriate for the crime."
Pack said she was not satisfied. "Since it can be proved that he lied about (the sexual abuse), I think he lied throughout the whole trial," Pack said.
Ladies and gentlemen of the skeptical jury, you may now deliberate the case.