The Impending Wrongful Execution of Eric King: 2

Eric King sits on death row. The people of Arizona plan to execute him on 29 March. Though I stand mute for most executions, I fervently oppose this one. I believe Eric King may in fact be innocent of the crime for which he is to die.

This is the second part of a five-part series. Prior to reading this Part 2 you should first read Part 1. You can do so here. A link at the end of Part 1 will bring you back to this Part 2.

Overview

In Part 1, I attempted to provide all the significant evidence heard by the jury. I also attempted to limit the discussion only to information heard by the jury. I then asked you to consider how you would have voted had you been on the jury. I asked you also to consider why you would have voted such. I promised to reveal my vote and my reasons in this Part 2.

My vote must be of no surprise to any of you, given what I have written so far. I would have voted not guilty. Hopefully, my reasons will also come as no surprise.

The evidence most damning to Eric King came from his alleged accomplice Michael Jones and Jones' girlfriend, Nekita Hill. The primary exculpatory evidence was that related to Eric King's height. I will discuss each in turn.

Richard Jones

As a juror, I am suspicious of any testimony from a snitch or an alleged accomplice. My expectation is that the testimony has been purchased. The currency for such a transaction is freedom rather than imprisonment. In some cases, such as the current case, the currency may be life itself. The payment is made in exchange for testimony in accord with the State's wishes.

It is an unseemly business at best. If a defense attorney were to secure a prisoner's testimony for cold hard cash, the State would suffer an apoplectic fit, the jury would disbelieve the tainted testimony, and the defense attorney would face disbarment and criminal prosecution.

As a juror, you are apt to be told, usually during the State's closing argument, that the State must, on occasion, reluctantly rely on the testimony of disreputable characters. That may be true. However, if the State asks me to relieve them of their burden of proof because their witness is a scoundrel, I will decline. I will instead weigh each witness's testimony against all the physical evidence and against the testimonial evidence of all other witnesses. And if the witness be a snitch or an alleged accomplice, I will consider the likelihood that the testimony has been purchased in exchange for testimony favorable to the State.

Not only would I expect that Jones' testimony had been purchased, I would have taken note of the Sergeant Switzer's testimony that Jones' initially claimed he did not know the person who had been with him, the person who ran away when ordered to "Halt!" by the sergeant.

I would also take note of Jones' frequent and convenient bouts of forgetfulness followed by his  bouts of recollection. I take additional note of  his alleged drunkenness against the sobriety described by Switzer and Saldate.

It seems clear that Jones lied about knowing King when Jones was in danger of arrest, and equally clear than Jones lied about not remembering when he wished not to testify. But we need not rely on ancillary testimony to suspect him of lying. Consider, if you will, his testimony about the crime itself.

Jones claims that went to the store with the shooter (King or another) to buy wine, then claims he waited outside while the shooter went inside. That's a bit unusual but not damning. Jones then claims he was surprised when the shooter shot the employees. He not only ran from the scene in fear of arrest, he ran from the scene in the company of the shooter. We can assume he then waited for the shooter as the shooter returned to wipe the guard's holster. Jones then walked from the crime scene in the company of the shooter.

Jones made no effort to assist those who had, to his surprise, been shot. He made no effort to inform the police or other emergency personal. He made no effort to separate himself from the person who had suddenly, and to his alleged surprise, shot two innocent employees. He even waited patiently as the shooter returned to clean the crime scene. Then he lied to the police about even knowing the person he had been walking with.

Jones' testimony, though reluctant, seems self-serving. He was merely an innocent bystander, surprised by the events of the evening. He remained in the company of the actual shooter after the fact, not because they were fleeing together, but because ... because ... well, I have yet to hear an explanation for that one.

The self-serving, almost-certainly-purchased testimony of a possible participant in the murders does not, in my opinion as a skeptical juror, advance the State's case very far.

Nekita Hill

While Jones' testimony was questionable, that of his girlfriend was absolutely incredible, in the sense of  absolutely not credible.

Most significant and astounding was her claim that she not only saw King throw a plastic bag into a dumpster, she saw could somehow see what was in the plastic bag, despite the opacity of  your standard plastic bag, and despite the darkness frequently occurring near midnight. She didn't apparently claim to have opened the dumpster, removed the bag and looked inside. She apparently claimed instead to have seen the gun, the sweater, and the pattern on the bundled up sweater through the conveniently thin bag, in the dark of night.

Even King's presence in that area at that time was extremely unlikely. Assuming King was the shooter, he ran from the crime scene, returned to wipe the guard's holster clean, returned to where Michael Jones waited for him, walked from the scene with Jones until spotted by the police, then fled south. Hill claims she then coincidentally walked the same path or similar path soon thereafter, when helicopters were circling overhead and presumably while police cars were racing about with sirens blaring.

Are we to believe that under those conditions, with police cars racing to and from the scene, with helicopters circling above, that King decided to return to the area of the crime so that he could dispose of the evidence, closer to the scene, where it would be more easily found? Are we to assume that after fleeing south to escape the police, King acquired a thin plastic bag, inserted his sweater and the gun, made a U-turn, headed back north to the area of the crime, and then deposited the bag in the dumpster, just as Jones' girlfriend was walking by?

The unlikelihood of Hill's testimony is compounded by her claim that she wanted to, but could not go to the store with Jones and King. Recall that she claimed to be unable to find a babysitter. Are we to believe that she suddenly, in the time it took for King shoot two people and clean a cash register, found a sitter and arranged with her best friend to walk to her friend's house, which was coincidentally near the crime scene?

Though Hill allegedly knew that Jones and King intended to go to the store, and though she knew a crime had been committed there, and though she knew her boyfriend had been arrested for that crime, and though she had seen King dispose of the murder weapon and distinctive sweater in a dumpster, she claims it did not occur to her to contact the police until she saw a blurry, low-quality photo of the shooter three days after the crime.

Are we, as skeptical jurors, expected to accept such piffle as proof beyond a reasonable doubt?

Height

The state presented no credible evidence that Eric King was involved with the robbery and shooting at the Short Stop convenience store. Their star witnesses, Richard Jones and Nekita Hill, boyfriend and girlfriend, were both obviously reluctant to testify, to repeat what they had earlier told the police. The stories they then told the jury were far from credible, especially so in the case of Nekita Hill.

None of the other witnesses identified King as the shooter. No physical evidence tied King to the scene. The State had bupkis, and clearly failed to meet their burden of proof beyond a reasonable doubt. Though the defense had no requirement to prove the defendant innocent, I believe they may have done just that. I believe the issue of height exculpates Eric King.

To investigate the height issue, I employ below a 2-dimensional person named Sang. Sang is a reference  person provided in Google Sketchup, a three-dimensional modelling program. I used Sang previously in The Skeptical Juror and the Trial of Cory Maye. I needed to show multiple views of the Cory Maye duplex, both inside and out, so I constructed a three-dimensional model in Sketchup. I asked Sang to stand in front of the building for reference. You can see him in the image below.

Sang is described by Google as follows.

Sang is a member of the SketchUp development team. He enjoys rock climbing, pho and long walks on the beach.

For my fellow non-gastronomes, pho is a Vietnamese noodle soup. By default, Sang stands 5 feet 9 inches tall.

Frank Madden described the two men he saw as being a little over 6 feet tall. I therefore scaled Sang up to 6 feet in height, cloned him, and gave the clone a differently colored shirt. I show the unenlightening result below.

Jones and Shooter, as per Witness Madden

Sergeant Switzer confirmed Madden's observation. He described the man who fled as being slightly taller than Michael Jones. Jones was 6 feet 1 inch tall. I therefore scaled Sang to be 6 feet 1 inch tall and his clone to be 6 feet 2 inches tall. I show their comparative heights below. Again, there is nothing particularly interesting about the result.

Jones and Shooter, as per Sgt. Switzer

Eric King, however is only 5 feet 8 inches tall, according to the appellate decision. (He is listed as 5 feet 9 inches tall on his inmate record.)  I therefore scaled Sang's clone to be 5 feet 8 inches tall. Suddenly, the relative height comparison is striking.

Jones and King

Had I been in the jury room, I would have been unable to fall back on my computer to make my point. I would, however, have recruited volunteer jurors of various heights to stand side-by-side. Had the King jurors taken the trouble to do so, they would have seen exculpatory information staring them in the face. Had they weighed that straightforward evidence from the unbiased witnesses (with nothing to gain) against the unlikely testimony of the clearly biased witness (with Jones' very life at stake), I choose to believe they would have voted not guilty.

In Part 3 of the series, I will relay to you information critical to the case but kept from the jury. We'll see if it changes your thoughts on how you would have voted.

Continued in Part 3

The Impending Wrongful Execution of Eric King: 1

Eric King

This is the first in a 5 part series regarding the impending execution of Eric John King by the people of Arizona. The execution is scheduled for the 29th of this month. While I stand mute regarding most executions (since I find no chance of innocence in most cases), I fervently oppose this execution.

Around midnight on 27 December 1989, a black male, brandishing a pistol, entered the Short Stop convenience market at 48th Street and Broadway in Phoenix, Arizona. The robbery was captured on two time-lapse video cameras. The videos were of such low quality that the armed robber would be difficult to identify. The robber was, however, wearing a dark sweater with a band of light colored, diamond-shaped markings across the chest and arms.

At nearly the same time, Frank Madden was driving to the Country Kitchen restaurant, located near the Short Stop convenience market. As he drove past the Short Stop, he saw two black men walking in the parking lot. Each was a little over 6 feet tall. One of the two wore a blue or black and white sweater with "some pattern like pyramids." The other wore a "green sweatshirt."

Frank Madden continued past the Short Stop to the Country Kitchen. There he met his girlfriend in the parking lot. They discovered that the Country Kitchen restaurant was closed.

At nearly the same time, Kevin Harris and his friend David Dils were driving through the intersection of 48th Street and Broadway.

While Frank Madden was talking to his girlfriend outside the Country Kitchen restaurant, and while Kevin Harris and David Dils were passing through the intersection at 48th and Broadway, the armed robber shot the Short Stop clerk. On the security video, the clerk can be seen moving backward then falling to the floor. Though not shown on the video, the security guard was also shot. Though the clerk survived long enough place a phone call for help, both shooting victims would die.

Kevin Harris and friend David Dils heard the gunshots. Harris was looking in the direction of the Short Stop and saw two black men running away from the store. One of the men held a gun in his hand. Harris and Dils drove into a nearby parking lot, got out of the car, and approached the store.

Frank Madden and his girlfriend also heard the gunshots. Madden drove the short distance to the Short Stop, arriving before Harris and Dils. Madden exited his pickup and walked to the front of the store. He saw the security guard lying on the ground. He noticed that the guard's holster was empty. The guard was moaning. Madden saw blood on the right side of his stomach.

Madden noticed a black man, one of the two he had seen just a bit earlier (the one with the dark sweater) walking toward the store. Madden phoned 911. While Madden was calling 911, the man with the dark sweater went over to the security guard, pulled out a white cloth, wiped the guard's holster and belt, then left the scene.

Just then, Nolan Thomas, his son Derek, and Greg Hecky pulled into the Short Stop. As Nolan parked his car, Derek directed his dad's attention to the security guard lying on the ground. Nolan looked over and saw a black man with a mustache and goatee, wearing a black sweater with a white "logo," bending over the security guard. Like Madden, he saw the man wipe off the guard's empty holster with a white rag and then run off.

Harris and Dils arrived soon thereafter. Harris saw the security guard lying on the ground and Frank Madden using the phone. Dils checked the guard's pulse and found none. Harris and Dils then entered the store and saw the clerk behind the counter. The clerk had been shot in the right shoulder and stomach. He was holding a telephone yelling into the receiver. Dils and Harris assisted the clerk until the fire department arrived.

Phoenix Police Sergeant Richard Switzer received a radio call to go to the Short Stop. The call included a description of the suspects. While driving east on Broadway, he saw two black males walking west on Broadway across 44th Place. Sergeant Switzer made a U-turn and drove toward the men to determine whether they fit the suspects' descriptions. Switzer shined a spotlight on the two men, got out of his car, and walked toward them. Despite Switzer's order to "halt," one of the men (the one wearing a blue sweater with white markings on the upper sleeve) fled the scene running south. Switzer remembers the man who ran as being slightly taller than the man who did not run away.

The man who stopped identified himself as Michael Jones. After being asked about the man who ran away, Michael Jones told Sergeant Switzer that he had just met the man and did not know him. Jones was arrested and interrogated by Detective Armando Saldate.

Jones was staring at a capital murder charge. Eric King was arrested later that same day, 28 December.

Three days later, a savior stepped forward in the form of Jones' girlfriend, Nekita Renee Hill. Nekita Hill contacted the police and told them that she saw a picture from the Short Stop security video on the television. She recognized the man in the picture as Eric King. She recognized him, where others couldn't, because she knew Eric King. Eric King was a friend of her boyfriend, the endangered Michael Jones, and she had therefore encountered him frequently.

Once she realized that the armed robber was Eric King, she remembered that on the night of the murder, she was walking with her friend to her friend's house near 48th Street and Broadway, the very corner where the crime occurred. She remembers helicopters were flying overhead. As they approached her friend's house, she saw Eric King walking toward a dumpster. She saw him throw a light-colored, thin plastic bag into the dumpster. The bag contained a gun and a dark sweater with a white diamond pattern. She had seen Eric King wearing that very sweater on the night of the robbery.

At King's trial, Michael Jones testified that he had been to the Short Stop a couple of times on the evening of the crime, and was in fact there when the robbery and murders took place. He testified that he and Eric King had gone to the Short Stop to buy wine, and that he had remained outside while defendant went inside the store. He testified that while he was waiting outside, he heard gunshots. On hearing the shots, he turned toward the store and saw King leaving the store with a gun in his hand. He saw the security guard lying on the ground in front of the store with no gun in his holster, though (during an earlier visit) he had seen the guard armed with either a .44 or .357 magnum. Though he did not ever see King touch the guard, he believed that King took the gun from the guard.

Jones testified further that the next time he saw King, after they had both been arrested, King's hair was shorter and he had shaved his beard and mustache. When shown a photograph made from the surveillance camera inside the store, Jones testified that the person in the photo "looks a lot like" King and that "it seems like" King.

Jones made clear that he did not want to testify. On muliple occasions, he claimed to have forgotten events and conversations he described during his interrogation by Detective Armando Saldate. When pushed, however, he would often remember what he just previously claimed he could not. He attributed his lack of recollection to drinking that night, though Sergeant Switzer and Detective Saldate each testified that Jones did not appear to be intoxicated.

Detective Saldate was therefore called as a witness to describe what Jones had said during the interrogation.

Jones' girlfriend, the timely Nekita Hill, also testified for the state, but only reluctantly. She admitted that she did not want to be involved with the trial and that she was testifying only under threat of arrest. She testified that her boyfriend Michael Jones and his friend Eric King had gone to the Short Stop in the "middle of the night" on the night of the murders. She wanted to go with them but her mom would not babysit for her.

When Hill was shown a copy of the picture that was broadcast over the television, she admitted that the picture prompted her call to the police. She also admitted telling the police that the person depicted in the picture was Eric King. She tried recanting her earlier identification, however, by testifying that the person depicted in the picture did not look like Eric King. She confirmed that King had a beard and a mustache, and that his hair was longer and wilder at the time of the murders.

Pickup driver and eyewitness Frank Madden could not positively identify defendant as the man he saw that night, but he testified that the man he saw had "high cheekbones" like defendant's, that defendant looked very familiar, and the only difference was that the man he saw had facial hair and was not as nicely dressed as defendant.

Eric King did not testify. The only witness called by the defense was Sergeant Switzer, who essentially restated his earlier testimony concerning the height of the man who ran away when he stopped Jones.

During closing arguments, the defense attacked the credibility of the state's two key witnesses (Michael Jones and girlfriend Nekita Hill) and focused attention on his Eric King's height. King was only 5 feet 8 inches tall. Two witnesses, Frank Madden and Sergeant Switzer, testified that the person with Jones was over 6 feet tall.

The jury unanimously convicted Eric King of two counts of premeditated first-degree murder and one count of armed robbery, dangerous. Eric King is now scheduled to die by lethal injection in 17 days.

What do you think of this case?

Did the prosecution prove its case beyond a reasonable doubt?

If you had been on the jury, how would you have voted?

Why?

On a scale of 0 to 100, with 0 being positively innocent and 100 being positively guilty, what number would you assign to King's probability of guilt? 

Tomorrow, I'll explain how I would have voted.

And why.

Continue Reading Part 2

ERRATA:

1. There was not press converage of this case available on the net. I relied heavily on the appellate decisions,  as I frequently do. The appellate decisions did not include the date of arrest or the names of the victims. 

2. Incorporated the date of King's arrest into the post. King was arrested on 28 December 1991.

3. The store clerk was Ron Barman. The store security officer was Richard Butts.

4. Incorporated the question regarding the reader's assesment of King's probability of guilty.

5. Incorporated Eric King's middle name, John.

6. Approximately $72 was taken during the robbery.

7. Added photo of Eric King.

8. Added detail about Jones testimony, including his claim to have been drinking and his ability to remember what he had previously forgotten.

Tragedy

 

8.9 magnitude earthquake near northeast coast of Japan. 33 foot tall tsunami.

Live feed from BBC here.

Stunning pictures from the NY Times here.

Test the Damn DNA

The Supreme Court has recently ruled that Hank Skinner has a constitutional right to pursue DNA testing under civil rights legislation. Given that Texas desperately wants to execute him, one can understand Skinner's interest in the testing.

Texas, via DA Lynn Switzer, claims that Skinner is indisputably guilty and had a chance to test the DNA before his trial. Switzer claims she opposes the testing because it will only delay justice.

When I investigated this case one year ago this month, I made a detailed graphic summarizing the DNA that has been tested and remains to be tested. I re-post that graphic here, so that readers will have a better understanding of what all the fuss is about.

It's a large graphic. Click on it to enlarge. Once it appears as a separate image, click on it again to enlarge it even further.

The DNA items shown as "Tested" were tested after Skinner's trial, in the expectation that they would confirm his guilt and shut people up. The results instead exonerated Skinner and increased the furor over his impendng execution.

The DNA items shown as "Not Released" were sent for testing with the items which were tested. The "Not Released" items were either tested without releasing the results, or were not tested though sent for testing.

The remaining DNA items have never been sent for testing, as far as I can tell. They were tested neither before or after his trial. They should be tested. Before we execute anyone, we should test all the relevant DNA. 

Period.

Hank Skinner and the Supremes

The Supreme Court of the United States has just announced, in Skinner v. Switzer, that Hank Skinner has a right to pursue DNA testing under a civil rights law. That is spectacularly awesome news.

This just in. Before we execute someone, that person can now argue in court that all relevant DNA should be tested.

For the one or two of you who may have been reading this blog since its beginning, you may recall that I cut my teeth with a ten part series on the Hank Skinner's case. In fact, I factually exonerated him in a post (not surprisingly) called FACTUALLY EXONERATED! I actually used all caps AND an exclamation mark.

For those newer to this blog and unfamiliar with the Skinner case, the Supreme Court decision (written by Ruth Bader Ginsberg) provides quite a nice, compact summary for a very complicated case.

A Texas jury convicted petitioner Skinner and sentenced him to death for murdering his girlfriend and her sons. He claimed that a potent alcohol and drug mix rendered him physically unable to commit the brutal murders, and he identified his girlfriend’s uncle as the likely perpetrator. In preparation for trial, the State tested some of the physical evidence, but left untested several items, including knives found on the premises, an axe handle, vaginal swabs, finger-nail clippings, and certain hair samples. More than six years later, Texas enacted Article 64, which allows prisoners to gain postconviction DNA testing in limited circumstances. Invoking Article 64, Skinner twice moved in state court for DNA testing of the untested biological evidence. Both motions were denied. ... Skinner next filed the instant federal action for injunctive relief under §1983, naming as defendant respondent Switzer, the District Attorney who has custody of the evidence that Skinner would like to have tested. Skinner alleged that Texas violated his Fourteenth Amendment right to due process by refusing to provide for the DNA testing he requested. ...

Held: There is federal-court subject-matter jurisdiction over Skinner’s complaint, and the claim he presses is cognizable under §1983.

Legal subtleties abound in this case, and it seems to me as if Rob Owen (Skinner's attorney) has pulled yet another rabbit out of the jurisprudential hat. Strangely, it seems as if their plea to the Supreme Court would have failed if Rob had argued that the testing would prove Hank to be wrongfully convicted. Read that sentence again if you wish, but I believe I have typed it correctly.

Measured against this Court’s prior holdings, Skinner has properly invoked §1983. This Court has several times considered when a state prisoner, complaining of unconstitutional state action, may pursue a civil rights claim under §1983, and when habeas corpus is the prisoner’s sole remedy. The pathmarking decision, Heck v. Humphrey ... concerned a state prisoner who brought a §1983 action for damages, alleging that he had been unlawfully investigated, arrested, tried, and convicted. This Court held that §1983 was not an available remedy because any award in the plaintiff’s favor would “necessarily imply” the invalidity of his conviction.

Rob Owen instead argued the law was flawed, at least as it was interpreted by the Texas Courts. He was not arguing that Skinner's rights were violated because he was wrongfully convicted. He was simply challenging the misconstrued interpretation of a possibly flawed law. I'm sure I bollixed that one, but hopefully you get the point.

His counsel has clarified that Skinner does not challenge the prosecutor’s conduct or the CCA’s decisions; instead, he challenges Texas’ postconviction DNA statute “as construed” by the Texas courts.

CCA stands for Criminal Court of Appeals.

Here, success in Skinner’s suit for DNA testing would not “necessarily imply” the invalidity of his conviction. Test results might prove exculpatory, but that outcome is hardly inevitable, for those results could also prove inconclusive or incriminating. Switzer argues that, although Skinner’s immediate aim is DNA testing, his ultimate aim is to use the test results as a platform for attacking his conviction. But she has found no case in which the Court has recognized habeas as the sole remedy where the relief sought would not terminate custody, accelerate the date of release, or reduce the custody level.

So Switzer is claiming that Skinner merely wants to prove his innocence, Skinner is arguing that he is merely challenging a misconstruction of a law, and the Supreme Court sides with Skinner. Welcome to our justice system.

I'm pleased as punch that Skinner will have another chance in the lower courts to request DNA testing, but I feel as if the world is turning upside down. The people who want to execute Skinner are concerned that he might try to prove his innocence, and the people who want free Skinner are claiming that's not their goal.

Ginsberg wrote the majority opinion. Roberts, Scalia, Breyer, Sotomayor, and Kagan joined.

Thomas filed a dissenting opinion in which Kennedy and Alito joined.

Robert Owen, of course, praised the decision. "We look forward to making our case in federal court that Texas's inexplicable refusal to grant Mr. Skinner access to evidence for DNA testing is fundamentally unfair and cannot stand."

My congratulations to Rob Owen and to Hank Skinner. To Lynn Switzer and the State of Texas, I offer this suggestion. If you are so confident that the DNA will simply confirm Hank's guilt, and if you really want to expedite the process as you claim, just test the damn DNA.