We Be The Juror: Massachusetts v. Cowans

I offer the case of Massachusetts v. Cowans for your consideration. I have shamelessly stolen the summary from an adverse appellate decision. Please read the summary carefully. It will be followed by a single-question, binary-answer pop quiz.

A jury convicted the defendant, Stephan Cowans, of armed assault with intent to murder, home invasion, assault and battery by means of a dangerous weapon, armed robbery, assault and battery on a police officer, assault by means of a dangerous weapon, and unlawful possession of a firearm. The defendant asks us to hold that witnesses may not testify on direct examination to their degree of certainty in an identification. ... 

The jury could have found the following facts. After pursuing a male, later identified as the defendant, on foot, Boston police Officer Gregory Gallagher caught up to him in a backyard in the Jamaica Plain section of Boston. The defendant grabbed Gallagher and the two struggled until the defendant managed to remove Gallagher's gun from its holster. As Gallagher scaled a fence, the defendant shot him twice. Gallagher survived and heard additional shots. The defendant had shot at a neighborhood resident, Benjamin Pitre, but missed. 

At the same time, while in the kitchen of her home, Bonnie Lacy and her daughter heard gun shots. Lacy's son came downstairs and opened the side door of the house. The defendant, whom Bonnie Lacy had never seen before, was standing in the doorway with a gun. She testified that the man "just came on in ... [h]e just walked, just like normal walking, with a gun." The gun's barrel was pointing up. The defendant appeared frightened and nervous. Lacy was very frightened. 

Lacy asked him what the problem was and he replied, "[T]hose punks are after me." She asked who and he told her "those white policemen." Lacy asked the defendant to put down the gun. He complied. He kneeled on the floor and took off his sweatshirt. The defendant used his sweatshirt to wipe the gun and rested the gun on top of the sweatshirt on the floor. 

The defendant asked for some water and Lacy provided him with a glass mug of water. He drank the water and placed the mug on her kitchen table. Lacy went to the door and asked him if he was ready to go. The defendant told her he did not want to go to jail. Lacy told him that if he had done anything wrong he should just go and turn himself in. Lacy opened the door and the defendant went out.

The defendant left behind the gun and the sweatshirt. Lacy testified that after the defendant left, she and her children "hugged each other real, real tight; and we praised God that we didn't get killed." Lacy testified that the defendant never pointed the gun at her or her children and he never threatened them with the gun. 

Tennille Davis, a friend of the defendant's, testified that she saw him before and after the shooting. The defendant repeatedly suggested to Davis that he had been with her the entire day of the shooting. She testified that she corrected him and said she had seen him early that day and then again after the officer was shot, but that she had not been with him the entire day. 

Several weeks later, Gallagher selected the defendant's photograph from an array and then identified the defendant in a lineup. At trial, Gallagher identified the defendant as the man who shot him. Pitre viewed a photographic array, but did not identify anyone, even though the defendant's photograph was in the array. Pitre subsequently selected the defendant from a lineup and identified him at trial. Bonnie Lacy viewed a photographic array and the lineup but did not positively identify anyone. A fingerprint left on the glass mug was matched to the defendant. 

The theory of the defense was misidentification. A woman in the neighborhood had seen a black male being chased by a police officer, but she testified that it was not the defendant. Defense counsel also introduced evidence that the Lacy children had not selected anyone from the photographic array and challenged the eyewitness and fingerprint evidence.

Here's the pop quiz.

customer surveys

I'll cast the first vote. I vote Guilty. If you dare vote Not Guilty, I ask that you explain yourself in the comments.

ADDENDUM:
We have a verdict.

The No Longer Impending Execution of Todd Wessinger

Todd Wessinger sits on death row awaiting execution by the people of Louisiana. He had been scheduled for execution on the 9th of this month, but his execution has been stayed. I present the facts of the crime from the adverse opinion of State v. Wessinger (1999):

This case arises from the murder of two employees of Calendar's Restaurant in Baton Rouge on Sunday, November 19, 1995, at approximately 9:30 a.m. 

The evidence shows that defendant [Todd Wessinger], a former employee at Calendar's, rode his bicycle to the restaurant that morning armed with a .380 semi-automatic pistol. Mike Armentor, a bartender at the restaurant, saw defendant just outside of the restaurant, and they exchanged greetings. Immediately after entering the restaurant through a rear door, defendant shot Armentor twice in the back. Although Armentor sustained severe abdominal injuries, he survived. 

Defendant then tried to shoot Alvin Ricks, a dishwasher, in the head, but the gun would not fire. As Ricks ran out of the restaurant, defendant attempted to shoot him in the leg, but the gun misfired. As he was running across the street to call 911, Ricks told Willie Grigsby, another employee of the restaurant who escaped the restaurant without being seen by defendant, that he had seen the perpetrator, and the perpetrator was Todd. Ricks also told the 911 operator that the perpetrator was Todd. 

Stephanie Guzzardo, the manager on duty that morning, heard the commotion and called 911. Before she could speak to the operator, defendant entered the office, armed with the gun. After a short exchange with Guzzardo, in which she begged for her life, defendant, after telling her to "shut up," shot her through the heart. Guzzardo died approximately thirty seconds after being shot. Defendant then removed approximately $7000 from the office. 

Defendant next found David Breakwell, a cook at the restaurant who had been hiding in a cooler, and shot him as he begged for his life. Defendant then left the restaurant on his bicycle. EMS personnel arrived at the scene shortly thereafter, and Breakwell died en route to the hospital. 

Defendant was eventually arrested and charged with two counts of first degree murder. Testimony adduced at trial established that defendant had asked one of his friends to commit the robbery with him, and that he planned to leave no witnesses to the crime. Several people also testified that they had seen the defendant with large sums of money after the crime. The murder weapon was subsequently discovered, along with a pair of gloves worn during the crime, at an abandoned house across the street from defendant's residence. One of defendant's friends testified that defendant had asked him to remove the murder weapon from the abandoned house. Defendant was convicted of two counts of first degree murder for the deaths of Breakwell and Guzzardo and sentenced to death. The jury found three aggravating circumstances: (1) that defendant was engaged in the perpetration or attempted perpetration of aggravated burglary or armed robbery; (2) that defendant knowingly created a risk of death or great bodily harm to more than one person; and (3) the offense was committed in an especially heinous, atrocious, or cruel manner.

I can find no one, not even Todd Wessinger himself, who claims Wessinger is factually innocent of the crime for which he is slated to die. His stay was granted for further consideration of a claim that the jury was not allowed to hear some mitigation evidence during the sentencing phase of the trial.

I oppose the execution of anyone who might be factually innocent of the crime for which they are to die. In all other cases, I stand mute.  In the case of Tood Wessinger, I stand mute.

The Case of Preston Hughes III: The 99 Cent Coin

From "Dateless Amigo", another fine episode of Married with Children:

Marcy: Steve, don't tell them about your insane quest to create a 99 cent coin. 

Steve: Al, I invented the 99 cent coin. Have you ever noticed how things cost $7.99?  $14.99?  $99.99?  My coin will eliminate the messy change that only catches the attention of obnoxious beggars who hassle you on the way to your Mercedes. Think of it, Al. Anything you want, you just plunk down the old number 99. It's a plan without flaws. 

Al. What about tax? 

Steve; You sound just like those fools at the Treasury Department. 

Shandra Charles didn't have any change on her person when she was discovered dying in that dark, overgrown field. She did have five one-dollar bills and one five-dollar bill in her pocket, but she had no change.

It took me far too long to realize this, but the lack of change argues against any suggestion she was in that field because she was returning from Fuddrucker's. If she had recently purchased anything from Fuddrucker's, or from the Stop N Go, or from anywhere, she would have had some change in her pockets. Instead she had five ones and one five.

Duh.

I was recently speaking with someone who lived in the area at the time, someone who knows some of the individuals involved in the case. I'll refer to that person simply as Source. According to rumors Source had heard, Shandra was there that night to purchase marijuana for a third party. (I choose to withhold the name of that third party.) Since that rumor matched my raw speculation regarding Shandra's purpose of being in that field so late at night, I necessarily gave the rumor more credence than I would have otherwise. Nonetheless, I would not be writing this post based on hearing of that rumor alone. Something else triggered this post.

Source was not familiar with the details in the police reports. I asked about anyone nicknamed Dog. Nothing. I asked about the phone number associated with "Dog." Nada. Zip.

I mentioned to Source that the nickname and the phone number were found on a note in Shandra's pocket, along with five ones and one five. Source said: "See. Whadda I say? Dime bag."

Duh, with a bullet.

Source then begin to explain the meaning of dime bag. I explained that I already knew, that I was just too slow and too square to have made the association on my own.

For those of you even less streetwise than I, I offer the following definitions of dime bag from The Urban Dictionary.

1. Also known as a demon. Approximately $10 worth of weed, depending on how good the shit is. 

2. 'Dime Bag' is a general term for $10 worth of weed. Back in the day, a Quarter Ounce (7 grams) cost only $10. An eighth cost only $5, hence the terms nickel bag and dime bag. Some circles still refer to a Quarter Ounce as a dime bag. 

3. A little bag also filled with $10 of marijuana.

Someone was kind enough to post a picture.

Officer Hale also took a photograph of some "green leafy substance" found (not planted, found) in Preston's apartment.

The crime lab could have probably lifted prints off that bag, but they never reported any effort to do so. In fact, that item did not even appear in their evidence invoice, though Officer Hale claimed he collected it and maintained control of it until it was tagged into the property room.

On the dining room table was a maroon pullover shirt, a clear plastic bag containing green leafy substance. 

At this time I photographed the inside of the apartment. 

Evidence recovered inside Apartment 138A, (suspect's apartment)
...

(1) small clear plastic bag, containing a green leafy substance recovered on the dining room table in plain view. The plastic bag was recovered and placed inside a clear plastic bag and kept in officer's care, control and custody until tagged in the police property room.

Despite Officer Hale's assurance, the green leafy substance never seemed to have made it to the property room, at least not by 2:58 AM when the other items were tagged in (three hours before the HPD allegedly obtained a voluntary Consent to Search form).

Hughes claims the marijuana was planted, just as the eyeglasses were planted. For reasons detailed in Documents Gone Wild, I'm tending to believe him. 

The subject of marijuana makes another appearance in this story. Hughes claims the police told him they discovered marijuana on Shandra's person. They allegedly told him this as they were threatening to kill him if he did not confess.

I don't believe your story. We found marijuana on the girl, and we found a bag in your apartment. I believe you were with the two kids before you stabbed them. What did you do, trade some marijuana for a piece of young tight pussy? Come on you can tell me the truth. I know how you people are trading drugs for sex. You're going to give another statement to my partner, Sgt. Ferguson when he come in this room. If you don't I'm going to kill you because I have kids and I have nightmares of someone like you coming after them. Or hell, I'll just beat your ass all over this room and put you in Ben Taub. I'm sure they'll love to have and treat another patient. And who do you think the judge will believe, a piece of shit like you or me, a police officer? Now do I make myself clear?

Curiouser and curiouser.

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The Impending Execution of Anthony Bartee

Anthony Bartee sits on death row awaiting execution by the people of Texas. He is scheduled to die on 2 May. I offer a summary of the crime from the adverse opinion of Bartee v. Quarterman (2008). As I am apt to do, I have replaced each occurrence of the term "petitioner" with Bartee's name.

On August 15, 1996, Anthony Bartee telephoned his acquaintance Heidi Munoz and informed her he planned to "ace some white dude out." Munoz interpreted this remark as indicating Bartee planned to rob and "get rid of the person in question, whom Bartee indicated was named "David." When Ms. Munoz refused Bartee's request to assist in this endeavor, Bartee asked for the phone number of Ms. Munoz's ex-boyfriend, Joey Banks, and indicated he planned to seek Mr. Banks' help. During the same telephone conversation, Bartee also unsuccessfully solicited the assistance of Ms. Munoz's friends Nadine Berlanga and Stella Suarez. 

At some point during the summer of 1996, Bartee telephoned Joey Banks and requested Mr. Banks' help in robbing and killing someone who lived in the same neighborhood where Bartee stayed and who, Bartee informed Mr. Banks, had "some gold cards and a motorcycle" Bartee wanted. When Mr. Banks indicated he would not help, Bartee told Joey Banks he would do it himself. 

Later on that same date, Bartee arrived at Ms. Munoz's apartment riding a motorcycle which Bartee said he had acquired through a lawsuit. Bartee gave Ms. Suarez a ride on his motorcycle but Ms. Munoz declined Bartee's invitation for a ride. Although Bartee said he was carrying a gun, Ms. Munoz never saw one. 

The following morning, on August 16, 1996, Bartee approached two employees of a bowling alley located near Bartee's parents' residence and informed them he owned the Harley Davidson motorcycle they had found parked behind the bowling alley. 

Later that same date, Bartee drove the Harley motorcycle to Corpus Christi, Texas, where he met up with his acquaintance Macedonio Gonzalez. Bartee informed Mr. Gonzalez that he had traded in two motorcycles to acquire the new Harley. Bartee also informed Mr. Gonzalez Bartee had seen a friend of his shot in the head by two members of the "Ace of Spades" gang. Bartee never informed Mr. Gonzalez that the motorcycle belonged to Bartee's murdered friend. A few days later, Bartee returned to San Antonio but left the new Harley in Macedonio Gonzalez's custody, telling Mr. Gonzalez he would return to pick it up. When Bartee did not return after several weeks, Mr. Gonzalez contacted local law enforcement authorities in Corpus Christi, who took custody of the Harley. A Corpus Christi homicide detective testified at Bartee's trial that, on August 26, 1996, he took possession of a motorcycle from Macedonio Gonzalez which he identified as the same motorcycle reported stolen in connection with the murder of David Cook in San Antonio. 

On the morning of August 17, 1996, police and David Cook's family members discovered the body of David Cook inside Mr. Cook's locked residence in San Antonio, Texas. An autopsy revealed Mr. Cook had been fatally shot twice in the head and stabbed once in the shoulder. At the crime scene, police discovered: (1) a slug which fell from the face of David Cook as his body was rolled over by personnel from the medical examiner's office, (2) a second slug which had passed through a wall, penetrated the rear of Mr. Cook's refrigerator, and come to rest therein, and (3) a pair of spent shell casings and several live 9 mm rounds. A firearms expert testified at Bartee's trial that the spent round, shell casings, and bullet fragment recovered from the crime scene were all consistent with 9 mm bullets that had been fired from the type of handgun Mr. Cook owned but which was missing from the crime scene following Mr. Cook's murder. Both David Cook's 9 mm pistol and Harley Davidson motorcycle were missing from his residence. 

Several members of David Cook's family described and identified a photograph of a red Harley Davidson motorcycle owned by David Cook which was missing from Mr. Cook's residence following the discovery of David Cook's body. Heidi Munoz identified a photograph of David Cook's Harley Davidson motorcycle as similar to the one driven by Bartee when he visited Ms. Munoz's apartment late on the night of August 15, 1996. Each of the two bowling alley employees who encountered Bartee the following morning identified the same photograph of Mr. Cook's motorcycle as the one Bartee claimed as his own. A friend of Bartee's who resided in Corpus Christi identified the same photograph of David Cook's motorcycle as the one Bartee drove to Corpus Christi in August, 1996 and claimed as his own. 

On August 20, 1996, shortly after his return to San Antonio, Bartee gave San Antonio police a written statement in which he claimed to have no knowledge whatsoever of David Cook's murder. 

On August 30, 1996, while in custody on an unrelated charge, and after having been informed that police had recovered David Cook's missing motorcycle, Bartee gave San Antonio Police a second written statement in which he claimed: (1) he had been present at David Cook's home at the time of Mr. Cook's fatal shooting, (2) he had witnessed two local gang members he knew only as "Snake" and "Throw down" enter Mr. Cook's residence and escort Mr. Cook to the back bedroom, (3) he then went to the garage and sat down on Mr. Cook's motorcycle, (4) suspecting foul play was about to occur, he started Mr. Cook's motorcycle, and (5) when he then heard gunshots, he fled the scene on Mr. Cook's motorcycle out of fear for his own safety. 

In following weeks, Bartee telephoned Heidi Munoz and one of Ms. Munoz's friends, claimed to have had no involvement in David Cook's murder, and urged them both to claim they had no knowledge of anything relating to David Cook's murder or of the motorcycle Bartee was riding the night he visited Ms. Munoz's apartment. 

The guilt-innocence phase of Bartee's capital murder trial commenced on May 11, 1998. 

After presenting the evidence outlined above, the prosecution rested on May 14, 1998. 

The defense then called a neighbor of David Cook who testified: (1) he heard what he believed was a loud motorcycle take off around ten p.m. on August 15, 1996, and (2) very shortly thereafter, he heard automotive tires squealing. The defense also presented a second neighbor of David Cook who testified she witnessed a white vehicle with two black stripes squealing its tires as it left David Cook's driveway around 10:45 p.m. the evening of the murder. The defense then rested. 

The prosecution then called in rebuttal a third neighbor of David Cook who testified, on the evening of David Cook's murder: (1) sometime after 11 p.m., he was visited by a drunken friend who parked his car directly across the street from David Cook's home, (2) he argued with his inebriated friend, who was driving a big white car with dark blue stripes, and (3) his friend later left the area, first by backing his vehicle into David Cook's driveway and then squealing his tires as he left the area at a high rate of speed. ...

On May 15, 1998, after deliberating less than five hours, the jury returned its verdict, finding Bartee guilty of capital murder, as charged in the indictment.

Bartee recently received a stay of execution so that hairs found in the victim's hand could be tested for DNA. The defense argued that if those hairs belonged to someone other than Bartee of the victim, then that indicated someone other than Bartee had committed the murder, just as Bartee claimed. After long and (in my opinion unconscionable) delays, the DNA testing was completed. All hairs found in the victim's hand belonged to the victim himself.

I oppose the execution of anyone who might be factually innocent of the crime for which he is scheduled to die. In all other cases, I stand mute.

In the case of Anthony Bartee, I stand mute.

ADDENDUM:

May 2, 2012: Bartee's execution was stayed by a federal judge. The defense wants DNA testing of  cigarette butts and drinking glasses. Though the State appealed the stay immediately, and though the Supremes quickly refused to hear Bartee's "other" appeals, it seems as if the stay is good at least until midnight. I think the means that Bartee cannot be executed for at least a month. I believe the execution warrant is good only until midnight, and that a new warrant cannot set an execution without 30 days notice.

The Impending Execution of Michael Selsor

Michael Bascum Selsor sits on death row awaiting execution by the people of Oklahoma. His execution is scheduled for tomorrow. It does not seem as if he will survive the day.

I offer a summary of his crime from the adverse appellate decision in Selsor v. State (2000):

At approximately 11:00 p.m. on September 15, 1975, Selsor and Richard Eugene Dodson robbed the U-TOTE-M convenience store at 5950 33rd West Avenue in Tulsa. Selsor and Dodson entered the store, each armed with a .22 caliber handgun. Employee Clayton Chandler was working at the cash register. Selsor approached Chandler, pulled his gun, and demanded the contents of the register. Dodson located employee Ina Morris, who was restocking the walk-in cooler. Dodson pointed his gun at her and ordered her to get down. Morris replied, "You've got to be kidding me." Dodson then fired a shot striking Morris in the shoulder. 

Chandler loaded a sack with money and handed it to Selsor, who then shot Chandler several times in the chest killing him. Upon hearing the shots, Dodson emptied his weapon through the cooler door at Morris. Morris was shot in the head, neck and shoulder, but survived. Selsor and Dodson then fled. 

On September 22, 1975, Selsor and Dodson were arrested in Santa Barbara, California. Selsor confessed this and other crimes to Detective John Evans of the Santa Barbara Police Department. In his confession, Selsor admitted that before entering the store, he and Dodson had agreed to leave no witnesses.

During Selsor's first trial, he was found guilty and sentenced to life imprisonment. He appealed and won a retrial. During the second trail, he was found guilty and sentenced to death.

Selsor makes no claim of factual innocence. Instead, he based his most recent clemency plea on his remorse, the changes he has made to his life, and on the unfairness of being given the death sentence after initially being given life in prison.

I oppose the execution of any person who might be factually innocent of the crime for which they are to die. In all other cases, I stand mute.

In the case of Michael Bascum Selsor, I stand mute.

ADDENDUM:
Michael Selsor has been executed by the people of Oklahoma.