Fighting to keep innocent men behind bars

Over in Kentucky we have the latest example of a prosecutor forgetting that seeking justice, not obtaining convictions, is his ethical duty.

Keith Hardin and Jeffrey Clark were convicted of the murder of Rhonda Sue Warford in 1995 in a case that involved allegations of satanic worship and animal sacrifice. Ms. Warford was 19 years old when she complained that an old man had followed and harassed her. Three days later she was found dead, with 11 stab wounds.

Mr. Hardin and Mr. Clark contested their convictions for 21 years - finally winning a reprieve in 2016.

After DNA testing - which prosecutors fought against - proved that a hair found at the scene matched neither Mr. Hardin nor Mr. Clark and that blood found on a washcloth belonged to to Mr. Hardin and no one else.

After Judge Bruce Butler's ruling, Assistant State Attorney General Perry Ryan decided that he wasn't going to let the pair walk away. He refiled murder charges and added charges of perjury and kidnapping.

Last month, Judge Butler ruled that Mr. Ryan had brought the new charges up without merit and that they were filed in a spirit of vindictiveness. The judge called out Mr. Ryan by name and stated that the new charges were filed solely because Mr. Hardin and Mr. Clark had the nerve to contest their convictions.

“This is clear and actual vindictive prosecutorial action." -- Judge Bruce Butler

Our criminal (in)justice system is deeply flawed. Trials aren't conducted to determine what happened and who did it, they are a contest between competing narratives that may or may not have any tangible connection to the truth. Prosecutors treat a jury verdict of guilty as concrete proof that their theory of the case was correct - an acquittal is viewed as a miscarriage of justice.

But juries aren't perfect and verdicts aren't, and shouldn't be, sacrosanct. A jury isn't given all the information related to an incident. Evidence on both sides is excluded for various reasons. Evidence isn't tested by independent labs. Testimony from eyewitnesses is held up as proof even though there is mounting evidence that eyewitness testimony is unreliable due to a number of factors.

The point is that just because a jury comes back with a guilty verdict, that doesn't, in and of itself, make it correct. Sometimes it's because exculpatory evidence has been intentionally withheld. Sometimes it's because crime labs don't have the time, money or manpower to conduct tests on evidence. Sometimes it's because juries don't understand what beyond a reasonable doubt means. And sometimes it's because the trial strategy of the defense went all pear-shaped.

The murder charge against Mr. Hardin and Mr. Clark should be dismissed because the evidence supporting the prior convictions has been discredited. But that would mean the police and prosecutors would have to admit that they went after the wrong men. They would have to admit that for 21 years, two innocent men sat in prison while the real killer (or killers) went free. Such an admission might give rise to a little better understanding of beyond a reasonable doubt for area jurors.

Mr. Ryan has fought justice in this case for years because he doesn't want to have to go out and put in the work to determine who really killed Ms. Warford. It's much easier to take the transcript of the previous case and go right back down the line than it is to conduct an investigation more than 20 years after the crime.

Maybe had the police done their job better back in 1995 two innocent men wouldn't have spent 21 years behind bars for a crime they didn't commit. Maybe the person responsible for the murder would have been there, instead.

What's good for the goose...

"During your deliberations in this case, you must not consider, discuss or relate any matters not in evidence before you. You should not consider or mention any personal knowledge or information you may have about any fact or person connected with this case that is not shown by the evidence." -- Instruction given to juries in Harris County

If the jury as the trier of fact cannot take into consideration any personal knowledge they may have that was not put into evidence, then I am hard-pressed to see how a judge sitting as the trier of fact is permitted to do any differently. In Texas, at least, Judge Donald Armstrong's ruling in the Howlett case (discussed earlier today) would be an abuse of discretion.

Belching his way to an acquittal

The Kentucky Supreme Court is set to decide whether a burp is enough to invalidate a breath test.

It seems that Bertrand E. Howlett exhibited several signs of intoxication when he was stopped for a traffic violation back November of 2006. Mr. Howlett was arrested and taken to the station to blow in the state's breath test machine (the Intoxiliar 5000). The machine registered a .015. At trial Mr. Howlett testified that he burped before blowing into the machine.

Judge Donald Armstrong, a former prosecutor for the Commonwealth, recalled from his days as a DA that the manual for the state's breath test machine said that if suspect regurgitated that the 20-minute observation period must begin anew. The next day he found Mr. Howlett not guilty.

The state appealed Judge Armstrong's decision arguing that it was improper for the judge to consider facts not in evidence to decide the case (it was a bench trial). At no time during the proceedings did Mr. Howlett's attorney ask the court to take judicial notice of the provisions in the operator's manual. The state also argues that burping, belching and regurgitating are all different bodily acts and that a burp is not sufficient to warrant a new observation period.

The point of the observation period is to make certain that the machine is measuring only deep lung breath and not residual alcohol in the mouth. When someone burps, belches or regurgitates, they are expelling gases from their digestive system through the mouth -- and any alcohol that might still be in the stomach could contaminate a breath sample by registering a higher alcohol concentration that is present in the body.

The larger question, however, is whether or not a judge can rely on his personal knowledge when ruling on a case. Jurors are instructed that they are to make their decision based solely on the evidence presented in court. Does that same admonition hold true when a judge is the trier of fact? What if a jury is seated? Can the judge make rulings on the admissibility of evidence based on his or her personal knowledge or recollection?

If so, that's a troubling notion that can cut both ways.

Coach charged in death of football player

Mr. David Stinson, head coach for the Pleasure Ridge Park H.S. football team, was charged this past Thursday for reckless homicide in the death of a player at summer practice.  Mr. Stinson asked the Jefferson County Commonwealth's Attorney to speak to the grand jury but his request was denied.  The only person who testified before the grand jury was a Louisville Metro Police detective.

Mr. Gilpin was taking Adderall at the time of his death and had been taking creatine - though he may have stopped taking it before his death.

On the afternoon of August 20, while the heat index hovered in the mid-90's, Max Gilpin, an offensive lineman, collapsed.  He was taken to the hospital with a body temperature of  107 degrees.  He died three days later.  Coaches allegedly refused to allow players to take water breaks during practice.  According to a deposition given by the school's athletic director, Mr. Craig Webb, Mr. Gilpin was on the ground for 10-15 minutes before anyone attended to him.

According to reports, a second player also collapsed and spent two days in the hospital.

According to Kentucky law, a person is guilty of reckless homicide, a Class D felony (carrying a range of 1-5 years in prison), if he causes, by his recklessness, the death of another.  Said the Commonwealth's Attorney, "a reasonable man should have realized that something like this could have occurred."  Interestingly enough, none of the five assistant coaches on the field at the time of Mr. Gilpin's collapse were charged.

Earlier this month I posted an article about assigning criminal liability to bad business decisions. Could this case set a precedent and expose all coaches to criminal liability when something goes horribly wrong at practice or in a game? Texas has always been famous for working football players hard during the summer so that they'll be ready to compete in the fall -- you haven't forgotten about Bear Bryant's Junction Boys? While in law school it was not unusual for me to come home from work and run 5 miles in 90 and 100 degree temperatures before going to class. Have the increased use of prescription pharmaceuticals, over the counter medicines and supplements made us more vulnerable to the heat? 

Only time will tell if Mr. Gilpin's death was a tragic accident or a death that could have been prevented.

See also:

• Article from the Lexington Herald-Leader.
  
• Article from the Louisville Courier-Journal.
  
• Article from the Boston Herald.
• Wall Street Journal Law Blog.