The Exclusionary Rule keeps police officers in check while conducting searches. It prevents prosecutors from presenting illegally obtained evidence.

The rule states that any evidence siezed during an improper search cannot be used, no matter how incriminating it may be (see Fruit of the Poisonous Tree below).

And, if this improper evidence the key piece to the entire case—the smoking gun—the prosecution may be forced to drop the case, sending a very guilty crook back on the street. The defendant may also have grounds for a civil suit against the officers involved, as well as the police department and the city.

The Exclusionary Rule is basically the Supreme Court keeping watch over search-warrant-serving cops.

There are exceptions to the exclusionary rule, such as:

When officers rely on a warrant that later turns out to be invalid. For example, officers search a house and find a large cache of illegal weapons along with a guy who’s in the process of grinding off serial numbers from an AK-47. Later, the court learns that the address on the warrant was incorrect because the detective accidentally typed River Avenue instead of River Road. Or, the landmarks used to identify the property to be searched were improperly, but accidentally, recorded.

“I meant the blue house on River Road, the first one on the right past the old oak tree, not the first one on the left. It was an honest mistake. Oops!”

In such cases, warrants may still be ruled valid and the seizure of evidence may still be legal. Or, the warrant may be ruled invalid but the seizure of the evidence could possibly stand. This is so because the officers were acting in good faith, believing they were on the property based on a constitutionally sound warrant (This is a weak example, but you get the idea).

However, if a police officer lies to the judge or magistrate, or if the judge or magistrate showed bias toward the officers when issuing the search warrant, the warrant is invalid and the exclusionary rule is in effect. The evidence recovered by the police may not be used. In fact, it will be tossed out of court, and possibly the officer, too.


Did you know??

Fruit of the Poisonous Tree – Illegally obtained evidence cannot be used against a defendant. Evidence illegally obtained is “Fruit of the Poisonous Tree.”

 


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“Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan 

Qualified immunity protects government officials, including police officers, from lawsuits alleging that the official violated someone’s clearly established statutory or constitutional rights. More about “clearly established” in a moment.

In the case of Harlow v. Fitzgerald, the U.S. Supreme Court recognized the need for a qualified immunity defense to protect government officials, including police officers, from frivolous lawsuits that often stem from their official actions. However, the Court also made it perfectly clear that the vast majority of government officials, again, including police officers, are not entitled to absolute immunity. That privilege is solely reserved for a select few officials at the top of the food chain.


Qualified immunity lawsuits may proceed only when an individual’s “clearly established” statutory or constitutional rights have been violated.

When examining cases of qualified immunity, courts consider if a reasonable government official or police officer knew that their actions violated the rights of the plaintiff. Another factor considered by the court is if the law in question was in effect at the time of the alleged violation of a right(s). Of course, if the law is the same at both times, then that is the law that’s considered when determining an outcome.


The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, not in hindsight.

Qualified immunity applies only to lawsuits against individual government officials, again, including police officers, and not those against the overall government itself. Damages caused by a government official may be covered under qualified immunity, yes, but a government may still be held responsible. This is why we sometimes see damages paid by cities to individuals, or their families, as a result of, for example, a police action.


Police officers can act without fear of being sued as long as their conduct does not violate the victim’s constitutional rights. However, those rights must be so clearly established and apparent that a reasonable person would have known them. This is the intended purpose of Qualified Immunity.

An example of qualified immunity is when an officer reasonably but mistakenly concludes that probable cause exists, or when they reasonably believe that their action was constitutional.

Officer Real Lee Honest passed by a liquor store while walking his beat. He saw a man behind the counter holding the store clerk in a chokehold. The two men stood near the cash register. Officer Honest, believing the man was robbing the clerk, immediately called for back and then entered the store with his pistol in hand, aimed at the “robber.” The officer shouted for the robber to release the clerk and to lie flat on the floor. The man complied while loudly proclaiming innocence but allowed the officer to apply handcuffs to his wrists.

Lots of shouting between the officer and the suspect. The store clerk was also shouting something, but the officer whose adrenaline was in “Danger/Robber-in-Progress” mode was unable to process the words of the clerk due to auditory exclusion. His attention was on the “robber” and, of course a safe outcome of the situation.

As it turned out, the “robber” was a MMA fighter called “Snake” who trained with his best friend, the store clerk, and he was merely demonstrating a technique to his pal.

Snake felt his rights had been violated and he hired an attorney to sue the officer. The court, though, ruled that the officer acted in good faith and that no reasonable person would have thought the officer’s action were unconstitutional. An honest and reasonable mistake. Qualified immunity applies.


In the case of Derek Chauvin, the former police officer charged with the killing of George Floyd, the victim’s family may have a difficult time proving their civil case against the officer due to qualified immunity. To prevail, they must cite precedents in which past defendants were found to have violated the law in exactly the same manner as the violations committed by Chauvin.

It’s important to know that qualified immunity applies only in civil cases, NOT in criminal trials. So no, qualified immunity is NOT a get out of jail free card for police. Qualified immunity helps officers to not second guess their actions when mere seconds count when in life or death situations.

The split second decision of protecting their lives or the lives of others should not hinge on the worry of losing everything they own in a civil lawsuit. Instead, their sole worry when in a life or death situation, should be on living to see another day. Still, the decision must be one that’s reasonable and does not violate constitutional rights.

When a person is arrested the court may release them under conditions commonly known as “bail.”

Bail typically includes a sum of money paid to the court, a fee that’s typically given back at the end of the case if the defendant follows court orders. It’s a cash guarantee used meant to ensure the defendant shows up at their trial and other hearings.

Should a defendant not meet their obligations to the court, which may include failure to appear, no alcohol and drug use, no driving, no internet use, no travel outside the jurisdiction, home confinement, etc., the court keeps the bail money. Subsequently, the court issues an arrest warrant, sometimes called a capias, a warrant for failure to appear, and the defendant is arrested and held in jail until trial.

In lieu of cash bail, if the defendant can’t afford the full payment, they often have the option of what’s known as a “bail bond.” There are several types of bail bonds, such as securing the bond using collateral, something of value that’s equal to or greater than the bail amount set by the court, such as a home, or land. The property, however, must have enough equity to satisfy the amount of the bond.

Like bail, collateral may be forfeited to the court if the defendant fails to appear for court appointments. Family members are not keen on losing the family farm so they typically keep a close eye on their defendant relative to make certain they appear in court.

Bail bond agents charge a fee to post a bond on the defendant’s behalf, such as 10% – 15% of the bail amount set by the court. They may also require collateral, something of value such as a home or land. The fee collected is generally non-refundable since it is a service provided by the bond agent to the defendant. It’s how they make money.

Bail bond agents guarantee the court that they’ll pay the entire amount of the bail if the defendant fails to appear in court. Therefore, they may send a bail enforcement agent (bounty hunter) to locate the defendant and take them into custody and then deliver them directly to jail. Once they’ve handed over the defendant to authorities the bail bod agent’s company may recover the forfeited bond. Bail bound agents receive a fee for their services that’s paid by the bail bond agent.

Judges typically have the power to deny bail, revoke bail. and to increase or decrease a person’s bail. Bail may not be used as a means of punishment, and the U.S. Constitution demands that bail amounts be reasonable. Circumstances, such as the severity of a crime or a chance that a defendant may flee, allow a judge to set bail at such an incredibly high amount that a defendant couldn’t possible assemble the funds needed. Those individuals remain in jail until their trial is over.

“O.R.”

Defendant may be released from custody “on their own recognizance” (O.R.).

Typically, in order to be released on someone’s O.R., they must:

  • Be employed
  • Have a record of showing up on time for previous court hearings
  • No, or very minor, criminal record
  • Community ties, such as family, church, civic organizations, own a home, live in the area for many years, etc.
  • Not a flight risk

These factors go a long way in convincing a judge to allow someone to remain free, either on bail, with a reduced bail amount, or no bail.

“Sign here, please”

Did you know that a traffic summons is official notification of a pending court date at which you must appear to answer for the charges of which you’re accused, such as speeding, reckless driving, faulty equipment, etc.?

And, did you know that signing the summons/ticket is your promise to appear in court?

Yes, this is an actual arrest, and if you don’t sign the traffic ticket the officer could immediately take you into custody.

Therefore, by simply signing the ticket you are “released on your own recognizance” (OR) and allowed to travel on your way. Signing is not an admission of guilt. Again, it’s merely your promise to appear in court, or take care of fines in advance. Of course, paying the fine prior to a hearing is an admission of guilt and will become a pat of your driving record.


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Changing their pleas from not guilty to guilty in the college admissions scandal case, Lori Loughlin and husband Mossimo Giannulli sent the internet into a buzz of chatter. Why, many asked, did, after such a long battle, would the couple suddenly change course after vehemently professing their innocence?

Some say the pair likely feared the possibility of a 40-year sentence in federal prison. Others say their timing was well-calculated due to the mass release of inmates due to the current COVID-19 situation.

Per the terms of their agreement, Loughlin would serve two months in prison and pay a $150,000 fine. She would also serve two years of supervised release and 100 hours of community service. Giannulli, Loughlin’s husband, would serve five months in prison, pay a $250,000 fine, and after his release from prison would serve two years of supervised release and 250 hours of community service.

Loughlin pleaded guilty to one count of conspiracy to commit wire and mail fraud. Giannulli pleaded guilty to one count of conspiracy to commit wire and mail fraud and to honest services wire and mail fraud.

Due to COVID-19 … well, there’s a good chance that neither of the two will set foot inside a federal prison. Instead, it’s possible they’ll be assigned to home confinement for the duration of their sentences. I’m not say this is what will occur. Instead, I’m merely stating that it is indeed possible.

So how do judges decide the sentence for a particular crime? Since we’re talking about Lori Loughlin’s case, which is a federal crime, her sentence will be decided by a federal judge who relies on Federal Sentencing Guidelines.

Federal Sentencing Guidelines

Federal Sentencing Guidelines are rules that determine how much, or how little, prison time a federal judge may impose on a defendant who has been found guilty of committing a federal crime. First, though, attorneys and probation officials must determine where the defendant fits in on the Federal Sentencing Table (below). To do so, they must assign the defendant to a criminal history category (I-VI), and to an Offense Level (1-43).

Federal Sentencing Table

A defendant’s criminal history points are determined by:

  • Assigning 3 points for each prior sentence of 1 year and 1 month
  • Adding 2 points for each previous sentence of 60 days to 13 months
  • Adding 1 point for a prior sentence of less than 60 days
  • Adding 2 points if the defendant committed a crime while already under another sentence (probation, parole, etc.)
  • Adding 2 points if the current offense was committed within two years of completing a previous sentence
  • Etc. (there are several other factors that add or subject points—too many to list here)

For example, using the chart above, a defendant who has a final total of 13 criminal history points will be in category VI.

Offense Levels

Next, officials must then decide the defendant’s offense level. To do so, they refer to Chapter 2 of the Federal Sentencing Guidelines, where they’ll find a a base number assignment for each crime. For example, First Degree Murder has a Base Offense Level of 43. Therefore, 43 is the starting point for determining the defendant’s final Offense Level.

Let’s say our defendant was convicted of Aggravated Assault, which has a Base Offense Level of 14. Officials must then determine what factors were in play during the commission of the crime, such as use of firearms, etc. For example, the use of a firearm during the assault would increase the offense level by 4 points, making it a level 18. If the assault was premeditated, add 2 points. If the firearm was discharged, well, that’s another 5 points. If the victim received serious injury during the attack…yep, that’s worth 7 points. A minor injury…3 points. Get the idea?

So, What’s the Damage?

Let’s add it up and see where our bad guy falls in the guideline.

  • Aggravated Assault = base level of 14
  • He shot at his victim = 4 points
  • The victim suffered a serious injury = 7 points

Total = 25 points

Therefore, our guy, a repeat offender with a criminal history category VI, and an offense level of 25, will be in Zone D, subject to receive anywhere from 110 to 137 months in the federal penitentiary.

Upward and Downward Departures

Easy enough, right? Well, it doesn’t stop there. Other factors are still waiting to be applied, such as downward or upward departures from the guidelines. For example:

  • Points may be subtracted if the defendant assists the government with ongoing cases (provides substantial information). There are, of course, many other factors that allow for a downward departure. Another example of a reduction of points is when the defendant accepts full responsibility for the crime. If so, the prosecutor may file a motion for a downward departure. This normally occurs when the defendant pleads guilty.
  • Points may be added for things like wearing a bullet resistant vest during the commission of a drug crime, and abuse of a position to further the commission of the crime (a politician who uses his position and power to commit a crime—a governor who uses his position to sell a seat in the senate left vacant by the president of the U.S.). Again, there are far too many to list here.

Guilty Pleas

Back to our crook who wound up with the offense level of 25. Well, let’s say he entered a guilty plea and accepted responsibility for his crime.

The guilty plea/acceptance-of-responsibility earned him a downward departure of up to 3 points. Take 3 points away from the original 25 and that leaves him with an offense level of 22. Back to the chart we go. His sentencing range at level 22 is a much lower 84-105 months…well over a year less. And that’s a nice little reward for owning up to the crime, which, by the way, saves the government a lot of money—no trial.

So, is this as clear as mud, or do you now sort of understand how sentences are handed out in federal court?

One thing’s certain, a 36/VI is going to prison for a long, long time.

Well, there’s that 3 point deduction, and that other 2-pointer … oh yeah, let’s not forget the four 1-point deductions. And our bad guy did help out by telling the government who sold him the machine guns.

I think our crook now has total of 6 points to the good. Hmm … with all those extra points, does that mean he can now commit one free crime?

separate the witnesses


Click the play button below to learn more about federal sentencing guidelines and about the Sentencing Commission

Courtroom Security

You’ve all seen the deputies and other officers who guard courtrooms. Yes, they’re highly visible and they’re there to protect everyone from harm. However, courtroom security is far more than just watching prisoners inside the actual room where the trial is held.

Courtroom security officers diligently monitor spectators, witnesses, and defendants. They also watch the victim’s family members for any signs of potential violence against the defendant(s). And they’re always on high alert for escape attempts by prisoners.

But what we see in the courtroom—stern faces, sharply creased uniforms, and holstered weapons—is the tip of the iceberg. Behind the solid oak door at the rear of the courtroom is a well-oiled security machine with wheels that begin to turn long before the judge, jury, and witnesses sit down to have their breakfasts. In fact, many security measures have been in place for months, maybe years.

333BUTLER

Security starts with things like landscaping around the building and parking areas. Plantings and hardscapes must allow an unobstructed view and no potential hiding spots for snipers and others who may assist in an escape attempt during times of inmate and witness movement.

Outdoor lighting must be adequate, and prevent areas of darkness and shadow. Those yellow posts sticking up through the sidewalks and pavement? They’re in place to prevent a driver from rushing the building, or people. The barriers also prevent vehicles (those containing explosives, getaway vehicles, shooters, etc.) from getting too close to the facility.

Windows and doors are equipped with a shatter resistant film between the layers of glass. As a means of even greater protection some lower floor windows may be fitted with bullet-resistant glass. Doors are tamper proof and are connected to alarm systems.

Visitors to the courthouse, and their belongings, are carefully screened prior to entering secured areas of the facility.

Officer stationed at x-ray machine and walk-through metal detector.

Monitors for x-ray equipment.

Many judges have panic buttons hidden somewhere on their benches.

314BUTLER

A quick press of the button and the alarm sounds in manned stations within the courthouse and in nearby police departments.

Help is on the way in an instant.

Designated parking areas for judges and other court employees is a standard. The same is true for police and inmate transport vehicles. Any unauthorized vehicle in those areas is cause for concern and would require immediate investigation.

To further prevent breaches of security, the public is not permitted in any unauthorized areas of the court buildings.

Courthouses also feature secure areas for weapons and other sensitive material.

OLYMPUS DIGITAL CAMERA

Inmates are awakened, fed, and dressed long before the courtroom is open. All prisoners with hearings on a given day are transported from the county or city jail to the courthouse, where it’s quite possible they’ll each remain until the last trial of the day.

While at the courthouse prisoners must receive meals, bathroom facilities, etc. for the duration of their time there, which could be many, many hours.

Holding cells, where prisoners wait until the time of their trial, are located inside court buildings. After their time in the courtroom is complete, prisoners are returned to the holding cells where they remain until they’re transported back to the main jail, often at the end of the day when all inmates are transported at once.

*It is possible that transportation officers make trips to and from the jail and courthouse throughout the day. This depends on availability of staff members and vehicles. Remember, the fewer times inmates are out and about in the public, even in secured transport vehicles, reduces the opportunities for escape.

Inmate movement inside the courthouse is conducted through special hallways or passageways that are typically not available to the public.

FYI – Some courthouses are directly connected to jail facilities via underground/basement hallways.

Prisoner

In most areas, the duty of courtroom security falls on the sheriff of that particular jurisdiction. The sheriff assigns deputies to each courtroom, and each of those deputies receive specialized training that’s specific to the courtroom and inmate transportation.

In the federal system the job of courtroom and inmate security falls on the shoulders of the U.S. Marshals.

New Picture

Transporting prisoners via the U.S. Marshals’ Justice Prisoner and Alien Transportation System (JPATS). JPATS operates a network of aircraft, cars, vans and buses. (U.S. Marshals photo).

Protecting our courtrooms, and shuttling prisoners to and from those facilities, is a tough and dangerous job, a job with duties many people never see.

 

In 1978, congress approved and enacted the Foreign Intelligence Surveillance Act (FISA). In addition, the Foreign Intelligence Surveillance Court was established to review applications submitted by the federal government regarding electronic surveillance (phone and wiretaps, etc.), physical searches, and other investigative needs pertaining to foreign intelligence. The applications to the court and their subsequent review and rulings are entirely one-sided (only the government may provide/offer evidence) and are conducted in secret.

Simply put, government officials file an application to the FISA Court requesting permission to conduct electronic surveillance or a physical search.

Applications must be filed, at minimum, seven days prior to the time the government desires to have the matter reviewed by the court. Emergency situations are the exception to the seven day rule. It is the Clerk of the FISA Court who receives the filings, not the judges.

Only one judge sits on the court at a time, in rotating seven-day shifts. Therefore, FISA applications are heard by a single judge, not a panel of judges.

It would not be unusual for the entire process to be handled electronically and/or by phone. In past years it was extremely rare that a FISA Court judge denied an application.

The Foreign Intelligence Surveillance Court consists of eleven district judges chosen by the Chief Justice of the United States. Each FISA Court judge serves for a maximum of seven years. Their times on the bench are staggered to ensure uninterrupted continuity. Judges are selected from at least seven of the circuits across the U.S. At least three of the eleven judges must live within twenty miles of Washington D.C.

The Foreign Intelligence Surveillance Court sits in a $2 million courtroom in the federal courthouse in Washington, D.C.

Current Membership of the FISA Court includes:

Judge Judicial District /Circuit Date Designated Term expires
Rosemary M. Collyer  District of Columbia / D.C. March 8, 2013
(Presiding: May 19, 2016-Dec. 31, 2019)
March 7, 2020
James E. Boasberg District of Columbia / D.C. May 19, 2014
(Presiding: Jan. 1, 2020)
May 18, 2021
Rudolph Contreras District of Columbia / D.C. May 19, 2016 May 18, 2023
Anne C. Conway Middle District of Florida / 11th May 19, 2016 May 18, 2023
Louis Guirola, Jr. Southern District of Mississippi /5th July 2, 2019 May 18, 2026
James P. Jones Western District of Virginia /4th May 19, 2015 May 18, 2022
Robert B. Kugler District of New Jersey / 3rd May 19, 2017 May 18, 2024
Michael W. Mosman District of Oregon / 9th May 4, 2013 May 3, 2020
Thomas B. Russell Western District of Kentucky / 6th May 19, 2015 May 18, 2022
George Z. Singal District of Maine /  1st May 19, 2019 May 18, 2026
John J. Tharp, Jr. Northern District of Illinois / 7th May 19, 2018 May 18, 2025

 

The Process

Keep in mind that the main purpose of a FISA application is surveillance of a foreign power or an agent of a foreign power.

The entire FISA application process is an interactive one, with the Court assigning a legal team to meet with government officials. Together they address issues and/or legal concerns. The Court’s staff may suggest the addition or omission of information to or from the application.

As a result of its secret nature due to the need to protect classified national security information, many today believe the Court “rubber-stamps” anything and everything that comes before it. Because the public generally hears of only the approved applications with high-profile outcomes and not those that were denied, there’s often a feeling that no real checks and balances are in place.

To the contrary, though, in 2017, for example, the FISA court did indeed reject twenty-six applications. In the same year they denied parts of fifty applications and modified 391 others sought by the government. 1,147 applications were approved without modifications of any kind. So not quite a rubber-stamping. Close, but not quite. It does make a difference when the Court works with the government in order to gain an approval.

Appealing a Decision

Should an application be denied by the FISA “judge of the week,” the government may not “judge shop” by seeking approval from one of the other sitting FISA Court judges. Instead, if still wanting to move forward, the applicant must submit an appeal to the Foreign Intelligence Surveillance Court of Review.

The Foreign Intelligence Surveillance Court of Review is composed of three federal district court or appeals court judges. Like the FISA Court judges, FISCR judge are selected by the Chief Justice of the United States. It is the responsibility of the Foreign Intelligence Surveillance Court of Review to review the decisions of the FISA Court.

Again, speaking of rejected applications, instead of denying them due to “problems,” a FISA Court judge sometimes opts to to allow applicants to revise their submissions, or to totally withdraw and resubmit with the information the court feels it needs in order grant an approval. It’s sort of like a school teacher helping a student achieve an “A” on a test by supplying the correct answers.


*This article contains just a brief nibble into the inner workings of the FISA Court. Trust me, one could spend days studying what they do and why they do what they do. It’s confusing to say the least. But one things is certain, if the the government “wants you” they’re gonna get you.

By the way, please do not interpret this post as one of a political nature. I do NOT discuss politics or offer opinions about politics or politicians. That’s a big NO, NO, and NO! Please save those discussions for other sites.

Thanks, and I hope your holidays are as happy as possible. So far ours have been quite pleasant.

 

I’m an voracious reader which means I’m rarely without a book close at hand. It’s an addiction. I have to have my word fix every day. I have books in my office, on my nightstand, in the kitchen (I sometimes read while I’m cooking dinner, between stirs and seasonings), in my truck, in bed, etc. Actually, my day ends with a bit of reading before closing my eyes to sleep.

I like different genres, especially literary and historical fiction, but a good mystery/thriller/suspense story is hard to beat. After all, who doesn’t love a well-written and convoluted whodunit?

Recently Read

I recently completed Ordinary Grace, a beautifully-told emotional tale by William Kent Krueger (highly recommended). It’s a literary novel that will linger in your mind for quite a while after devouring the final page.

Krueger’s Ordinary Grace takes us into a world where a boy becomes an adult far before his time. It’s murder, betrayal, and lies that send him on a convoluted path that bypasses what should have been a childhood filled with innocence.

And, speaking of innocence …

When Fiction and Real-Life Collide

I’m currently deep into John Grisham’s new book The Guardians, a tale about a group of lawyers who fight for the wrongly imprisoned—innocent men and women who’re serving hard time for crimes they didn’t commit. Along his journey, the lead character finds the paths leading to justice for his clients are pockmarked with danger.

The writing and voice in this novel are stellar.

As I plow through The Guardians, nearly every page reminds me of Ray Krone, a man who served 10 years on death row for a murder he didn’t commit. Some of you may recall that Ray wrote of his horrible experience here on this blog in an article titled Ray Krone: A Decade On Death Row. 

Ray’s story and Grisham’s fictional tale run parallel to the current state of courts in the U.S., where criminal suspects, due to massive caseloads, are pushed through the system at near blinding speeds, rates that move more quickly than the science that’s often used to place them behind bars.

Bite-Mark Evidence

In Krone’s case, his conviction was based solely on bite-mark evidence, “science” that, like hair comparison, has been found to be unreliable. In fact, approximately three dozen or so exonerations have resulted from a re-examination of cases whose basis or, basis in part, for conviction were on the forensic comparison of bite marks.

For example, the cases of William Richards in California, who spent 25 years behind bars for his wife’s murder, and Keith Allen Harward in Virginia, who was sentenced to 33 years behind bars for a rape and murder. And then there’s our friend Ray Krone, an innocent man who was was 35-years-old at the time of his arrest, and didn’t walk as a free man again until the age of 45. All based on what many now call junk science.

Grisham’s book is an eye-opening read. It’s also a tale that’ll keep the reader turning page after page, hoping the attorneys will find a way to have their clients’ cases re-examined (a larger than massive uphill battle). And with the turn of every page I can’t help but think of Ray’s ordeal, sitting behind bars waiting to be put to death for a crime he didn’t commit. Imagine being confined in a concrete and steel box without sunshine or fresh air, with no control whatsoever of your own life and how you’ll live it. Grisham, I think, captures a great deal of this, including bite-mark evidence, in the book.

I also wonder how many more innocent people are in circumstances similar to the characters in Grisham’s book, and those who, like Ray Krone, wake up each day one step closer to the electric chair, gas chamber, or cocktail of drugs designed to kill. And, even more horrible is to wonder not if, but how many innocent people have already been executed.


 

“Cullen Post travels the country fighting wrongful convictions and taking on clients forgotten by the system. With Quincy Miller, though, he gets far more than he bargained for. Powerful, ruthless people murdered Keith Russo, and they do not want Quincy Miller exonerated.

They killed one lawyer twenty-two years ago, and they will kill another without a second thought.”


“‘Ordinary Grace’ is a brilliantly moving account of a boy standing at the door of his young manhood, trying to understand a world that seems to be falling apart around him. It is an unforgettable novel about discovering the terrible price of wisdom and the enduring grace of God.”

  • New York Times bestseller
  • Winner, Edgar Award for Best Novel
  • Winner, Anthony Award for Best Novel
  • Winner, Macavity Award for Best Mystery Novel
  • Winner, Barry Award for Best Novel
  • School Library Journal Best Book of 2013

The writer, a lovely woman who writes as Esther Neveredits and who shares her office with seven cats of various sizes and personalities, opened the first chapter of her first book with the following passage.

“Detective Barney Catchemall followed the cop killer, a man named Folsom Blue, across seven states and forty-eight jurisdictions, to a house in Coolyville, California where he shot Blue in the arm with a single round fired from his department-issued semi-automatic revolver. He bandaged his prisoner’s wound (just a nick) and then brought him back to the city where the homicide took place and where he’ll stand trial before the Grand Jury on a charge of Homicide 1.

He’d been tried for the Homicide 1 charge once before but was found not guilty and set free with a clean record. However,  the vindictive DA decided to try him again, hoping for a more suitable outcome, a conviction, which was practically guaranteed the second time around since the hardworking prosecutor personally handpicked the jury members … twelve badge bunnies. And, as soon as the paperwork was complete, he had plans to seize Blue’s oceanfront condo and his yacht. It was a good day. A good day indeed.”

So, did Ms. Neveredits have her facts straight? Yes? No?

Fortunately, and unlike Esther (bless her heart), most writers are pretty savvy when it comes to writing about cops and criminals and everything in between. And those who have questions … well, they typically ask an expert to help with the details. Or, they attend the Writers’ Police Academy where they’ll receive actual police training—driving, shooting, door-kicking, crime scene investigation, classes on the law and courtroom procedure, and so much more, and it’s all designed for writers.

But let’s return to Esther’s paragraph. What did she get wrong? The better question is how many things did she get wrong and in so few words?

  • Is there an official charge of Homicide I?
  • Are police officers permitted to cross jurisdictional boundaries, shoot a suspect, and then bring them back to stand charges?
  • Do Grand Juries try criminal cases?
  • Can a defendant be tried twice for the same crime?
  • Can a prosecutor continue to bring charges against someone over and over again until they get the results they seek—a conviction?
  • Semi-auto revolver? Is there such thing as a semi-auto revolver?
  • What the heck is a badge bunny?

Okay, let’s dive right in.

Just say no to “Homicide 1”

OLYMPUS DIGITAL CAMERA

It is Murder that’s the unlawful killing of another person. The crime is usually deliberate or committed during an act that showed total disregard for the safety of others.

“I understand that murder is a crime,” you say, but … what’s the difference between murder and homicide? Don’t they share the same meaning? Is there a difference?

Yes, of course there’s a distinction between the two, and the things that set them apart are extremely important.

Again, murder is the unlawful killing of a person, especially with malice aforethought. The definition of homicide encompasses ALL killings of human beings by other humans. And certain homicides are absolutely legal.

By the way, animals (horses, dogs, pigs, cows, chickens, etc.), do not fall into the category of “all killings of human beings by other humans.” Therefore, there is no charge of murder for killing an animal. There are other laws that apply in those instances, but not, “Farmer Brown received the death penalty for murdering Clucky, his prized rooster.”

Anyway, yes, some homicides are indeed, L.E.G.A.L., legal.

Another term/crime you should know is felony murder. Some of you attended a popular and detailed workshop about this very topic at the Writers’ Police Academy.

To get everyone’s attention, a bank robber fires his weapon at the ceiling. A stray bullet hits a customer and she dies as a result of her injury. The robber has committed felony murder, a killing, however unintentional, that occurred during the commission of a felony. The shooter’s accomplices could also be charged with the murder even if they were not in possession of a weapon or took no part in the death of the victim.

Also, Manslaughter – Even though a victim dies as a result of an act committed by someone else, the death occurred without evil intent.

While attending a mind-numbing car race where drivers made loop after loop after loop around an oval dirt track, a quite intoxicated and shirtless Ronnie Redneck got into a rather heated argument with his best buddy, Donnie Weakguy.

Donnie Weakguy

During the exchange of words, Weakguy begins yelling obscenities and with the delivery of each four-letter word he jabbed a bony index finger into Redneck’s chest. Redneck , a man of little patience, took offense at the finger-poking and used both hands to shove Weakguy out of his personal space. Well,  Weakguy, who was known countywide for his two left feet, tripped over his unconscious and extremely intoxicated girlfriend, Rita Sue Jenkins-Ledbetter, and hit his head on a nearby case of Budweiser. He immediately lost consciousness and, unfortunately, died on the way to the hospital as a result of bleeding inside the skull. Weakguy’s death was not intentional, but Ronnie Redneck finds himself facing manslaughter charges.

To address Ms. Neveredit’s additional missteps:

Jurisdiction – A law enforcement agency’s geographical area where they have the power and authority to enforce the law. The location is typically the area where the officer is employed and sworn to enforce the law. A city officer’s jurisdictional boundary is within the city limits (In most areas tthere is small allowance that extends beyond the city limits where officers are legally permitted to make an arrest.

Sheriffs and their deputies have authority in the county and any town or city within those boundaries, state police—anywhere in the state, federal agents—anywhere within the U.S. and its territories. To learn more about the exceptions please click over to my article titled Jurisdictional Boundaries: Step Across This Line, I Dare You.

Grand Jury – A panel of citizens selected to decide whether or not probable cause exists to charge a defendant with a crime. The Grand Jury hears only the prosecution’s side of the story. The defense is not allowed to present any evidence. In fact, the defense is not allowed to hear the testimony offered by the prosecution.

A Grand Jury does NOT try cases

Grand Jury members meet in secret, not in open courtrooms. Now you know why …

Asset Forfeiture – The government is allowed to seize property used in the commission of a crime. Many police departments benefit from the forfeiture of items such as, cash, cars, homes, boats, airplanes, and weapons. These items may be sold at auction, or used by the police.

For example, drug dealers use a 2010 Mercedes when making their deliveries. Police stop the car and arrest the occupants for distribution of heroin. Officers of a joint task force seize the car and subsequently fill out the proper asset-forfeiture paperwork. The vehicle is later forfeited (by the court) to the police department’s drug task force. They, in turn, assign the vehicle to their drug task force where officers use it as an undercover car. Other assets (again the items must be fruits of the illegal activity) are also seized and sold and the proceeds are divided among the agencies who participated in the bust and prosecution—prosecutor’s office, local police departments with officers assigned to the task force, etc.

Double jeopardy – The Fifth Amendment rule states that a person cannot be made to stand trial twice for the same offense.

Badge Bunny – A woman or man who is over-the-top romantically interested in police officers and firefighters, and pursues them relentlessly. And I do mean REE-Lentlessly. They sometimes follow officers around while they’re on duty. The eat in the same restaurants. Watch officers from afar. Bring baked goods to the police department. Call in false reports that bring officers to their homes. Stand or park nearby the police department during shift changes. Make friends with dispatchers, hoping they’ll help get them closer to the officers who make their stalking hearts go pitter-patter. They drive fast, hoping an officer will stop them for speeding, an opportunity to flirt. And, well, you get the idea. REE-Lentless.

 

There’s an old cop saying, “The badge will get you a bunny, but the bunny will eventually get your badge.”

* Badge Bunnies have been assigned a variety of nicknames by officers, such as beat wives, holster sniffers, and lint (because they cling to uniforms).

Now, a final thought …

Here’s a easy rule of thumb to remember that’ll help to sort out the murder/homicide issue.

  • All murders are homicides, but not all homicides are murder.

See, not confusing at all …

WAIT! We forgot to address the semi-automatic revolver. Is there such a thing? Well, typically the answer would be no. However …

 

See, I told you the only things consistent in police work and the law are the inconsistencies therein. And that’s a fact … maybe.

 

Most of us are familiar with famous forensic scientist Dr. Henry Lee. I, in fact, I have a couple of books on my office shelves, reference material that features his renowned work. He’s practically a guru when it comes to his word in a court of law, as it pertains to crime scene evidence.

Dr. Lee’s word had been golden until a recent case in Connecticut showcased a crack in the manner as to how he collects and examines crime scene evidence. As a result, his character came under fire.

Sure, mistakes happen because Dr. Lee, like the rest of us, is merely human. But when those errors send potentially innocent people to prison for decades at a time before a third party discovers that an expert, especially one of Dr. Lee’s caliber, offered incorrect testimony during a murder trial, well, it’s nothing short of inexcusable. The facts in this case speak for themselves. Someone goofed and it caused two men to spend the past three decades behind bars.

The Case

Two men, Sean Henning and Ralph Birch, were convicted for the horrific murder of Everett Carr, a victim who was stabbed 47 times. His attackers also slit the man’s throat and then tracked Carr’s blood throughout the house.

Henning and Birch were sent to prison based partially on the testimony of Dr. Lee.

Dr. Lee testified that a towel in the victim’s bathroom had a small speck on it, a spot that he had tested and found was “consistent with blood.” Dr. Lee’s word is golden, right?

However, the Innocence Project, after taking the case, offered that the state forensic laboratory revealed the towel had not been tested prior to the original trial. And, in a shocking discovery, they learned that when the lab did finally test the towel for DNA they determined the substance (the spot) on the towel was not blood after all. A KEY piece of evidence.

So how was it that Dr. Lee arrived at his conclusion regarding the spot on the towel found in a second floor bathroom? The renowned expert simply relied on the results of a presumptive field test, a chemical that turns blue in the presence of blood. But, presumptive field tests are used merely as an indication of that the substance is probably blood, drugs, etc. It is only when a full test in a laboratory is performed that can confirm the actual ID of a substance.

Field tests are not always 100% accurate. They do, however, provide probable cause which points an official in a certain direction—to pursue the notion that blood or drugs are present, or not (to make preliminary conclusions). Proper and formal lab tests are a must if the substance in question is to be introduced in court as evidence.

So what happens when officers and experts such as Dr. Henry Lee offer inconsistent and/or inaccurate and misleading evidence?

Last Friday, Connecticut’s highest court ruled that Sean Henning and Ralph Birch should get a new trial.

In the decision, Justice Richard Palmer wrote, “It is inarguable that Lee, as the representative of the state police forensic laboratory, should have known that the bathroom towel had not been tested for blood. He, like any such witness, had an affirmative obligation to review any relevant test reports before testifying so as to reasonably ensure that his testimony would accurately reflect the findings of those tests.

To conclude otherwise would permit the state to gain a conviction on the basis of false or misleading testimony even though the error readily could have been avoided if the witness merely had exercised due diligence.” 

The Appeals Court said, “We agree with the petitioner that, contrary to the determination of the habeas court, he is entitled to a new trial due to the state’s failure to alert the trial court and the petitioner that Lee’s testimony was incorrect, and, therefore, we reverse the judgment of the habeas court.” 

And just like that, after a 57-year career of investigating over 8,000 cases, a tiny stain on a towel instantly became a large stain on the record, reputation, and the integrity of one of the world’s leading forensic experts.

After serving 30 years in prison, Henning has been released on probation. Birch remains incarcerated at the Osborn Correctional Institution. Meanwhile, prosecutors must decide whether or not the two men should face a new trial.

Dr. Lee adamantly states he did nothing wrong.

The courts and the two men who were tried and convicted and imprisoned based mostly on Lee’s testimony back in the late 1980s, well, they’d probably disagree with Dr. Lee’s self assessment.

 

Convicted serial killer, Timothy Spencer, the Southside Strangler, appealed his death sentence. He claimed that he was factually innocent, scientists did not adequately perform the DNA testing in his case, and that DNA testing is a flawed science. Were Spencer’s claims wrong? Is DNA testing flawed?

Spencer also challenged the facility that performed the DNA testing. The court found no flaws in their procedures.

Landmark Case – 1st Death Sentence in the U.S. Based on DNA Evidence

Since so many writers craft stories involving serial killers and other murderers, I thought you would perhaps be interested in seeing a small part of the process involved in those cases as they make their way through the legal system.

* Spencer was the first person in the U.S. sentenced to death based on DNA evidence. This was a landmark case in the United States. I served as a witness to Spencer’s execution via electric chair. Patricia Cornwell’s first book, Post Mortem, was based on Spencer’s case and of the police investigation.

The following paragraphs are excerpts from Timothy W. Spencer’s appeal to The United States Court of Appeals, 4th Circuit. His argument – The DNA testing was flawed.

*WARNING – Parts of the text are quite graphic*

5 F.3d 758

Timothy W. SPENCER, Petitioner-Appellant,
v.
Edward W. MURRAY, Director, Respondent-Appellee.

No. 92-4006.

United States Court of Appeals,
Fourth Circuit.

Argued Oct. 28, 1992.
Decided Sept. 16, 1993.

J. Lloyd Snook, III, Snook & Haughey, Charlottesville, VA, argued (William T. Linka, Boatwright & Linka, Richmond, VA, on brief), for petitioner-appellant.

Donald Richard Curry, Sr. Asst. Atty. Gen., Richmond, VA (Mary Sue Terry, Atty. Gen. of Virginia, on brief), for respondent-appellee.

Before WIDENER, PHILLIPS, and WILLIAMS, Circuit Judges.

OPINION

WIDENER, Circuit Judge:

1 – Timothy Wilson Spencer attacks a Virginia state court judgment sentencing him to death for the murder of Debbie Dudley Davis. We affirm.

2 – The gruesome details of the murder of Debbie Davis can be found in the Supreme Court of Virginia’s opinion on direct review, Spencer v. Commonwealth, 238 Va. 295, 384 S.E.2d 785 (1989), cert. denied, 493 U.S. 1093, 110 S.Ct. 1171, 107 L.Ed.2d 1073 (1990). For our purposes, a brief recitation will suffice. Miss Davis was murdered sometime between 9:00 p.m. on September 18, 1987 and 9:30 a.m. on September 19, 1987. The victim’s body was found on her bed by officers of the Richmond Bureau of Police. She had been strangled by the use of a sock and vacuum cleaner hose, which had been assembled into what the Virginia Court called a ligature and ratchet-type device. The medical examiner determined that the ligature had been twisted two or three times, and the cause of death was ligature strangulation. The pressure exerted was so great that, in addition to cutting into Miss Davis’s neck muscles, larynx, and voice box, it had caused blood congestion in her head and a hemorrhage in one of her eyes. In addition her nose and mouth were bruised. Miss Davis’s hands were bound by the use of shoestrings, which were attached to the ligature device. 384 S.E.2d at 789.

3 – Semen stains were found on the victim’s bedclothes. The presence of spermatozoa also was found when rectal and vaginal swabs of the victim were taken. In addition, when the victim’s pubic hair was combed, two hairs were recovered that did not belong to the victim. 384 S.E.2d at 789. The two hairs later were determined through forensic analysis to be “consistent with” Spencer’s underarm hair. 384 S.E.2d at 789. Further forensic analysis was completed on the semen stains on the victim’s bedclothes. The analysis revealed that the stains had been deposited by a secretor whose blood characteristics matched a group comprised of approximately thirteen percent of the population. Spencer’s blood and saliva samples revealed that he is a member of that group. 384 S.E.2d at 789.

4 – Next, a sample of Spencer’s blood and the semen collected from the bedclothes were subjected to DNA analysis. The results of the DNA analysis, performed by Lifecodes Corporation, a private laboratory, established that the DNA molecules extracted from Spencer’s blood matched the DNA molecules extracted from the semen stains. Spencer is a black male, and the evidence adduced at trial showed that the statistical likelihood of finding duplication of Spencer’s particular DNA pattern in the population of members of the black race who live in North America is one in 705,000,000 (seven hundred five million). In addition, the evidence also showed that the number of black males living in North America was approximately 10,000,000 (ten million). 384 S.E.2d at 790.

5 – On September 22, 1988 a Richmond jury found Spencer guilty of rape, burglary, and capital murder. The jury unanimously fixed Spencer’s punishment at death, which was affirmed on direct appeal. Spencer then filed a petition for habeas corpus with the state trial court, which was dismissed. He appealed to the Virginia Supreme Court, but because his appeal was filed one day out of time, the Virginia Supreme Court refused the petition. Spencer then filed a petition for a writ of habeas corpus with the United States District Court for the Eastern District of Virginia. The district court denied his petition. Spencer v. Murray, No. 3:91CV00391 (E.D.Va. April 30, 1992).

6 – On appeal, Spencer raises essentially five issues1: (1) the DNA evidence in this case is unreliable; (2) defense counsel was denied an opportunity to adequately defend against the DNA evidence because the trial court denied a discovery request for Lifecodes’ worknotes and memoranda, the trial court refused to provide funds for an expert defense witness,2 and the prosecution did not reveal evidence of problems with Lifecodes’ testing methods; (3) the trial court should not have admitted the DNA evidence; (4) the prosecution improperly struck Miss Chrita Shelton from the jury for racially-motivated reasons as prohibited by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); and (5) the future dangerousness aggravating factor in Virginia’s capital sentencing scheme is unconstitutionally vague.

* Spencer’s major attack was on the DNA testing. I’ve inserted photos of the same type DNA testing  (electrophoresis, or gel testing) that Spencer claimed was faulty.  These photos are mine—I was the photographer. These were not part of the appeal. 

Spencer’s argument boils down to an assertion that the DNA results were flawed and he was wrongly convicted. This is a claim of factual innocence. The errors he points to–potential errors in the results of the DNA test–are errors of fact, not law.

… Specifically, Spencer points to a laundry list of problems that might have occurred with his DNA test, including:

1 – Bandshifting that may have occurred because the tests were not run on same gel (list continues below images);

DNA testing by electrophoresis (gel testing) … the process

Weighing the agar gel.

Mixing the gel with water.

Gel in chamber.

Forensic Facts

Injecting DNA into the gel.

Attaching electrodes to the chamber.

Introducing electric current to the gel.

Completed gel is placed onto an illuminator for viewing.

 Gel on illuminator.

*My thanks to Dr. Stephanie Smith for allowing me to hang out in her lab to take the above photos.

Completed gel showing DNA bands

DNA bands

Spencer’s claims against DNA continue:

2 – Cross-contamination or bacterial contamination of the samples because Lifecodes’ procedures do not guard against these threats;

3 – Invalidity because of the lack of data on the reliability of DNA testing of degraded forensic samples;

4 – Incorrect matching because visual inspection, rather than computer calculations, were used to declare a match;

5 – Invalidity that may have resulted from potentially poor quality control or proficiency standards;

6 – Impossibility of verifying results because Lifecodes did not record what voltage they applied to gel;

7 – Inability to know whether Lifecodes properly performed tests because there are no standards for licensure or required tests that labs must complete;

8 – Improper testimony at trial about the statistical likelihood of finding someone else with same DNA type because of potentially improper application of the product rule;

9 – Lack of validation studies to prove reliability of DNA testing in forensic setting and of using sperm to DNA type; and

10 – Possible inaccuracies resulting from Lifecodes’ use of certain probes

Spencer repeatedly urged, in his brief and at oral argument, that the main reason the DNA evidence in this case was found to be admissible is because it was “too new” to have been criticized, because the criticisms were published after his trial, and because Spencer was, according to counsel, the first person ever convicted and sentenced to death, using DNA evidence, in Virginia.

The Virginia State Supreme Court ruled that the DNA testing had been performed properly and denied Spencer’s appeal.


I sat twenty-feet or so from Spencer as he was put to death in Virginia’s electric chair. The procedure was gruesome, to say the least.

A few minutes after the final burst of electricity surged through Spencer’s body, time to allow the body to cool enough to allow a physical examination, the attending physician checked for signs of life. After a moment or two he looked up from Spencer’s body and said to the warden, “This man has expired.”

It was over.

Later, an unmarked DOC van carrying Spencer’s body departed the prison, passing through a crowd of people lining the roadway outside the main gate—protesters, and the many officers from state and county agencies who were assigned to maintain peace between the pro and anti death penalty groups. Both groups went silent as the van exited the prison gates and passed by on its way to the state morgue in Richmond where an autopsy was scheduled to be performed.

I knew how it felt to stand there watching those vans pass because I’d been assigned to the protection detail several times in the past. One of those times was for the execution of Roger Keith Coleman, a man convicted and sentenced to death for the rape, murder, and beheading of his sister-in-law.

Tension was high the night of Coleman’s execution and the crowds on both sides of the death penalty debate were large and angry.

Coleman’s case drew international attention. He, a coal miner from the mountains of Virginia, pleaded his case on talk shows and in magazines and newspapers. He was even featured on the cover of Time magazine. Pope John Paul II attempted to intervene, pleading to block the execution, and thousands upon thousands of protestors from around the globe sent letters to the governor of Va. Many made phone calls to his office.

But, DNA tests proved that Coleman was indeed the perpetrator of his sister-in-law’s brutal rape and murder. He submitted to a polygraph on the day of his execution as a last attempt to prove that he’d not committed the horrible crime. He failed the test.

Coleman’s final meal was a dinner of pepperoni pizza, fudge cookies, and a 7-Up. He went to “the chair” still proclaiming his innocence.

After Spencer’s execution concluded, prison officials drove me out and away from the facilty to my unmarked car I’d earlier parked behind the state police area headquarters. They’d picked me up there and driven me to the prison to prevent onlookers from knowing that I was to be a witness, a standard procedure.

As the prison van containing Spencer’s body passed by the protesters, I was already on my way home.