Issue 327
March 11, 2005
v Fatal lies by Gina Piccalo
v New Jersey Prosecutor Finds He’s the One Investigated by Leslie Eaton
v Dissing the Dead to Save the Accused by Jonathan Turley
v Did Racist’s Hatred for Judge Lead to Murder? by Stephen Braun
v Death Row Often Means a Long Life by Rone Tempest
The Appellant was convicted of the first degree murder in the death of her husband. The Crown alleged that the Appellant had poisoned her husband, Scott Dell, with a mixture of antifreeze and wine. The central issue during her trial was whether the death resulted from a murder or suicide.
The Appellant married the deceased in 1971. They has three children. In 1992, the Appellant met Gay Doherty at an incest survivor’s group and a lesbian relationship began. The Appellant separated from the deceased later that same year. They fought over the custody of their three children, during the course of which the Appellant falsely alleged that her husband had sexually and physically abused their children. Mr. Dell was awarded custody.
In 1994 Mr. Dell was diagnosed with cancer which went into remission following treatment. However, Mr. Dell was left with an altered taste sensation due to the treatment. In 1995, the Appellant told her real estate agent and her mortgage broker that her husband was dying of cancer and that she expected to inherit their farm property.
According to the Crown’s theory, the Appellant gave her husband a 1.5 litre bottle of Piat d-Or laced with antifreeze on December 28, 1995, when he went to the Appellant’s house. She induced Mr. Dell to drink the wine during a lengthy telephone conversation which lasted from 7 or 9 p.m. to 4 a.m. Mr. Dell was found dead on the floor in his son’s bedroom wearing nothing but a sweater. Downstairs by the telephone, a bottle of wine was located as well as a glass containing an oily, bright yellow/green liquid, as well as three paged of handwritten notes. The time of death was later estimated to be 6 a.m.
Police assumed Mr. Dell’s death was a suicide. The coroner erroneously found the cause of death to be a rupture of a cancerous tumour. The Appellant made efforts to have Mr. Dell cremated, however his family insisted on a post-mortem. The post-mortem revealed Mr. Dell died of ethylene glycol poisoning.
For a year and a half following Mr. Dell’s death, police considered the death to have been a suicide. After the Appellant and her new lover, Fillmore, broke up in 1997, Fillmore provided statements to police implicating herself and the Appellant. In August 1997, Fillmore died in a suspicious fire at her apartment. The Appellant awaits trial for first degree murder with respect to Fillmore’s death.
On Appeal, counsel for the Appellant argued that the verdict for first degree murder was unreasonable, and that the trial judge effectively ignored the physical evidence at the scene of death, which together with the rest of the evidence strongly supported the defence theory of suicide. The Appellant’s counsel relied on just some of the following points:
The test to be applied in determining whether a verdict is unreasonable requires the appellate court to independently examine and assess the evidence and decide whether, on a totality of the evidence, a properly instructed jury, acting judiciously, could have convicted. The appellate court must thoroughly review, analyse and, within the limits of appellate disadvantage, weigh the evidence. It is not the Appellate Court’s function to retry the case or to substitute their own view for that of the trial judge.
The Honourable Justice Sharpe, speaking for the Court of Appeal, held that the Court was not persuaded that the trial judge’s verdict in this case was unreasonable, by stating:
“I agree that in many respects the unusual circumstances of Scott Dell’s death pointed to suicide rather than murder. However, I disagree that suicide was the only reasonable conclusion that could be drawn from the evidence. The conclusion that the appellant murdered Scott Dell may not have been inevitable, but it certainly was not unreasonable.”
Justice Sharpe held that the trial judge did not err in rejecting the defence suicide theory by ignoring evidence that supported suicide. He stated:
“I do not agree with the submission that the trial judge failed to assess the Crown’s case against the physical evidence. He carefully reviewed the evidence of the crime scene, noting the defence suicide theory and describing the evidence as “puzzling”. I am satisfied that a fair reading of the trial judge’s reasons indicates that he was completely alive to the defence theory. The physical evidence of suicide could not be viewed in isolation. It had to be viewed together with the evidence pointing to murder…”
The Court of Appeal also rejected the Appellant’s application to introduce fresh evidence. The Appellant sought introduction of fresh evidence relating to Ms. Knott, an important Crown witness. The said evidence related to a false allegation made by Knott to police following the trial. Counsel for the Appellant argued that the evidence would seriously undermine Knott’s credibility and demonstrate a strong animus towards the appellant that would lead the trier of fact to reject her evidence.
Court reiterated the test for admission of fresh evidence on appeal from Palmer (1979).
The applicant must show that the evidence:
(1) could not have been adduced at trial through due diligence;
(2) is relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
(3) is reasonably capable of belief; and
(4) when taken with other evidence at the trial must reasonably be expected to have affected the result.
Justice Sharpe stated the evidence is not admissible. Were it admissible, it would be unreliable and unpersuasive and unable to meet the 3rd and 4th branches of the Palmer test.
The appeal was dismissed.
The following article appeared on latimes.com on March 9,
2005:
Fatal
lies
Angelina
Rodriguez is many things. Wife, mother, sister, daughter. She is also a
convicted killer.
By Gina
Piccalo
Times Staff
Writer
CHOWCHILLA,
Calif. — Angelina RODRIGUEZ furrows her dark brow and places her hands over her
eyes, smearing the mascara and eyeliner she had so carefully applied. She has
been talking for hours, the drama of her stories escalating with every telling,
her role consistent in every one of them — the victim. She describes herself as
a "people person," "the mothering type," an easy target for
domineering, unfaithful men. "I'm not a violent person," she says.
"That is not who I am."
Yet
Rodriguez lives on death row here at the Central California Women's Facility,
convicted of killing Frank Rodriguez, her husband of four months, in September
2000 by feeding him oleander soup and so much antifreeze-laced Gatorade that,
as the medical examiner noted, the chemical seeped from his eyes. Seven years
earlier, investigators say, she killed her toddler daughter by shoving a piece
of pacifier down her throat, then successfully sued the manufacturer for its
"faulty" product. Money was the motive in both cases. In his 20 years
on the bench, Los Angeles County Superior Court Judge William R. Pounders, who
sentenced Rodriguez, said he'd "never seen a colder heart."
It was a
sensational crime, the stuff of pulp fiction. Court TV recently memorialized it
with a moody reenactment titled "The Persistent Wife." And Rodriguez
hopes the story's cinematic potential piques Hollywood's interest enough to
benefit her appeal, which is still years away. For investigators, it was
"a once-in-a-career case." Police had no physical evidence linking
Rodriguez to the murder. Instead, it was her bizarre behavior that convinced
them — and a jury — of her guilt and ultimately resulted in a death sentence.
Rodriguez is
one of 15 women on California's death row, the nation's largest. They represent
a fraction of the state's 637 death row inmates, and most expect to die of
natural causes, not lethal injection. A woman hasn't been executed here since
1962; a man was executed Jan. 19. Despite America's preoccupation with serial
killers and random murder, most women on the row are like Rodriguez, sentenced
for killing children and husbands. Yet the real intrigue of this gothic tale
lies in the portrait of the woman, not the crime.
She was so
capable of blending into suburban life that even her closest relatives remember
her as a caring mother who was easily bullied. She was a romantic, they say,
despite a deeply troubled childhood and a series of bad marriages. She cried
when her dog fell ill. She was so devout that she often wept as she prayed. She
was a pretty girl whose only fault, it seemed, was an insatiable need for
affection.
With a
"high average" IQ of 112, Rodriguez is intelligent. But her doctors
contend that for most of her life she has lived amid emotional chaos,
overwhelmed by self-loathing and shame, the result of repeated incest and
molestation in childhood. Still, Rodriguez was rarely out of work and never
without a boyfriend. She joined the Air Force at 20 and later the Army National
Guard, managed a fast-food restaurant, sold insurance door-to-door and earned a
cosmetology license. She married four times and was engaged twice — each man,
she says, more demanding than the last.
Then there
were the lawsuits. In six years, she won about $286,000 in settlement payments.
She accused a fast-food restaurant of sexual harassment, Target of negligence
after she slipped and fell in a dressing room and Gerber Co. of product
liability after her daughter's death. When she was arrested in February 2001,
investigators say, Rodriguez was preparing to sue her landlord for asbestos
poisoning.
Sorting fact
from fiction in Rodriguez's life has long been difficult for those closest to
her — and for Rodriguez. "She wanted a good life," says Rodriguez's
sister Gigi Colaiacovo. "But I also believe that she felt that the world
owed her something."
Rodriguez
says all she ever wanted was a loving family. Yet each time she came close to
that dream, catastrophe struck.
"When
you try to sort through it all," says Rodriguez's former neighbor Betty
Hailey, "you just get tired of trying to find the truth."
She was a
'dreamer'
Childhood,
as Rodriguez recalls it, was a dark, confusing time. She grew up in the
working-class neighborhood of Rockaway Beach in Queens, N.Y., the younger
and more
troublesome of two daughters. Her father was Puerto Rican-born, a trucker and
cabdriver, who left the family. Her mother was a nurse who worked day and night
to send her daughters to Catholic schools and provide lessons in ballet,
cheerleading and basketball.
"My
sister was always the hopeful romantic," says Colaiacovo, now a real
estate comptroller in West Babylon, on Long Island. "She was definitely
the dreamer of the two."
The girls
were always surrounded by relatives. When their grandfather baby-sat them,
Rodriguez and her sister say, he molested her. The relationship began when she
was 2 and lasted through high school, resulted in an abortion and the creation
of an alter ego she named "Victoria." She told several relatives of
the abuse, she says, but nothing changed.
"She
allowed it to happen," Colaiacovo says. "She was always looking to be
accepted and looking to be 'Daddy's little girl.' " The grandfather abused
the other girls in the family, Colaiacovo says, but "we kind of stopped it
when it was supposed to be stopped."
Rodriguez
says she first attempted suicide at age 8 with some over-the-counter pain
relievers. At 16, hospital records show, she overdosed on sleeping pills and
was hospitalized for depression. At 19, she married and divorced a neighborhood
boy named Hector Gonzalez. After that, she says, she started "running ...
to find my place."
She moved to
Florida and enlisted in the Air Force. She fell in love with Tom Fuller, a
good-looking, athletic "Mr. Right," while both were based in
Colorado. Within three months, she was pregnant. They got married and moved to
Vandenberg Air Force Base near Lompoc. Two years later, Rodriguez was raising
her daughter Autumn and her premature newborn, Alicia. The baby's first four
months were spent in and out of the hospital with several health problems,
including bradycardia, an abnormally slow heartbeat. Yet Rodriguez remembers
this as the happiest time of her life.
"She
really seemed to be as grounded as I had ever seen her," Colaiacovo says.
"If she could have had any job she did perfectly, it was as a
mother."
Inside the
marriage, however, the relationship was disintegrating. Rodriguez became
especially protective of the girls. In an interview, Fuller says that she
became preoccupied with their afterlife. "They had to be christened,"
he says." 'Just in case anything happened.' "
On the
morning of Sept. 18, 1993, when Fuller was out of town on business, Alicia
choked to death on the plastic nipple of her pacifier. Rodriguez told police
she found the child dead in her crib, the pacifier's shield lying on the floor.
"They're going to pay for this," she said of the pacifier's
manufacturer, Gerber, according to police reports.
Weeks later,
Fuller learned that Rodriguez had purchased a $50,000 life insurance policy for
the child. But it wasn't until the investigation of Frank Rodriguez's murder
that Fuller recalled a waitress' warning, months before Alicia died, that the
pacifier had been recalled because the nipple sometimes separated from the
shield. That memory still plagues him.
"There's
times when all I want to do is see her dead," says Fuller of his ex-wife.
"Then there are times I'm just not 100% sold on it. And then maybe I'm in
denial that I could marry someone who could have done something like
that."
Colaiacovo
still can't believe her sister killed Alicia. Just the memory of those
accusations makes her cry. "There is no way," she says. "That is
ridiculous. I would stake my life on it." Colaiacovo sat through every day
of her sister's trial and sentencing, heard the wiretapped recordings of her sister
plotting to kill a witness, heard the judge call her coldhearted.
"She
really is a good person," she says. "I know that sounds ironic. She
wouldn't do anything to hurt anybody. If she did, in fact, do it, who knows
what she was thinking? She could never do something like that. She's not smart
enough. I can't imagine what would possess her."
During an
August interview, Rodriguez shed no tears as she recalled her daughter's death.
"If I'd wanted to kill my daughter," she said. "I could have
just let her die from the bradycardia."
In an
October letter for this article, however, her tone was tender. "I love my
girls more than anything or anyone," she wrote. "They are my breath,
my heart, my life. I had never felt so alive as I did with them. Finally, I had
the love I wanted." As for grief, she wrote, "it's not that I don't
feel it. Hell, sometimes it's screaming out so loud inside me, I get
sick."
Deception as
a way of life
After the
1993 death of Alicia, Rodriguez's world shifted radically. She and Fuller
divorced. They settled their case against Gerber for $750,000; Rodriguez got
about $250,000, according to court records. She bought a house, a car and a
boat.
Lying became
a way of life, according to friends, relatives and investigators. Friends say
Rodriguez started telling people she was pregnant with twins, even though most
of them knew she'd had an operation that left her infertile. When the babies
never arrived, she told them she had fallen down a flight of stairs and
miscarried. When she totaled her car, she said a boyfriend drove her off a
cliff.
She got a
cosmetology license, married a trucker named Don Combs, and then divorced him a
few months later, she says, because he was too possessive. She joined the Army
National Guard, fell in love with another man, who she says deserted her after
she loaned him $20,000.
"She
became flighty again," Colaiacovo says. Despite the settlement, Rodriguez
always had a hard-luck story for her family, she says. She always needed money.
"She is the boy who cried wolf," Colaiacovo says. "I definitely
lost trust in her."
Betty Hailey
met Rodriguez around 1997 at a school-bus stop. Rodriguez had just put her
well-landscaped, four-bedroom home in Paso Robles on the market, a house she
bought with the settlement money from Alicia's death. Hailey bought the house,
and soon the two women became friends. She was impressed by Rodriguez's
lifestyle — the cars, the clothes, the furniture. "Whatever she wanted,
she bought," Hailey says. They prayed together. They baby-sat for one another.
Rodriguez took Hailey on a cruise to Mexico. And when Rodriguez married Frank,
Hailey was her matron of honor.
Yet Hailey
says she never really trusted her impulsive friend. She wouldn't leave her
husband alone with Rodriguez because she suspected her neighbor might try to
seduce him. When Rodriguez found out Hailey's son was single, she invited
herself to his Washington, D.C., home for Thanksgiving. "I prayed with her
and I counseled with her, but to tell you the truth, I didn't know that much
about her," Hailey says.
Rodriguez
has been diagnosed with depression and anxiety disorders several times since
childhood. After her arrest, doctors concluded that she also suffered symptoms
of manic and borderline personality disorders but was competent to stand trial.
During jailhouse interviews with forensic psychiatrist William Vicary,
transcripts show that Rodriguez told him, "I have remorse in my heart....
I'm sorry for what happened to Frank." But she wouldn't acknowledge any
guilt.
"If I
admit responsibility, then I'll lose everything. I lose all hope," she
told Vicary.
"She'd
lose hope of ever having a chance for some kind of freedom or life,"
Vicary said in a September interview. "And she cannot stand she might lose
what little affection and support she has from her own family.... That's all
she's got left."
Joking about
murder
The
courtship of Angelina and Frank Rodriguez was so brief it shocked their friends
and relatives. They met in February 2000 at Angel Gate Academy in San Luis
Obispo, a boot camp for wayward youth operated by the California National Guard
and the Los Angeles Unified School District. They were platoon sergeants when
Angelina accused another staffer of sexual misconduct with a student. No one
but Frank believed her. Soon they were dating.
Frank was a
devout Christian who insisted they save sex for marriage; Angelina says they
spent a lot of time praying together. She wasn't in love, but Frank was smart,
grounded and loved Autumn.
On the
surface, they had a lot in common. The oldest son of six children, Frank also
grew up in a chaotic family, moving from Connecticut to Texas and finally
settling in central Illinois in the 1970s. His father, Jose Francisco
Rodriguez, was a doctor and, relatives say, a jealous, abusive man with a drug
and alcohol problem, who later deserted the family. His mother, Janet Baker,
was a lab technician who raised her children alone.
Relatives
say Frank was a quiet, trusting man who took responsibility for his siblings.
He left home to join the Navy, married a hometown girl, earned a teaching
degree from Southern Illinois University and tried to finish law school.
Eventually he became a teacher with an affinity for troubled kids.
After 14
years, his marriage to Judy Adams ended, devastating Frank. Baker says the settlement
left him penniless but desperate for a fresh start and a family of his own. He
joined a Pentecostal church and stopped drinking and smoking. He became a rape
hotline counselor, she says, even inviting one victim into his home who
ultimately tried to stab him. Later, Frank moved to San Luis Obispo and became
engaged to another teacher at Angel Gate, but, Baker says, she fell in love
with someone else and broke it off.
Then he met
Angelina. "He was looking for love," Baker says. "Someone who
would love him, for him."
Frank and
Angelina exchanged vows in an April 2000 ceremony at his small church in Paso
Robles. Within days, they moved to Montebello into a house they could barely
afford, given Frank's new teaching job at a local middle school. For a while,
life was stable. But Angelina says Frank became intolerably possessive and
overly strict with Autumn. He insisted on being the sole breadwinner. "He
was everything," she says. "I was nothing.... I just wanted
out."
Frank's
family says the trouble came from Angelina. "He was so patient," says
Frank's sister Carmen Pipitone. "He would have given her anything."
In July, at
Angelina's urging, Frank bought a $250,000 life insurance policy for himself
and made her sole benefactor. And, as her friends would later testify at her
trial, Angelina starting talking about killing Frank. "Well, he's got a
life insurance policy," she told one friend, according to prosecutor Doug
Sortino's opening statement. "I ought to just kill him and get it over with."
Everyone thought she was kidding. They joked about murder methods and told the
story of a woman arrested for using oleander to poison her husband, testimony
shows. "Whatever you do," one friend said, according to court
transcripts, "don't use oleander." They talked about some vicious
neighbor dogs who deserved to die by antifreeze-soaked hot dogs.
"Why
would anybody eat something with antifreeze?" Angelina asked, according to
prosecutors. "Don't you know?" said one friend. "It tastes
sweet. It says so right on the label."
In August,
Angelina says, she started an affair with Matt Morones, an ex-con and old
friend from Paso Robles. She says she swiped one of Frank's paychecks, hid the
money and made plans to live with Morones' family. Around the same time,
testimony shows, Frank found natural gas leaking from their dryer during a
weekend Angelina was away.
On
Wednesday, Sept. 6, 2000, Frank Rodriguez woke from a nap feeling ill — again.
Angelina later told police that it had been days since he'd felt like himself.
He'd had a headache and couldn't keep his food down. In fact, she told them,
he'd come home two months earlier with similar symptoms, suspicious that
someone at school was trying to poison him, and they had rushed him to the
hospital.
This time,
Angelina dragged him to the emergency room again. According to police, she told
the doctor, "I don't know what's wrong. I've tried everything I know. My
mom was a nurse. I tried. It didn't work." Food poisoning, the doctor
said. Go home, rest and drink lots of fluids, especially Gatorade.
So, Angelina
says, she put her husband to bed and for the next two days she and her daughter
Autumn nursed Frank with Gatorade and soup, every four hours. At about 3 a.m.
Saturday, Angelina says, she woke up to find Frank face down on the bedroom
floor, dead.
Days later,
she told Frank's mother she was pregnant with twins — a story she'd told
friends after the death of her daughter. "She wanted to know if I would
help her out with her maternity stuff, monetarily," Baker says. "I
said, 'Angelina, you bring me a report that says you truly are pregnant and a
DNA report that says that it's my grandson and then we'll talk.' "
At the
funeral, friends and relatives noticed that Angelina looked relaxed, even
content. She was telling people she suspected Frank had been poisoned by a
vengeful co-worker at Angel Gate. In the limo ride to the cemetery, Frank's
sister Shirley Coers asked: "How can someone just poison somebody?"
"There's lots of things you can use to poison people," Angelina told
her, according to Coers' testimony. "Botanical things. Oleander, for
example."
Investigators
say if it wasn't for Angelina's tenacity and greed, they may never have
determined what killed Frank. County toxicologists tested Frank's blood for all
the common poisons — PCP, heroin, methamphetamine, arsenic, cyanide — but found
none. And without a cause of death, police told her the insurance company
wouldn't release any money to Angelina.
Almost
immediately after Frank's death, according to investigators' transcripts, she
started referencing oleander and antifreeze. "It could be anything,"
she told investigators. "It could be the flowers on the road.... What the
heck are those? You know, they grow in the middle of the highway?"
She claimed
to have received an anonymous call on her cellphone from someone who knew how
Frank died. "All I heard was, um, 'Ask them about antifreeze,' " she
told them. "Does that help, you think? If they test [Frank] and say,
'Yeah, it's there, maybe that'll be enough for them to say, 'This is the cause
of death.' "
Toxicologists
took her recommendation. They determined Frank had received a massive dose of
antifreeze four to six hours before he died. Angelina was arrested a few weeks
later.
Investigators
never determined how Angelina got the poisons into Frank. He had been dead for
two days before they searched the house. They found oleander plants within
arm's reach of her back patio but no antifreeze.
"Just
the way we had to work the case, we had to lie to her," says Los Angeles
County Sheriff's Det. Brian Steinwand. "We had no witnesses. Our only
witness was her.... She provided us with the poisons. [County toxicologists]
check for standard ones, but they don't check for oleander and antifreeze. We
knew she was the only one alive that knew what poisons were used."
Tears and
excuses
As Angelina
recalls Frank's last days now, there are no signs of grief. She says he
committed suicide because she wanted a divorce. The marriage was so bad, she
says, she started mixing painkillers and alcohol, spending long afternoons
alone, sobbing. All of this, she says, points to her innocence.
"How
could I have gotten all that green goop into this intelligent man?" she
asks. "I might have been depressed. I might have been sad. But I'm not an
idiot."
But if she
thought Frank committed suicide, why did she tell police he had been poisoned
by a vengeful co-worker? Her answer: It was only in retrospect that she
realized how desperate Frank had become.
If she was
innocent, why did she try to arrange the murder of a witness in her case,
suggesting the killer use "what I killed my husband with ...
antifreeze"? Her answer: She was overmedicated, incoherent and didn't know
what she was saying.
What about
testimony from friends claiming she talked about killing Frank? Her answer: All
lies.
And why did
she take out a $50,000 life insurance policy on the 13-month-old just days
before the child's death? The insurance money was a college fund, she says.
When the
line of questioning creeps uncomfortably close to incriminating her, she stops
talking and stares at the wall. She rubs her temples and sighs loudly. Then she
puts both hands on the table and says, "I did not kill my husband. I did
not kill my daughter. I'm so tired of feeling guilty."
Most
everyone from Rodriguez's old life has cut ties with her. Only Rodriguez's
stepfather, Jose Rivera, who has paid for her paralegal studies, keeps in
touch. Still, for this article, she provided a long list of old friends and
close relatives in the hopes that they would attest to her character.
"Maybe," she says, "if they hear you aren't really looking to
prove my innocence, they will relax."
Today
Rodriguez has nothing but time. She can't afford an attorney. But even if she
could, there's not much one could do for her now. The California Supreme Court
won't even consider the automatic appeal of her case — which is required by law
after a death sentence — until 2009.
Rodriguez's
conviction has devastated almost everyone close to her. Her mother, Anita
Rivera, died of emphysema and pulmonary disease soon after Rodriguez was
sentenced to death. Fuller says their daughter, Autumn, who is now 13, is
tortured by the possibility that she may inadvertently have helped her mother
kill Frank. She recently told Rodriguez she never wants to see her again.
Colaiacovo
says she broke off contact with her sister after Rodriguez demanded costly care
packages — a television, a VCR and expensive perfume. This, she says, after the
family drained its savings to fund her defense. Still, Colaiacovo struggles
with guilt over not rescuing her little sister from their grandfather.
Rodriguez was never equipped to handle the harsh truths of the world, she says.
"I
don't think she had a true grip of reality," Colaiacovo says. "I
think she lived in a dream world. I think she made up stories and believed
them. Truly believed them." 'She provided us with the poisons. [County
toxicologists] don't check for oleander and antifreeze.'
* * * * *
The
following article appeared on nytimes.com on March 9, 2005:
New
Jersey Prosecutor Finds He's the One Investigated
By Leslie
Eaton
During two
colorful and sometimes controversial decades as the prosecutor in Monmouth
County, N.J., John A. Kaye has been the pursuer, going after drug dealers,
drunken drivers, killers and assorted creeps.
But now, the
pursuer has become the pursued, or at least the reviewed. The state attorney
general is looking into his conduct. Five of his investigators have been
summoned to appear before a federal grand jury. And a prominent state senator
says that Mr. Kaye should consider stepping down, contending that he has
"repeatedly betrayed the public trust and compromised the integrity of his
office."
This
scrutiny comes because some federal law enforcement officials believe that Mr.
Kaye deliberately interfered in an investigation into government corruption in
Monmouth. The United States attorney, Christopher J. Christie, has said
publicly that Mr. Kaye's actions forced the Federal Bureau of Investigation to
end its sting operation early, though not before it had enough evidence to
charge 11 local officials.
Mr. Christie
and Mr. Kaye, both Republicans, have long been at odds over the extent of
public corruption in the county, with Mr. Kaye insisting in a 2002 interview with
The Asbury Park Press that his territory "may be the least corrupt county
in this state." Subsequent criminal cases, including the most recent,
suggest otherwise.
Mr. Kaye
declined to be interviewed for this article. But in earlier conversations, he
denied interfering with the federal inquiry. Rather, he said, he was conducting
several investigations of his own that prompted him to question some of the
people who were subsequently arrested in the federal sweep.
Disputes
between local and federal prosecutors in New Jersey are not uncommon, though
seldom so public. But this disagreement has cast a harsh spotlight on the
career of the longest-serving county prosecutor in the state, with all of its
highlights (Mr. Kaye became the president of the National District Attorneys
Association in 1996) and darker moments, like losing two lawsuits against him
that cost the county hundreds of thousands
of dollars.
And it comes
as Mr. Kaye, 61, appears to be near the end of his career in law enforcement.
County prosecutors are appointed by the governor on the recommendation of local
officials and are confirmed by the State Senate. Mr. Kaye's term ends in June,
and for reappointment he would need the backing of the acting governor, Richard
J. Codey, a Democrat, who opposed his reappointment five years ago and has not
become a supporter since.
The prospect
of such an ending to Mr. Kaye's tenure saddens some of his supporters, like
John O. Bennett III, a longtime Republican state senator from Monmouth County
who was defeated in 2003 after a controversy involving his overbilling a local
township for legal work. He called it an innocent mistake; though Mr. Christie
opened a criminal investigation, Mr. Bennett has never been charged.
"I've
been a big fan of his," Mr. Bennett said of Mr. Kaye. "I hope this
does not taint what has been a stellar public service career."
But Mr.
Kaye's critics are saying, in essence, I told you so.
"I
really feel vindicated," said Larry S. Loigman, a lawyer in Red Bank who
has butted heads with Mr. Kaye for many years over the way he runs his office
and his attitude toward local corruption.
According to
his biography on his office's Web site, Mr. Kaye was a local boy who graduated
from the University of Scranton and the Dickinson School of Law, which is now
part of Pennsylvania State University. Admitted to the bar in 1968, he
practiced law in Freehold, the Monmouth County seat, before being appointed
prosecutor at the end of 1983.
Almost
immediately, he found himself involved in big cases, including prosecuting a
big insurance-fraud ring that killed racehorses. Over the years, his office
developed a reputation for aggressive prosecutions; he was also considered a
leader in pursuing cases involving hazardous waste or pollution.
More
controversial was his office's handling of the 1997 case of Samuel Manzie, who
as a 15-year-old molested and strangled an 11-year-old boy in nearby Ocean
County. He pleaded guilty and was sentenced to 70 years in prison.
But it
turned out that Mr. Manzie had himself been sexually abused in Monmouth by
Stephen P. Simmons, a pedophile he met over the Internet, and killed the child
shortly after Mr. Kaye's office sought his help in collecting evidence against
Mr. Simmons by secretly recording his phone calls with him.
Mr. Manzie
later rebelled, smashing the recording equipment and alerting Mr. Simmons.
Later, when
Mr. Kaye tried to prosecute Mr. Simmons, Mr. Manzie refused to testify, and
many of the charges were thrown out. In 1999, Mr. Simmons pleaded guilty to two
counts, criminal sexual contact and endangering the welfare of a child, and
remains in prison under New Jersey's Sexually Violent Predators Act.
Mr. Kaye has
always defended his handling of the Manzie case, which was a major topic at his
last confirmation hearings, in 2000.
Some lawmakers also remain rankled by what they consider his lack of
candor about two federal lawsuits brought by employees, back when he was
reappointed in 1994.
"There's
a pattern of his acting above the law in certain ways," said State Senator
John H. Adler, a Democrat from Cherry Hill, who is chairman of the Senate
Judiciary Committee and who voted against Mr. Kaye in 2000.
While he
would not call on Mr. Kaye to step down now unless the attorney general finds
that he did indeed interfere with the federal investigation, the senator said,
"It's probably the honorable thing for him to resign."
In 1993, a
federal jury in Trenton found that Mr. Kaye had defamed James W. Kennedy, who
had worked for him as an assistant prosecutor, and awarded Mr. Kennedy $100,000
in damages, which was upheld in 1995 by the United States Court of Appeals for
the Third Circuit.
In 1996,
that same appellate court also affirmed a jury finding against Mr. Kaye in a
lawsuit by Barbara A. Coleman, an investigator in his office.
The jury
found that she was repeatedly passed over for promotion because of her sex and
awarded her $365,000 from the county and, in an unusual move, $60,000 from Mr.
Kaye individually. Her lawyers were also awarded more than $100,000 in legal
fees.
The county
freeholders voted to pay Mr. Kaye's penalties and the costs of defending him.
(Mr. Loigman, the Red Bank lawyer, sued to block the county from picking up
those costs but lost.) Critics of Mr. Kaye say that he could have settled both
suits and saved taxpayers a great deal of money.
"He
cost us more than $1 million in defense and in judgments against him,"
said Ellen M. Karcher, a Democrat who replaced Mr. Bennett in the State Senate
and who is also likely to have a big influence on who replaces Mr. Kaye.
"Monmouth County residents deserve better," she said.
But the
criticism of Mr. Kaye that may sting the most these days is the suggestion that
he has turned a blind eye to corruption and government misdeeds.
His 2002
statement about the honesty of local officials followed the guilty plea of one
mayor for taking bribes; about 20 people have since been charged, indicted or
convicted or have pleaded guilty in corruption cases in the county. None were
prosecuted by his office.
Mr. Kaye,
for his part, told The Asbury Park Press last month that his office did indeed
investigate political corruption, citing the failed 1992 prosecution of John R.
Merla, the mayor of Keyport, who was acquitted of taking a bribe involving a
sewer hook-up.
Mr. Merla
was among the 11 local officials picked up by the F.B.I. last month. He was
accused of accepting at least $11,500 from a Florida-based contractor in return
for work. Mr. Merla has said he is innocent.
Before those
arrests, Mr. Kaye's office had interviewed Mr. Merla, along with a former
Keyport councilman who was also picked up in the federal sweep.
Mr. Kaye
says he was not interfering, but was pursuing his own investigations
concerning, among other things, truck thefts and a local suicide.
Those
inquiries also prompted him to send investigators to Florida, he said recently,
and was not an effort to track down the contractor who is cooperating with the
F.B.I. and appeared to play a key role in the federal investigation.
He also
insisted that he cleared his activities over the telephone with Mr. Christie,
the United States attorney. But Mr. Christie's spokesman, Michael Drewniak,
said that the "conversation, as described by Prosecutor Kaye, never
occurred."
* * * * *
The
following article appeared on latimes.com on March 4, 2005:
Dissing
the Dead to Save the Accused
Blake
lawyers used an old technique.
By Jonathan
Turley
Jonathan
Turley is a law professor at George Washington Law School and a
criminal
defense attorney.
The trial of
actor Robert Blake has been, perhaps fittingly, a made-for-TV drama. The former
tough guy of the series "Baretta" seemed to walk out of Central
Casting — as the bitter, hoodwinked lover — into a scenario populated with
shady stuntmen, drug dealers and a virtual army of unseen pornography addicts.
However, from the opening statements to the closing, the leading role in this
production has been the victim: Blake's dead wife, Bonny Lee Bakley. A serial
con artist and pornographer, Bakley proved the best witness for the defense, a
person whose very life seemed committed to creating reasonable doubt
in defense
of anyone who would end it.
Though we
are taught not to speak ill of the dead, the opposite is more often true in
court. In civil cases, courts have long held that the dead cannot be defamed.
In criminal cases, the dead can virtually be resurrected and held accountable
for their own deaths. Putting the victim on trial is a long tradition in the
law, and it has been remarkably successful in some famous trials — including
some with striking similarities to the Blake case.
One of the
most stunning successes using this defense occurred in the 1907 trial of Harry
Kendall Thaw. Thaw was a highly unbalanced scion of a wealthy
steel-and-railroad family. Decadent and violent, he led a life of utter
depravity. He married the beautiful Evelyn Nesbit, one of the famous dancing
and singing Floradora Girls.
After their
marriage, Nesbit revealed to Thaw that she had been raped by architect Stanford
White, the designer of Madison Square Garden and well-known lech. When Thaw saw
White at a Madison Square Garden event, he shot him repeatedly in front of
hundreds of witnesses.
With little
Harry in trouble again, the Thaw family hired the best — a California lawyer
named Delphin Delmas who was known as the "Napoleon of the Western
bar" for his prowess in the courtroom. Delmas couldn't claim mistaken
identity or self-defense, so he decided to put White on trial. For weeks, he regaled
the jury with tales of the great architect's debauchery, including his infamous
red velvet swing on which showgirls would cavort while he watched from below.
It was enough for the jury, which found Thaw not guilty by reason of insanity.
The victim-as-culprit
defense is often used as a last resort, when the facts do not allow for more
convenient defenses — like innocence. This was the case in the famous 1936
trial of Vera Stretz. Stretz shot her lover, Dr. Fritz Gebhardt, and was found
sitting on the stairs below his apartment with the murder weapon, two spent
shells and a bloody nightgown in her bag. To make matters worse, when asked by
the police if she had shot Gebhardt, Stretz simply said, "Yes, I did, but
please don't ask me why I did it."
Stretz
apparently regained enough of her senses to hire another great trial attorney,
Samuel Leibowitz. Like Delmas, Leibowitz knew what to do: He put Gebhardt on
trial. He skillfully brought into the trial how the German-born Gebhardt was an
adherent of the German philosopher Friedrich Wilhelm Nietzsche, who saw women
merely as the "recreation of the warrior." He compelled Stretz to
testify to Gebhardt's appetite for sodomy and rape. It took only three hours
for the jury to acquit — a verdict that so infuriated the judge that he stormed
out of the courtroom without dismissing them or thanking them.
The
victim-as-culprit defense also has a Hollywood lineage. When Errol Flynn was
accused of statutory rape in 1943, his attorneys used an abortion by one of the
girls to put their morals — not Flynn's — on trial. He was acquitted despite a
strong case for conviction.
Bakley is
the perfect contemporary Hollywood character for such a defense. In a town
known for its eat-what-you-kill predators, Bakley reigned supreme. She led a
life of almost perfect depravity. Before Blake, she had spent 20 years dabbling
in mail fraud, running a pornography operation and bilking lonely men out of
money. Even in its closing argument, the prosecution referred to the victim as
a con artist and "small-time grifter."
In the Blake
case, the use of the victim-as-culprit defense is stronger than many past
cases. It's not just a matter of making the jury hate the victim and sympathize
with the accused; Bakley's history is being used to establish the classic
defense: Someone else did it. The defense has tried to show that you could
virtually throw a stick anywhere in L.A. and hit a couple of people who would
have wanted to kill Bakley.
Despite the
cries of foul from victim's rights advocates, Bakley is fair game for such a
defense. When you lead a life of treachery and deceit, you leave a long line of
plausible killers. With victims like this, who needs an alibi?
Regardless
of its outcome, the Blake trial will join the Thaw and Stretz trials in the
victim-as-culprit Hall of Fame. As for Bakley, she has already achieved a type
of immortality among other cultural icons — a tragic character who searched for
celebrity her entire life only to find it in her death outside an Italian
restaurant in the San Fernando Valley.
* * * * *
The
following article appeared on latimes.com on March 5, 2005:
Did
Racist's Hatred for Judge Lead to Murder?
A Chicago
jurist whose husband and mother were slain had endured two years of
taunting.
By Stephen
Braun
Times Staff
Writer
CHICAGO —
The war of words against U.S. District Judge Joan Humphrey Lefkow
lasted two
years, a baffling, ominous campaign. It ended in the conviction of Matthew
Hale, a white supremacist who had fixated on Lefkow for having thwarted the
movement he called his "church." Now investigators are trying to
learn whether Hale's intimidating words led to murder.
A federal
jury last year found Hale, 33, guilty of trying to arrange Lefkow's murder.
After two years of taunts — with the judge's personal information and family
photographs posted on racist websites — it seemed Lefkow could finally relax.
Hale was isolated in jail, awaiting sentencing. His communication to the
outside world was curtailed and his extremist followers were left without a leader.
But in the
days since the judge discovered the bullet-riddled bodies of her husband,
Michael F. Lefkow, 64, and her mother, Donna Humphrey, 89, inside the Lefkows'
north side Chicago home, Hale's racially obsessed movement again has drawn
intense scrutiny.
Investigators
have questioned Hale about the war of nerves he once waged and about lingering
resentment of Lefkow; authorities have pressed his supporters about their
communications with the jailed extremist and the possibility of involvement by
leaderless "lone wolf" killers.
"They're
looking for coded messages," said Kathleen Robertazzo, a Hale intimate who
said she was questioned twice this week by FBI agents, who also copied her
computer hard drive.
"They
said they're looking for any communications between me and any of the members
to see if there were plans to do anything," Robertazzo said Friday.
The
freelance court reporter said the agents had seized dozens of letters Hale had
sent to her from his tightly monitored cell in the Metropolitan Correctional
Center in downtown Chicago.
Hale is not
allowed contact with other prisoners and is barred from any visitors except for
his family. As a result, federal investigators are pursuing the notion that the
judge's relatives could have been targeted by white supremacists acting without
guidance.
On Thursday,
a posting on the Aryan-Nations.org website from someone called Darklogos
referred to that possibility bluntly: "I for one hope this was the work of
some 'lone wolf' targeting those who aid or support or have connections with
someone involved in acting against our race, or someone who has acted against
those — like Matt Hale — who have stood up for our race."
Police also
are searching for two men whom they have described as "material witnesses."
They were spotted near the Lefkow home hours before the bodies were found
Monday evening.
FBI and
Chicago law enforcement officials have declined to speak publicly about any
theories. "Obviously, Matt Hale and his prior conviction is an avenue we
have to explore," FBI Special Agent Robert D. Grant said Friday as he
announced a $50,000 reward for information in the case.
"We're
not going to become myopic," he added.
But if Hale
and his coterie of extremists have become the most obvious targets for questioning
in the federal manhunt, the depth of their enmity toward Lefkow remains
inscrutable.
"It's
just so hard to understand," said Judge Rebecca Pallmeyer, a colleague of
Lefkow's on the federal bench in the Northern District of Illinois.
Hate-group
experts who have tracked Hale's movement for a decade say that the growth of
his World Church of the Creator was a textbook example of a magnetic, racially
obsessed activist who surrounded himself with adoring followers and used
controversy to gain notoriety in extremist circles.
"On one
level, he was pretty smart about it. He did what most of these extremist
leaders do: Stir up controversy and bring in people who were dependent on
him," said Devin Burghart, a researcher with the Chicago-based Center for
New Community who has monitored Hale and his faction for five years.
But Burghart
and others say that Hale's demonization of Lefkow was a perplexing act of
self-destruction.
"When
you go after a federal judge, you're just asking for trouble," Burghart
said.
The
collision course was set when Hale took over the reins of the World Church of
the Creator, a supremacist sect started in the early 1970s by Ben Klassen. The
former Florida state legislator had forecast a "racial holy war" that
would leave Aryans victorious over Jews, blacks and other inferior "mud
people."
Hale, the
intense son of an East Peoria, Ill., police officer, in 1996 was chosen
"Pontifex Maximus" of the racially obsessed religion — replete with a
"White Man's Bible" and Aryan marriage and communion ceremonies.
An
accomplished classical violinist and a graduate of Southern Illinois University
law school, Hale revived the faction.
Days after
Hale was notified in 1999 that the Illinois State Bar would not accept him,
Benjamin Nathaniel Smith — a Hale disciple — went on a shooting rampage through
Chicago's North Shore, aiming at minorities with a .22-caliber pistol. He
killed two people and wounded nine.
Membership
in Hale's movement surged in the months afterward, to as many as 88 chapters
across the country. Hale claimed 30,000 followers, although hate-group experts
said those numbers were inflated.
The group
also made inroads with neo-Nazi factions in state prisons by distributing white
supremacist tracts under the guise of spiritual materials, Burghart said.
In 2002, a
conflict with an Oregon religious group also known as the World Church of the
Creator threw Hale's organization into turmoil. When the Oregon church sued for
copyright infringement, the case went before Lefkow.
The judge
ruled in Hale's favor. But when she was overruled by the U.S. 7th Circuit Court
of Appeals, she ordered Hale's group to change the name it used on the books it
sold at rallies and over the Internet. Hale's followers did not comply, and
Lefkow responded by threatening to fine the organization $1,000 a day.
Lefkow had
become the enemy. According to testimony in Hale's murder solicitation trial,
he told aides that Lefkow's order placed their church "in a state of
war." He vowed to "teach this judge a lesson."
Talking to
one aide of "intimidation," Hale began planning demonstrations in
front of Lefkow's home and at the federal courthouse in downtown Chicago. And
he pressed followers to obtain personal information — including pictures of her
husband and four daughters — that ended up posted on several extremist
websites.
"It was
a terribly unjust thing for a really wonderful family," Pallmeyer said.
But Lefkow never complained to colleagues. "She endured it with
dignity," Pallmeyer said.
In January
2003, Hale was arrested by FBI agents and charged with trying to arrange
Lefkow's murder. Hale's security chief had been working with the FBI. In taped
conversations, the informant asked the Pontifex Maximus if they were going to
"exterminate the rat."