Issue 343
July 1, 2005
v Dying on our dime by Sandra Kobrin
v Crusading for Prisoners When the System Fails by Julie Salamon
v The Jury’s Out by Zofia Smardz
v Justices Keep Cell Door Open for 2 Reporters by Richard B. Schmitt
v Killer’s Words, Traits Familiar to the Experts by Nicholas Riccardi and Alan Zarembo
The following article appeared on latimes.com on June 26,
2005:
Dying
on our dime
California's
prisons are teeming with older inmates who run up staggering medical costs.
By Sandra
Kobrin
Sandra
Kobrin is a Los Angeles-based freelance writer.
The stench
of manure from a nearby fertilizer factory slips past the razor wire and the
sharpshooters manning the watch tower. The smell follows the inmates
everywhere, from the grassy courtyard where they read or play ball to the
two-woman cells decorated with family pictures to the TV rooms in each dorm.
There's no escaping it.
Yet as state
prisons go, the California Institution for Women in Corona is considered a
pretty place, almost as inviting as a suburban college campus. Sometimes
there's a salad bar at dinner. Still, no one really wants to live here. And,
more emphatically, no one wants to die here.
It's still
dark when inmate No. 41465 wakes up to begin her day. The shrunken 82-year-old
changes from her pajamas and pink house coat into jeans and a denim shirt
labeled California Prisoner and begins her drill: breakfast at 6, sack lunch
pickup at 6:30, infirmary at 7, where she acquires an ankle chain, belly chains
and handcuffs. She then hobbles to a van for the 40-minute ride to Riverside
Hospital for dialysis beginning at 8. Helen Loheac suffers from chronic renal
failure, a condition that she figures costs the state $436,000 a year, not
counting the two $24.75-an-hour armed corrections officers who guard her, all 5
feet and 90 pounds, for up to eight hours a day three times a week.
The financial
toll of incarcerating senior citizens nationwide is staggering. Eyeglasses,
hearing aids, medications and therapies, often for chronic or terminal
conditions, compound the $30,929 annual average tab for housing a young, robust
prisoner.
Penitentiary
conditions accelerate aging, adding physiological years to the lives of men and
women who in many cases compromised their health before getting arrested. They
tend to get sicker than non-inmates with the same illnesses, in part because
diagnosis and treatment arrive late. They're particularly vulnerable to
diabetes, heart disease and hepatitis.
California
spends two to three times more a year housing inmates over the age of 55, of
which there are 6,400 currently incarcerated in state facilities, according to
the Department of Corrections. A state Legislative Analysts Office study
projects that the number of inmates over 60 could hit 30,200 by 2022, costing
the state at least a billion dollars a year.
Sentencing
reform is the primary culprit. The state's 1994 three-strikes law mandates life
sentences without parole for certain repeat felons, and these
recidivists—42,240 second- and third-strikers as of June 2002—will inevitably
grow old and die in prison. Other than parole, the only ticket out of prison is
compassionate release. Designed to liberate inmates who have six months or
fewer to live and no longer pose a public threat, this legislation has
emancipated an average of only 12 people a year since 1997. Inmates sentenced
to life without parole or death are ineligible.
Californians
overwhelmingly supported the three-strikes law 11 years ago, and so far they
have deflected attempts to soften it. Without reform to reduce the number of
"lifers," the best hope of containing healthcare costs lies within a recalcitrant
system.
"She
may have done some heinous or criminal act in her day, but at this point she's
not a risk to the state any longer—other than fiscally," says state Sen.
Gloria Romero (D-Los Angeles), chairwoman of a select committee overseeing the
correctional system. "We are locking up the elderly at the expense of
building schools for students and keeping university fees down, and we can't
pretend that it's not happening."
Do
Californians want to spend a billion to keep old, feeble inmates from roaming
the streets, even if it's in wheelchairs? Many people say yes. They believe in
throwing away the key—no matter the cost.
"We
believe if people commit a crime and have been tried, judged and sentenced,
they need to serve the time," says J.P. Tremblay, an aide to Roderick
Hickman, secretary of the state Youth and Adult Correctional Agency. "Just
because we're in a budget crisis, we can't make crime-and-punishment decisions
based on fiscal concerns."
Hundreds of
those old inmates each cost the state $400,000 or more a year. Loheac entered
the California Institution for Women 13 years ago, at age 69, upon being
sentenced to 25 years to life for conspiracy to commit murder. She says she
thought she was just doing her troubled son a favor in handing off a wad of
cash to a man. That man was an undercover cop, as it turned out, and the money
was for a hit.
In
California, a life sentence almost always means just that, even if the Board of
Prison Terms recommends parole. Former Gov. Gray Davis, a Democrat, stated that
murderers would leave prison during his term only "in a pine box."
Republican Gov. Schwarzenegger is on exactly the same page.
In the
1950s, California became the first state to operate a prison specifically for
elderly inmates, but it closed in 1971 when the prison population dipped.
Today, old felons are sprinkled throughout the 163,939-inmate system, though
federal studies indicate that mainstreaming ultimately costs more than
establishing specialized units. Once ahead of the curve, the state now lags in
adjusting to demographic realities.
"Something
needs to be done now or [California] will lose programs. Parks, schools and
highways will suffer due to the cost of the elderly in prison," says
Jonathan Turley, founder and executive director of the Project for Older
Prisoners, a Washington, D.C.-based organization that develops ways for states
to lower geriatric expenses. Turley studied California's elderly inmates and
presented his grim findings in front of the state Senate in early 2003. In the
past two years, however, there have been no serious proposals to address the
issue.
Meanwhile,
it took more than five years for the state corrections department to act on its
own 1999 report urging the creation of an internal task force to assess elder
healthcare needs and identify what training corrections officers will require
to meet them. Again, no new programs are imminent.
"We
need to look at different correctional strategies that have worked for other
states," says John Dovey, chief deputy director of the corrections
department. "We're looking at a monumental task in dealing with our
elderly."
Proposition
66, an attempt to soften the three-strikes law led by Joe Klass, grandfather of
the Petaluma girl whose murder by a chronic recidivist stoked the original
legislation, failed at the polls last November, losing by 5.4%—634,000
votes—after Gov. Schwarzenegger rallied at the last minute for the opposition.
But reform efforts are still alive. State Assemblyman Mark Leno (D-San
Francisco) recently introduced a bill that would reduce the three-strikes
prison population through new sentencing guidelines.
"The
goal needs to be public safety, not the psychological satisfaction that someone
is being punished for a crime," says Ryan King of The Sentencing Project.
"If California continues to admit 1,200 three-strikes felons annually, by
2026 there will be 30,000 third-strike inmates serving sentences of 25 to life
at the cost of $750 million a year."
And the
state will pick up the entire tab for their healthcare, just as it does for
wheelchair-bound Corona inmates Norma Jean Jackson and Carol Hargis, both of
whom have served more than 25 years on their seven-to-life sentences. Both
women have also lost bids for compassionate release. The 74-year-old Jackson
suffers from the effects of a stroke, heart disease, diabetes and arthritis.
Hargis, 64, is dying of chronic pulmonary disease.
The
California Medical Facility is a prison compound off a two-lane road on the
fringes of Vacaville, a quiet town 30 minutes from Sacramento. Visitors who
roll down their windows might get a whiff of cow as they pass dairy barns en
route to what looks more like a dilapidated office park than a place of
healing. Inside, leaking pipes hang duct-taped to the ceiling and to wall after
cracked wall—except in one special hallway where automatic double doors swing
open. To cross the threshold from the prison into the hospice is to go from
Kansas to Oz.
It's New
Year's Eve, and a lighted Christmas tree stands by the visitors room, which is
decorated with paintings by inmates, mostly pastorals, and drawings by
schoolchildren. Metal bars are hidden behind the window shutters. More nurses
than guards patrol the rooms, where occupants either watch TV or just stare the
stare of the very sick.
Frank Parker
wears a bright orange jacket marked Sight Impaired as he wanders behind his
three-pronged cane from bed to bed, saying hello, changing the channels,
delivering gossip from the units and offering comfort to the dying.
"He's a
real sweetheart. Really helpful, really kind," says prison chaplain Keith
Knauf.
Now 72,
Parker is serving 15-to-life for murdering a man who he believed was having an
affair with his wife. His time in prison, 20 years and counting, has not been
easy on him—or on taxpayers. So far, doctors have treated Parker for three
strokes and two heart attacks. His surgeries include heart bypass, knee
replacement and cataract, which left him blind in one eye. Parker gulps down 15
pills a day. He has been denied both parole and compassionate release while
racking up, by his count, more than $1 million in treatment.
If he were
released, Parker says he would return to his home in Northern California and
let the federal Veterans Administration pick up his medical bills. "I
can't blame anybody but myself for being here," he says. "I don't
want to be a burden to no one. Who in the world am I going to hurt, an old,
crippled man like me?"
As he makes
his usual rounds on this cold winter day, Parker ends up at the bedside of one
of his regulars. Eighty-year-old Claude Hoffman, sits on a bed covered with a
patchwork quilt handmade by the ladies of Shepherd of the Hills Lutheran Church
in nearby Vacaville and watches a small TV. Though most inmates in the
eight-cell unit pass away within a few months, he arrived more than a year ago
ready to die of lung cancer and chronic obstructive pulmonary disease. His
stay, not including medications, costs the state $1,500 a week, three times as
much as a healthy prisoner.
Hoffman was
sentenced to 15-to-life for killing his girlfriend about 18 years ago, an act
he committed while drunk. Now a born-again Christian, he spends most of his
time writing to and about Jesus:
"I used
to struggle for power
An empty
lonely thing
Now I am on
a first-name basis
With the
King of Kings."
"Every
day I ask Christ our Lord to take me off the state rolls and let me go home to
die," he whispers, using his inhaler to draw a breath before continuing.
"I could get veterans benefits. Financially, I could take care of myself,
instead of it costing the state to watch me die."
Despite the
establishment of a compassionate-release program for terminally ill inmates,
from 2000 to 2002, only 30% of the applicants left the penitentiary to die. And
the state is even more reluctant to release "lifers."
The
application process is so long that many inmates die before the decision is
made. First, a prison doctor must write a recommendation stating that death is
expected to occur within six months. If the applicant is a non-lifer, the paperwork
then bounces from the warden to the director of the corrections department to
the original sentencing judge for final approval. However, if the applicant is
a lifer, as most elderly inmates are, the case also requires the approval of
the Board of Prison Terms before it's sent to the original
sentencing
judge. In 2003, of the 48 inmates who applied, 16 received board
recommendations and only 10 were released.
Last year,
state legislators passed a bill to open the compassionate-release program to
permanently medically incapacitated prisoners, such as a prisoner who is a
quadriplegic, in hopes of saving millions of dollars. The Los Angeles County
District Attorney's office backed the plan. But Gov. Schwarzenegger vetoed it,
arguing that the legislation lacked "any mechanism to return these
prisoners to custody" if they either recovered or posed a threat to public
safety.
The veto
shocked Cynthia Chandler, an attorney for and co-director of Justice Now, an
Oakland-based advocate in compassionate-release cases. "Schwarzenegger
says he was going to be serious about the budget crisis and move beyond
partisan politics and reform corrections," Chandler says.
Other
cost-saving measures used in other states have yet to gain traction in
California. One involves creating minimum-security units for geriatric
prisoners and staffing them with fewer, but specially trained, corrections
officers. Another hinges on releasing sick inmates who have the potential to
tap Medicare, Social Security or veterans benefits and tracking them via a
$10-a-day bracelet system.
But Turley,
of Project for Older Prisoners, believes California will get the largest return
through a systematic release program like the ones he helped implement in
Virginia, Maryland, Louisiana, North Carolina and Michigan. Conservatives and
liberals embrace that approach, Turley says, because it's based on risk.
"We can predict recidivism pretty well," he says. "If California
created a Project for Older Prisoners office at a law school, like in other
states, it would help remove prisoners that are low risk and high cost. They
gain cell
space and save dollars. A win-win situation." The state should also look
into creating an alternative incarceration program, and look into working with
its public health programs and its universities to supply medical care to
inmates, Turley adds.
Kidney
patient Helen Loheac, in Corona, sees a simple solution for her case: release.
She would live out her remaining time in a small room saved for her by the nuns
at Crossroads in Claremont, who often reach out to inmates. Sister Terry Dodge
has said she would take her in, and Medicare would pay for dialysis.
Frank Parker
would return to his family in Northern California, as would Claude Hoffman.
The release
of many elderly prisoners would shift the financial burden of their health and
welfare from the state to the federal government. It would free state funds to
not only help balance the budget, but pay for schools, parks and highways.
As with so
many matters of public policy, the obvious solution sometimes seems out of
reach, bogged down in legitimate disagreements between opposing sides.
Many
advocates for the elderly in prison, including state Sen. Romero and The
Sentencing Project's King, believe three-strikes reform is the only long-term
solution. "We need to look at our sentencing legislation and what's
putting those people there to begin with," King says.
The
governor's administration disagrees. "There's nothing wrong with the
sentencing structure in California," says Tremblay of the state Youth and
Adult Correctional Agency. "And we're certainly not emptying out our
prisons to balance the budget."
So Claude
Hoffman waits. The Christmas tree gives way to chicks and bunnies as he marks
his second Easter at the hospice. Baseball season opens. Hoffman dreamily
recalls seeing Babe Ruth and Hank Greenberg play in Detroit, his hometown. He
hopes to watch a game with his family, one last time.
* * * * *
The
following article appeared on nytimes.com on June 27, 2005:
Crusading
for Prisoners When the System Fails
By JULIE
SALAMON
Bob Woodward
and Carl Bernstein started a generation of journalists' fantasizing that their
stories would, if not bring down a president, provoke some small change in the
system. Ofra Bikel, a producer for the PBS documentary series
"Frontline," is one of the few for whom this fantasy has been
realized over and over again.
This month,
Patsy Kelly Jarrett, a convicted murderer, was released from prison after 28
years, largely, her lawyer said, because of Ms. Bikel's documentary, which was
broadcast on PBS last year. Ms. Jarrett was the 13th prisoner released in 14
years of profiles by Ms. Bikel.
"It's a
little embarrassing," Abbe Smith, Ms. Jarrett's lawyer, said of Ms. Bikel.
"I've been a criminal defense lawyer for 22 years, and her work has
probably led to the release of more prisoners than mine."
David
Fanning, the executive producer of "Frontline," first hired Ms. Bikel
in 1977 for "World," an international documentary series produced by
WGBH in Boston. Six years later, when Mr. Fanning began "Frontline"
at WGBH, he took Ms. Bikel along.
"There
is a sort of good, old-fashioned crusading journalism to what she does,"
Mr. Fanning said in an interview. "A fire in the heart and the brain that
says this is an outrage and a wrong that can be corrected."
But don't
talk to Ms. Bikel about having a social conscience. "I don't think I have
one," she said. "I would never go to a demonstration. I'm not
involved in raising money for anybody. No, I don't think I have a social
conscience." But she explained: "I hate injustice. It just bugs
me."
She is a
small woman with short blondish hair who seems elegantly dressed even in jeans
and sneakers. Born and raised in Israel, she speaks quickly and emphatically,
with a hearty laugh that takes the edge off her blunt style and sharp accent.
Her Upper West Side apartment, where she was interviewed earlier this month,
has a little garden. The walls inside are colorful, the décor an aesthetic
clutter of paintings, books and objets d'art.
Her success
rate with picking future parolees is no accident, she said, explaining: "I
pity everybody, but I can't take somebody who has molested a child and now is
in for the wrong murder. If I want to convince people, I have to be smart about
it. I want someone who is without a huge baggage of crimes. People have to look
at the shows and say, 'No way, this can't happen in this country.' "
Ms. Bikel
said she had not been sure about using Ms. Jarrett in "The Plea," a
documentary about plea bargaining. It wasn't that she thought Ms. Jarrett was
guilty of participating in the murder of a teenager during a gas station holdup
in a small town outside Utica, N.Y. The evidence that convicted her appeared
weak. But years in prison had tamped down Ms. Jarrett's spirit and added bulk
to her body.
"She
looked, really, like a guard, you know," Ms. Bikel said, adding that she
was concerned that Ms. Jarrett's appearance and manner of speaking would not
make her sympathetic to television viewers. "And she kept saying things
like, 'Thank you for caring for my life.' I didn't know what to make of
it."
Ms. Bikel
said she didn't think she could get anything from Ms. Jarrett. She said,
"And I said to Abbe, her lawyer, 'This short hair of hers, it's really
impossible.' "
Ms. Bikel
finally decided that the details of Ms. Jarrett's case compensated for any lack
of telegenic appeal. She had already filmed people who had been coerced into
taking pleas. Ms. Jarrett was different. Seventeen years into her prison term,
she had been offered freedom in exchange for a plea but refused because, she
said, she could not say she was guilty when she was not.
Ms. Bikel's
doggedness only begins with casting, those who have worked with her say. Her
admirers note that she is even more persistent when gathering information that
illustrates the absurdities and injustices of the system.
"She's
a great documentary filmmaker, in part, I think, because she can drive people
crazy," said Barry C. Scheck, a founder of the Innocence Project at the
Benjamin N. Cardozo School of Law, a legal clinic that uses DNA testing to
reverse wrongful convictions. "She's relentless. Ofra doesn't hesitate to
call me at all hours of the evening. She calls me seven times and I'm trying a
case, but if I haven't immediately returned her call she says: 'What's wrong?
You don't love me?' "
In 2000, Mr.
Scheck's group worked on the case of Roy Criner, one of four subjects in a
Bikel documentary, "The Case for Innocence." Mr. Criner's conviction
was overturned that year, and he was released.
On her very
first assignment for Mr. Fanning, a "World" report on Colombia, she
refused to hire a translator but told Mr. Fanning she would not go to South
America unless he sent her to language school first. He did.
Ms. Bikel's
fierceness continues after her programs are shown. In the case of Ms. Jarrett
and Charles Gampero Jr. - another prisoner featured in "The Plea" who
was subsequently released - she sent copies of their interviews to their parole
boards. In Ms. Jarrett's case, she said, "I sent them three copies and a
letter that said, 'Look, I don't know if she will talk for herself and I would
like to do this.' "
Scott
Steinhardt, a spokesman for the New York State Division of Parole, refused to
give special credit to "Frontline." "There's no one particular
piece of information or fact which would move the board's decision in any
way," he said. But Ms. Smith, Ms. Jarrett's lawyer, said a parole officer
told her the documentary made a difference.
Charles
Gampero Jr.'s mother, Joanne, said that she felt that her son, too, was helped
by Ms. Bikel. "Because of the story there was so much public opinion, and
without that public opinion he would not have gotten out," she said.
Ms. Bikel
says that as a teenager in Tel Aviv, the daughter of a father who was an
electrical engineer and a mother who was a special education teacher, she
imagined becoming a reporter, mainly because she liked to think of herself
wearing a trench coat. She studied political science and international law in
Paris and was married - briefly - to Theodore Bikel, the actor and singer,
whose roles included Tevye in touring companies of "Fiddler on the
Roof."
Of her
marriage, she said only, "I was married, not married now, I don't think
I'll marry again."
Her age is
another taboo subject. "I'll tell you why," she said. "I stopped
asking people I work with, 'Where were you when Kennedy was assassinated?,'
because most of them say, 'I wasn't born yet.' "
But her long
career speaks for itself. She fell into the television business and by 1971 was
working on "The Great American Dream Machine," a public television
magazine show. Sheila Nevins, now president of documentary and family
programming at HBO, worked for her then. "She was a good role model,"
Ms. Nevins said. "Nothing was too tough for her. She's a classy gutter
fighter."
Ms. Bikel
turned to the judicial system as her main subject in 1990, when she began
investigating a case of child sexual abuse in North Carolina that would result
in three documentaries over a seven-year period. Her work is not praised for
fancy camerawork but for revealing interviews that convey both legal and human
complexity.
She gets
tough judges and prison inmates to be surprisingly frank. "They don't know
what to make of her," Mr. Fanning said. "She's foreign, surprising,
she's like a Martian. That's what is disarming. She's not like other
reporters."
* * * * *
The
following article appeared on washingtonpost.com on June 26, 2005:
The
Jury's Out
How 12
Reasonable People Got Hung Up on Reasonable Doubt
By Zofia
Smardz
I'd read
about the "CSI effect," of course -- how the trendy TV show about a
crack team of crime scene investigators has juries from coast to coast
expecting fancy forensic evidence that will seal a defendant's guilt or
innocence. But I was still surprised when it reared its troublesome head in our
jury room last week.
I mean, it's
one thing to hear the jury foreman in the Robert Blake trial declare that the
has-been actor had been found not guilty of shooting and killing his wife
because there was "no GSR" (that's gun shot residue, for you
non-"CSI" fans) on his hands to nail him beyond a reasonable doubt.
The guy was up on a murder charge, after all. But the forensic frenzy
materialized in our not exactly earth-shattering firearm and drug possession
case here in the District's federal court, too.
"I
don't understand why we don't have more evidence," complained one of my
fellow jurors. "Why didn't they try to get fingerprints from the car? And
off the keys?"
"Why
didn't they try to get some DNA, or hair or something, off the jacket?"
demanded another.
"Right,"
chimed in several other voices. "That would make so much difference."
It sure
would. It would, above all, eliminate the need to figure out whether the prosecution
had proven its case "beyond a reasonable doubt." And that, I have to
say, would have been a relief to us all, because if there was one thing my
fellow jurors and I wrestled with, it was the question of what constitutes that
subjective, shape-shifting notion. What, we pondered and worried, is reasonable
doubt?
In this, I
guess we weren't so different from the many others who participate in the World
of Jury Duty, 2005. By demanding proof positive of a defendant's wrongdoing,
lots of jurors these days seem to be reaching well beyond doubt of any kind and
grasping for the brass ring of certainty. It seems they aren't looking to get
past reasonable doubt; they're looking for no doubt.
The last
time I sat on a criminal jury was 1987. That was in the days before "Law
and Order" and its many offspring, and way before the "CSI"
craze. It was before O.J. and the infamous glove. It was before the
much-publicized DNA exonerations of death row inmates in the last several
years. Back then, I don't remember my jury having so much doubt about what
constituted "proof beyond a reasonable doubt" of the defendant's
guilt. A couple of eyewitnesses pretty much did the trick, as I recall. There
wasn't any technical evidence at all. No fingerprints, nothing. And we didn't
expect any.
But
nowadays, there are numerous reports of jurors going wild, researching cases on
the Internet and visiting crime scenes in an effort to determine the truth.
Aware of advances in science and technology -- and not just from TV shows, as
one of our jurors chastised the prosecutor for implying -- they anticipate
forensic evidence of the most minute, exotic, even fantastic sort: One member
of my jury thought it was possible to lift multiple fingerprints off a given
object and determine which set was the freshest. He seemed to hold it against
the prosecution -- which has the burden of proof in every case -- for not
providing such information. And this was after the prosecutor had gone to great
lengths to call a witness who described how hard it is to lift usable prints
and explained why the government had no fingerprint evidence of any kind to
offer.
These
expectations "may be stretching the standard [of reasonable doubt] to
perhaps beyond all doubt," says Mickey Sherman, a criminal defense lawyer
in Greenwich, Conn. For Sherman -- who unsuccessfully defended Kennedy relative
Michael Skakel in his 2002 trial for the murder 30 years ago of Greenwich
teenager Martha Moxley -- this is not exactly a negative development. Defense
lawyers "prey on it," he said, pushing the idea that every case
should include DNA and fingerprints and forensic tests of limitless kinds.
That
strategy certainly raises the demons of doubt. But are they reasonable ? That's
where my fellow jurors and I went round and round. Think how often you hear
that phrase -- beyond a reasonable doubt. It's so familiar, a part of the
national vocabulary. It's thrown around in novels and movies and on TV. You
take it for granted. Until you're on a jury and you suddenly realize you're not
quite sure just what it means. And no one will quite tell you. Maybe it's
deliberate -- one of those obfuscatory things the legal profession is so fond
of, jurisprudence being, in the end, not a science but a flawed endeavor
dependent
upon human
logic and rationality. And emotion, no doubt. But when you're a juror, it
certainly is frustrating.
My jury was,
if I do say so, a panel of intelligent, eminently reasonable adults. Eight
whites, three blacks, one Asian American. Eight women, four men. All professionals
of one sort or another, including an accountant, an economist, a paralegal and
a couple of us media types. We were well informed, thoughtful, respectful, bent
on doing a good job.
But when it
came to defining reasonable doubt, a sticking point in our deliberations, we,
well, got stuck. "Juries have always struggled with the concept of
reasonable doubt," says Robb London, a former federal prosecutor in
Seattle and now editor of the Harvard Law Bulletin. (Whew, that's a bit of a
relief.)
We all
thought we understood that it didn't mean no doubt, or even just a little
doubt. But then, how much? And doubt of what? It's taxing, too, to have a
guilt-determining standard termed in the negative. When you hear something like
what a juror in the Mississippi trial of Edgar Ray Killen said last week --
"I think the reasonable doubt was not there that he didn't have anything
to do with it"-- you realize how mind-pretzeling the notion can be.
We
deadlocked at 8-4 for acquittal, splintering chiefly over an eyewitness
identification of the defendant that some thought too iffy. (Could that police
detective really have gotten a good enough look at the guy he chased that
night, in the dark, on the run?) Others thought any doubt about the
identification question was outweighed by circumstantial evidence that pointed
to the defendant as the man who ran from police, dropping a jacket with a gun
in the pocket before he headed into the woods. When it became clear no one was
going to budge, some in the majority undertook to challenge the minority on
their understanding of reasonable doubt.
So we reread
the jury instructions the judge had given us. I should know them by heart by
now, but I only remember how vague they were. How long and . . . legalistic.
The instructions said that reasonable doubt was a higher standard than the one
in civil trials, where you only have to believe that the evidence proves the
charges are more likely true than not. So all right, not just "probably
guilty." But they said proof beyond reasonable doubt doesn't mean
scientific or mathematical certainty, either. They said that reasonable doubt
is a doubt based on reason. (Go figure.) They said that if after careful,
impartial
consideration
of all the evidence, you were "firmly convinced" of the defendant's
guilt, then you should find him or her guilty. But they also said that if you
had doubt about any part of the evidence, you had to vote not guilty. I think.
And there was more, little of it illuminating.
We requested
further clarification from the judge. He instructed us to read the instructions
again.
Later, after
we had declared ourselves at a stalemate and the judge dismissed us as a hung
jury, the attorneys from both sides met with us and offered their own takes on
reasonable doubt. It's often stated as doubt based on reason as opposed to
fancy, guesswork or conjecture, the prosecutor said. Aha. That's a smidge
better, but only a smidge. The defense attorney offered an analogy I can't
re-create, but the bottom line was that it means the kind of doubt that would
make you hesitate to take a significant action in your own life. Well, okay,
but still a little hard to put your finger on.
So I polled
a few other lawyers on the meaning of reasonable doubt." It's like
pornography," offered defense lawyer Sherman, only half-joking. "You
can't describe it, but you know it when you see it." Or, "beyond a
reasonable doubt means: My conscience is clear in voting to convict this
defendant despite the fact that there are some small, unanswered questions or
unknowns, and I'd be shocked and horrified to learn later that he was really
innocent," said Harvard's London.
That latter
definition has the virtue of being in plain English, though it's pretty broad
and nebulous. And again, maybe that's the idea. Who wants a definite, delimited
paradigm to follow when you're determining a person's fate? Jurors aren't
stamped from cookie cutters; they're individuals who need latitude for their
opinions. And yet. . . . During our deliberations, one juror kept pressing the
rest of us to quantify our degree of certainty or doubt regarding the
defendant's guilt. "How sure are you?" he'd ask. "Fifty-one
percent? 75 percent? 99.8 percent?" We mostly shouted him down, dismissing
his question as
quixotic, if
not lamebrained.
But when I talked
to former federal prosecutor (now a George Washington University law professor)
Paul Butler midweek, guess what? He offered his opinion that the CSI effect was
simply reinforcing the very high standard of reasonable doubt, "which most
legal scholars put at above 95 percent certainty, probably 97 to 98
percent." Now there's news we could have used! Maybe it wouldn't have
changed any votes, but it might have been reassuring to us all to know at least
what our certainty level should approach. There's something about a number that
can be comforting.
So, as
someone who's done her duty, may I offer my two cents to the legal/judicial
community? Even if you can't quantify reasonable doubt (the Supreme Court has
never done it), could you update the definition a little? Trials are
fascinating puzzles, but jurors shouldn't have to rack their brains over
obscure concepts that mean so much. Put the instructions in terms the average
non-lawyer, non-legal scholar, non-philosopher lay person can understand.
It seems like
the reasonable thing to do.
* * * * *
The
following article appeared on latimes.com on June 28, 2005:
Justices
Keep Cell Door Open for 2 Reporters
The New York
Times and Time magazine file new papers in federal district court after the
Supreme Court declines to hear contempt case.
By Richard
B. Schmitt
Times Staff
Writer
WASHINGTON —
The Supreme Court cleared the way Monday for the jailing of two reporters who
refused to reveal confidential sources to a prosecutor investigating how the
name of an undercover CIA operative ended up in a newspaper column.
The high
court, without comment, declined to hear the appeal of Judith Miller of the New
York Times and Matthew Cooper of Time magazine, who had argued that the 1st
Amendment protected them from having to identify their sources to special
prosecutor Patrick J. Fitzgerald in the politically charged case.
Miller and
Cooper were held in contempt last year for refusing to cooperate in the
investigation; they were sentenced to prison for up to 18 months, pending
appeal.
The Supreme
Court action sets the stage for a possibly rapid denouement. Absent a
last-minute cooperation agreement — or Fitzgerald backing down — the
journalists could be jailed in a matter of days.
Their two
news organizations on Monday filed court papers seeking a hearing Wednesday
before Thomas F. Hogan, the federal district judge in Washington who held the
reporters in contempt in October.
The court
filings indicate that lawyers for the journalists want to raise new arguments
that might forestall the possibility of jail, as well as "personal and
medical considerations" that the court should consider in imposing
"suitable" confinement should those arguments fail.
Hogan did
not immediately respond to the request.
"I am
extremely disappointed," Miller said in a statement. "Journalists
simply cannot do their jobs without being able to commit to sources that they
won't be identified. Such protection is critical to the free flow of
information in a democracy." Reached by phone, Miller declined to comment
further.
Miller, 57,
joined the New York Times' Washington bureau in 1977 and was part of a team
that won a Pulitzer Prize in 2002 for a series on Osama bin Laden and Al Qaeda.
Although Miller gathered information about the CIA matter, she never wrote
about it.
Arthur
Sulzberger Jr., the paper's publisher, said: "It is shocking that for
doing some routine news gathering on an important public issue, keeping her
word to her sources and without our even publishing a story about the CIA
agent, Judy finds herself facing a prison sentence."
In a written
statement, Time magazine cited what it said were changes in the investigation
and the possibility that the disclosure of the agent's name may not have
violated federal law.
Disclosing
an agent's name is illegal only if the leaker does so deliberately, knowing
that the information is classified and that the government has taken steps to
keep the agent's identity confidential.
Some people
close to the case believe it will be difficult for Fitzgerald to prove that the
leak of the CIA operative's identity was illegal, and that he may be preparing
lesser perjury or obstruction charges. Such an investigation "may not rise
to the level that justifies disclosure of information from or about a reporter's
confidential sources," Time declared in its statement. Cooper, 42, who has
served as a White House correspondent for Time since June 2003, did not return
a phone message left at his Washington office. A spokeswoman for Time, Dawn
Bridges, said he was not commenting on the advice of counsel.
Fitzgerald,
who has said the testimony of Cooper and Miller is essential to completing his
investigation, issued a statement saying he was eager to move ahead.
"Now
that the legal obligations of the reporters are settled and all appeals
exhausted, we look forward to resuming our progress in this investigation and
bringing it to a prompt conclusion on behalf of the citizens we
represent," the prosecutor said. He has said in court papers that the
investigation was complete as of last fall but for the testimony of the two
reporters.
Press
advocates had hoped that the Supreme Court would grant the Miller-Cooper appeal
in order to reexamine a 1972 decision by the court that journalists had no
special privilege to withhold source information from grand juries.
The high
court's refusal to hear the appeal comes at a time when other journalists are
running into trouble with the law for refusing to identify their sources,
including a Rhode Island television journalist who recently completed four
months of home confinement for contempt for refusing to reveal who gave him a
copy of a videotape of a local official taking a bribe.
In
Washington, five reporters — including Bob Drogin of the Los Angeles Times —
are battling $500-a-day fines imposed by a federal court for declining to name
sources they used in stories about a former nuclear weapons scientist who
pleaded guilty to mishandling classified information.
Fitzgerald,
an expert in terrorism who is also the U.S. attorney in Chicago, was appointed
in December 2003 to investigate how the name of CIA operative Valerie Plame
made its way into a July 14, 2003, column by Robert Novak, and whether someone
in the White House may have leaked her identity, violating a federal law that
protects the identities of covert agents.
Plame is
married to former envoy Joseph C. Wilson IV, who, eight days before the Novak
column, wrote an opinion article in the New York Times that took issue with a
claim by President Bush in the January 2003 State of the Union speech. Bush
said Iraq was attempting to buy weapons-grade uranium in Niger, but the White
House later recanted the claim, which was part of the bungled intelligence it
used to justify the war in Iraq.
Among other
avenues, Fitzgerald has been investigating allegations that someone in the
White House called up a number of prominent journalists, besides Novak, and
offered up the identity of Plame in an effort to discredit Wilson. Wilson's
trip to the African country was made at the behest of the CIA; Novak insinuated
in his column that Plame arranged the mission, a contention that Wilson denied.
But nearly
two years after the leak, Fitzgerald has yet to charge anyone other than the
two journalists. Although Miller never wrote about the case, Cooper coauthored
an article on the Time website that took to task whoever unmasked Plame.
Novak,
meanwhile, appears to have emerged from the probe unscathed. Through his
lawyer, he has declined to comment, although the fact that Fitzgerald has said
his investigation is complete has led most observers to believe that the
columnist has talked with the prosecutor.
* * * * *
The
following article appeared on latimes.com on June 28, 2005:
Killer's
Words, Traits Familiar to the Experts
Like Dennis
Rader, most serial predators crave control. Many were abused, but what pushes
them, and not others, to murder is a mystery.
By Nicholas
Riccardi and Alan Zarembo
Times Staff
Writers
Monday's
confession by BTK killer Dennis L. Rader was a rare public look into the eerie
world of serial killers, one that is full of tantalizing patterns but governed
by a violence that scientists and profilers do not understand.
Most serial
killers are publicity hounds. But details of their crimes usually come out in
the relative privacy of a jailhouse interview rather than in open court. The
terms Rader used to describe his killings — "trolling" for victims,
"stalking" his prey — startled former FBI profiler Clint Van Zandt.
"He's
quoting serial killer tradecraft," Van Zandt said. "These are the
words I would use standing up in front of a class of FBI agents or law
enforcement officers talking about serial killers."
Rader's
words weren't the only thing crime experts found familiar. His personal history
and tightly controlled demeanor dovetail with those of most other serial
killers.
"These
are guys with an excessive need for power, dominance and control," said
Jack Levin, director of the Brudnick Center on Violence and Conflict at
Northeastern University. And they don't seem to be able to satisfy it, he said,
in any socially acceptable way.
Even though
decades of field and academic study have mapped commonalities among serial
killers — they are mostly men, abused as children, obsessed with power and
status — experts said they were far from determining what creates them.
"There
are lots of children who are abused and abandoned," Levin said. "They
feel an exceptional amount of powerlessness, and they grow up and compensate by
being CEOs and businessmen."
Others, he
said, turn into the BTK killer.
Serial
killers tend to exist on society's margins, feeling neglected and passed over.
Rader, a city ordinance officer, had been unable to become a cop; Ted Bundy,
who killed dozens of women, flunked out of two law schools. Cannibal Jeffrey
Dahmer was stuck in a menial job in a chocolate factory.
Dennis
Nilsen, convicted in the 1980s of murdering 15 homosexual men, was a civil
servant in London who would often tie his dead victims in chairs and lecture
them about civil service regulation.
The
publicity gained through their crimes offsets that perceived neglect.
The killings
"are the fundamental achievements in their entire lives, the high
points," said Elliott Leyton, an emeritus professor of anthropology at
Memorial University of Newfoundland and author of "Hunting Humans: The
Rise of the Modern Multiple Murderer." The killings, he said, are
typically recounted "the same way a craftsman would talk about a fine
piece of furniture he made."
Serial
killers' need to control their victims was chillingly illustrated by Rader. He
always brought a gun to his crime scenes, but used it only if a victim was
about to escape. He preferred to kill up close, by strangulation.
"They
enjoy the physical contact, they love squeezing the last breath," said
Levin, who has written several books on serial killers. "They love hearing
their victims scream … killing is almost incidental. Power is the motive."
As,
frequently, is sex. For many serial killers, sexual urges have become linked to
violence, and the sense of power provided by murder is coupled with an erotic
release. Rader said that he killed to satisfy "sexual fantasies,"
which he did not detail in court Monday.
The killers
often are victims of childhood trauma that blended control, sex and violence.
Gary
Ridgway, the Green River killer who murdered 48 women before he was caught in
2001, wet the bed as a child. His mother, sometimes in a revealing nightgown,
would drag him into a bathtub, strip and clean him.
Ridgway was
confused by the mix of anger, humiliation, lack of control and love for his
mother, tinged with eroticism, said Tomas Guillen, a professor at Seattle
University who has studied the Green River killer's recorded confessions.
"I'm angry at Mom, I want to kill her, but I love her," is how
Guillen summarized Ridgway's thoughts.
Many serial
killers target victims who are not part of their world — in Ridgway's case,
prostitutes.
What sets
Ridgway and Rader apart from most, however, is that they both had lengthy
marriages, owned homes and attended church. Most such criminals are loners and
drifters who have a hard time maintaining relationships.
Many serial
killers also are aware of their peers. "We've arrested these guys over the
years, and they've got all the articles on Ted Bundy all over the house,"
Van Zandt said. "It's the same reason why generals read books about other
generals — how did they make their decisions? What would they do in this
situation?"
Sometimes
the killers get competitive. In the 1980s, Dave Reichert, now a congressman,
was a detective investigating the Green River killings when he received a
letter from Bundy, who was in a Florida prison awaiting execution.
Bundy told
the detective that he could give him insight into the mind of a serial killer.
Reichert and
a colleague visited him for two days and found him congenial. But his motive
for offering help was clear: Another killer was making a bigger name for
himself. "Bundy was out of the limelight," Reichert recalled.
"He wanted a way to get attention."
In his
correspondence with law enforcement and the media before his capture, Rader
would frequently mention other serial killers and demand their level of
notoriety. One spelling and typo-ridden letter to a Wichita television station
in 1978 summed up his yearning for celebrity, along with the inability to
explain what drove him to kill.
"You
don't understand these things because your not under the influence of factor
x," he wrote. "The same thing that made Son of Sam, Jack The Ripper,
Havery Glatman, Boston Strangler, Dr. H.H. Holmes Panty Hose Strangler of
Florida, Hillside Strangler, Ted of The West Coast and many more infamous
character kill…. There is no help, no cure, except death or being caught and
put away."
* * * * *