Quacks With Bite: Forensic Fabrications Exposed

While we're waiting for the verdict in United States v. Melton, please pause for a bit and consider another possible criminal violation of the civil rights of Mississippians. A little more than a year ago, Reason magazine's Radley Balko published his devastating expose of pathologist Stephen Hayne and forensic dentist Michael West, who practiced misanthropy as State experts in Mississippi criminal cases.

www.reason.com/hayne

Then in Spring 2008, the exonerations of Kennedy Brewer and Levon Brooks demonstrated the human cost of false forensic testimony -- two men sent to Parchman's death row for over a decade (although one was resentenced to life due to mental retardation). When they were finally released, District Attorney Ben Creekmore, appointed special prosecutor in the cases, apologized for the wrongful incarceration on behalf of the State.

Now Mr. Balko has dropped another bomb. In the attached article, he posts a video tape of an autopsy at which Dr. West is seen pressing a defendant's dental mold into the face of a young girl's corpse. Dr. Hayne is present. The link is to Balko's story; the video can be found there. DO NOT WATCH THE VIDEO IF YOU ARE LIKELY TO BE UPSET.

http://www.reason.com/news/show/131527.html

Balko reports:

"Reason recently obtained shocking video from another Hayne and West collaboration that may shed light on the question. In 1993, the two conducted an examination on a 23-month-old girl named Haley Oliveaux of West Monroe, Louisiana, who had drowned in her bathtub. The video shows bite marks mysteriously appearing on the toddler's face during the time she was in the custody of Hayne and West. It then shows West repeatedly and methodically pressing and scraping a dental mold of a man's teeth on the dead girl's skin. Forensic scientists who have viewed the footage say the video reveals not only medical malpractice, but criminal evidence tampering."

I used to think I was jaded, but I could never have dreamed that even Drs. Hayne and West would so boldly manufacture false evidence -- and record it on video.

For those of you who may think Mayor Melton should be acquitted because he is fighting the drug trade and "the end justifies the means," this video shows why we have to hold Government accountable to follow the law.

For those of you who think that prisoners who claim to be "framed" are delusional or mendacious, this video will make you re-think that attitude.

And for those of you who are still for the death penalty, remember this: false expert testimony could have sent two innocent men to their death. In our name.

It's time to get damn furious about those who misuse the public trust, and to change the criminal justice system to ensure that the all-too-human tendency to cut corners, assume guilt, and rush to judgment is curtailed and controlled by the rule of law.

Memo to our next United States Attorney: In Illinois, they indicted detectives who manufactured evidence in homicide cases.

http://www.mcall.com/topic/chi-020103trial3,0,4080114.story?page=1&track=rss-topicgallery

Sounds like a good idea for Mississippi.

Another Head-Spinner at the End of the Week: the Former Chief Goes Both Ways?

The Jackson Free Press has just reported (via Twitter) something I heard a rumor of last week: that former Chief Justice Jim Smith is now of counsel to Ogden & Associates, the firm owned by Jackson plaintiffs' lawyer Ashley Ogden.

Under Chief Justice Smith's leadership, the Mississippi Supreme Court moved affirmatively (you could say aggressively) to address the need for tort reform in the State Court system. Alex Alston, former President of the Mississippi Bar, took Chief Justice Smith to task for going too far. His op-ed piece (quoted in full by folo here: http://www.folo.us/2008/06/29/attorney-alex-alstons-plea-for-appellate-justice-in-mississippi/) was widely considered to contribute to the Chief Justice's upset loss to Jim Kitchens in the November elections.

The op-ed showed that the Smith Court had a pattern of reducing or eliminating jury awards in favor of plaintiffs, while rarely if ever reversing a victory for defendants.

Interesting news, then, for now private citizen Smith to link up with the kind of firm he usually cast his vote against while on the Court . . .

Not Rocket Science: the Intent Element in US v. Melton

As I write this, the jury in the case of United States of America v. Frank Melton et al. is in its third day of deliberations. This morning, the Clarion-Ledger ran a front-page analysis of the lengthy deliberations. In that story by Chris Joyner, the oft-quoted legal source Professor Matt Steffey of the Mississippi College School of Law opined that the delay may be due to the complexity of the intent element of the charges against Mayor Frank Melton and Officer Ricio. The Clarion-Ledger story is here:

http://www.clarionledger.com/article/20090220/NEWS/902200357

As Joyner writes:

Even if jurors agree Melton and his former police bodyguard Michael Recio violated the Constitution when they conducted a warrantless raid on a Virden Addition duplex in August 2006, Steffey said the jury has a complicated task in determining whether they did it criminally.
"It requires a complex judgment. There is more than one way to look at the defendants' conduct," he said. "The question of criminal intent is deeply complex."

Professor Steffey is a friend who has provided valuable assistance in several public interest cases I've handled over the years. But this time I think he's off the mark. Title 18, Section 241 of the U.S. Code prohibits:

[T]wo or more persons conspir[ing] to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured him by the Constitution or laws of the United States, or because of his having so exercised the same; or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment or any right or privilege so secured . . . .

I have emphasized the sentence about intent. In the post-Watergate era, the U.S. Court of Appeals for the District of Columbia Circuit discussed what that sentence means. The case was significant: the conviction of former Nixon White House aide John Ehrlichman for conspiring to burglarize the office of Daniel Ellsberg's psychiatrist, after Ellsberg published the "Pentagon Papers."

Listen to Ehrlichman's argument: "Ehrlichman contends that he acted without the requisite “specific intent” to invade Dr. Fielding's Fourth Amendment rights, since he agreed to a search of the doctor's office in the good faith belief that it would involve no violation of the law, constitutional or otherwise."

Sound familiar?? That comes straight from the part of "Frost v. Nixon" where the former President, pressed by David Frost about whether the President can authorize illegal acts, blurts in response, "I'm saying that if the President authorized the act, it's not illegal!"

Here's how the Court of Appeals answered the question.

(t)he fact that the defendants may not have been thinking in constitutional terms is not material where their aim was not to enforce local law but to deprive a citizen of a right and that right was protected by the Constitution. Here, defendants are alleged to have intended to search Dr. Fielding's office without a warrant, and their mistaken belief that such conduct did not offend the Constitution would not protect them from prosecution.

United States v. Ehrlichman, 546 F.2d 910, 918 (D.C. Cir. 1976).

The years may dull the memory, but as I recall President Nixon and his Administration believed that Ellsberg's publication of the "Pentagon Papers" put the American troops in Vietnam in jeopardy and was therefore treasonous. Unlike Watergate itself, there was certainly a potential argument that the President, as commander-in-chief, did have the power to authorize the break-in of Ellsberg's psychiatrist's office to discredit the source of the leak and thereby cause the Viet Cong and their supporters not to rely on the published Papers. (I'm sure Dick Cheney would have agreed with that analysis).

It's certainly more weighty than the Mayor's stated purpose for demolishing the house on Ridgeway.

But it wasn't enough, said the Court of Appeals.

As applied to today's case, the only question is: was the Mayor's aim "not to enforce local law but to deprive a citizen of a right protected by the Constitution,"

or, put a slightly different way in the Ehrlichman case,

Did the Mayor engage in the "knowing performance of acts which, like the unauthorized entry and search at issue here, are malum in se." (that is, "bad" by definition).

That's NOT a very complex question.

Leggo My Embryo

Like many of you, I subscribe to Rep. John Mayo's email list. It is often a useful way to keep up with the Mississippi Legislature; also, the good Representative and his wife are movie buffs, and provide a constant stream of reviews of first-run features.

Sunday's email from Rep. Mayo was a head-spinner. Apparently, the Mississippi House of Representatives has passed a bill that authorizes the adoption of frozen human embryos. Yep, you heard that right. The bill, HB 561, is called "The Mississippi Human Embryo Adoption Act" -- you can find it here: http://index.ls.state.ms.us/isysnative/UzpcRG9jdW1lbnRzXDIwMDlcbm90ZGVhZFxoYlwwNTAwLTA1OTlcaGIwNTYxcHMucGRm/hb0561ps.pdf#xml=http://10.240.72.35/isysquery/irlcca7/1/hilite

According to the bill, there are over 400,000 frozen embryos in the United States. If passed, HB 561 would provide a process for adopting one of them.

Oh, but not everybody can try. Line 215 of the bill states, "Adoption by couples of the same gender is prohibited."

I suppose the argument is that "adoption by couples of the same gender" is not "natural" or "traditional" -- but then, neither is "human embryo adoption," is it?

Representative Mayo, while supporting the bill, objected to this language. As he said in his email:

I find it repugnant that when we get a chance to make a point on this topic we take the opportunity to demean, either intended or unintended, another person who’s not like us, we go ahead and do it.

I moved to amend and remove the language. “It’s already state law,” most said. “If it is, why do we need to take another opportunity to say it?”, I replied.

I do not know why we take every opportunity to say, “You’re not wanted,” especially when we allow children to live with dope head, miscreant single, straight parent mothers at least until the live-in boyfriend shakes the baby to death because it disturbed him at the wrong time.

That's what I call a down-to-earth argument!

But putting aside the gay adoption issue, it's not at all clear that human embryo adoption is a good thing. The Bush Administration gave seven-figure grants to religious organizations that promoted this practice. But over five years ago, Arthur Caplan, Ph.D., director of the Center for Bioethics at the University of Pennsylvania in Philadelphia, exposed the serious problems with the practice. Dr. Caplan started by explaining the embryo surplus:

The woman takes fertility drugs that cause her to produce far more eggs than the one she normally would release during her monthly cycle. These eggs are then surgically removed from her ovaries and fertilized in a dish with either her husband’s or a donor’s sperm.
Often many embryos are created through this process. But since multiple-pregnancies — quadruplets, quintuplets, septuplets and the like — produce premature and often unhealthy babies, doctors will only put two or three embryos back into the woman’s body to try and help her become pregnant.

The clinic chooses to implant the embryos that look the healthiest and asks the couple if they want to freeze the rest. The couple also has the option of having the remaining embryos destroyed, donated to other couples, or donated for embryonic stem-cell research.

So what's wrong with using the 400,000 unused embryos? Dr. Caplan explains further:

[M]ost frozen embryos are not healthy enough to ever become babies. The chance they will grow to full term is about one in 10 for those frozen less than five years, and even less for those that have been frozen longer.

Moreover, using terms like “adoption” encourages people to believe that frozen embryos are the equivalent of children. But they are not the same. In fact, infertile couples who want children can frequently make embryos but they cannot make embryos that become fetuses or babies. . . . .
The inability to make embryos that become babies is why couples turn to donor eggs or donor sperm.

* * * *

“[E]mbryo adoption” . . . . is a nice way to score points with those who advocate the view that embryos are actual babies and should not be used for research purposes. But it is not the best way to help couples who want to have actual babies.

[The money spent on embryo adoption] would be far better spent matching fertile couples willing to make embryos with infertile couples, rather than trying to get them to use unhealthy frozen ones.

Dr. Caplan concluded that the only explanation for a movement to allow embryo adoption is ideology, not medicine. By allowing adoption of embryos, legislatures cater to the ideology of those opposed to stem-cell research (which is conducted with unwanted embryos). And it affirms a reductio ad absurdum of the anti-abortion definition of a fetus as "human life," which will get them points from the Pro-Life League when re-election time comes. But as Dr. Caplan proves, it will NOT help people who want to become parents.

In that context, it makes sense that HB 561 excludes gay and lesbian Mississippians. While you're sucking up to the fundamentalist Right, you might as well go all the way. So to speak.

House of Hypocrisy, Part Two

Our local conservatives are singing from the same hymnbook as their heroes, the House Republicans. One particularly ugly rant was posted on the blog Jackson Jambalaya, attacking an article written by Ronni Mott of the Jackson Free Press. The title of the JJ post was "Is Ronni Mott a Liar, Hack, or Just Plain Stupid?" You can read the whole post here: http://kingfish1935.blogspot.com/2009/02/is-ronni-mott-liar-hack-or-just-plain.html

What the JJ blogger calls a "lie" is this sentence by Ms. Mott: "The [stimulus] bill’s passage proved to be highly partisan—with Obama and the Democrats on one side and the nearly the entire GOP lined up against it—despite the president’s best efforts to reach across the aisle."

Ronnie Mott's whole story is here: http://www.jacksonfreepress.com/index.php/site/comments/stimulus_transparency_021709/

Perhaps our local conservatives should check the actual statements of the House Republicans. Now that the stimulus bill has been enacted into law, they are falling all over themselves to tell their constituents what wonderful things have been included. One of many catalogs of these comments has been posted on Jake Tapper's blog on ABC News' website. You can find it here: http://blogs.abcnews.com/politicalpunch/2009/02/back-at-home-co.html

Here's a sampling of what House Republicans say when they get back home:

Rep. Don Young, R-Alaska, for instance, issued a press release last week heralding how he "won a victory for the Alaska Native contracting program and other Alaska small business owners" by working with Democrats to pull a provision from the Senate bill that he feared would hurt American Indian and Alaska Native owned businesses.

Rep. John Mica, R-Fla., issued a press release saying, “I applaud President Obama’s recognition that high-speed rail should be part of America’s future.”

Rep. Pete Hoesktra, R-Mich., "tweeting" to his homefolks: "If you know of someone thinking of buying first home, now may be the time. Stimulus incentive is very generous! Up to 8k! Check it out."

In New Jersey, Rep. Leonard Lance, R-N.J., toured a Army Corps of Engineers construction site that will likely get stimulus dollars. "This is a classic example of a "shovel-ready' project," he said.

In Kirksville, Mo., Rep. Blaine Luetkemeyer, R-Mo., visited Truman State University where he said: “Within the stimulus package there is some Pell Grant money, which is a good thing. It helps students be able to pay for their education and that's kind of a long term stimulus effect there. I mean obviously that's not gonna provide a job in the next 120, 180 days, but the ability of someone to get an education is an economic development tool."

Sen. Kit Bond, R. Mo., heralded $2 billion in funds in the stimulus bill to jump start low income housing projects. "Bond says the $2 billion amendment is small potatoes in the nearly $800 billion package, but it will save jobs, employing more than 3,000 people in Missouri alone," the local paper reports.

So if Republicans had "no input" into the stimulus package, why are they falling all over themselves to TAKE CREDIT for it?

What happened -- just as Ronni Mott reported -- is that the Obama Administration reached out to Republicans, then included spending items and tax cuts that had their support. (The President also excised items after Republicans complained -- the family planning funds come to mind).

Only after they got much of what they wanted through private discussions, did the Republicans quail about the overall cost of the bill. Their complaint that they "never saw the language" until the day it was proposed rings hollow -- the Bush/Paulson bank bailout was only a page long but had support from both sides of the aisle.

So leave Ronni Mott alone, folks. She's dead-on right. Again.

Johnny-Come-Lately Don't Know Much About History: Why Judge Buffington Was Right

I have to laugh (smiling isn't enough) at the conservatives who are SO up in arms about Chancellor Larry Buffington's appointment of former Mississippi Supreme Court Justice Oliver Diaz to a post as Simpson County Youth Court Defender.

For example, a "Simpson County resident" named Tom Bruckner has announced that he is filing a complaint with the Mississippi Commission on Judicial Performance against Chancellor Buffington. The right-wing (but highly entertaining) blog Y'all Politics reports Brucker's screed verbatim here:

http://yallpolitics.com/index.php/yp/post/simpson_county_resident_to_file_complaint_against_judge_larry_buffington/#When:16:38:00Z

Among other things, Bruckner says:

I attended the Board of Supervisors meeting in Simpson County on February 11 and feel obligated to make a formal complaint against Judge Larry Buffington. His actions warranted a complaint when he used his power as a judge to make an unnecessary appointment, just so one of his friends could earn state retirement.

Put aside for the moment that Judicial Performance complaints are supposed to be confidential (a requirement honored in the breach more than the observance).

ALSO put aside this writer's experience that the Commission never targets judges in the "in" group, and has a history of racially disproportionate prosecutions.

My question today is simple: where, oh where, have Citizen Bruckner and Y'all Politics been? Many of us have, FOR YEARS, attempted to change the system which allows local judges to appoint their public defenders. It creates a situation where the defender feels more obligated to the judge(s) than to his or her own client.

The most recent example has been the debacle with the Mississippi Office of Capital Post-Conviction Counsel under the leadership of former director Robert Ryan. The Mississippi Supreme Court had originally appointed Jack Williams from Oxford to head that office. But when Williams insisted on having sufficient time to prepare capital post-conviction petitions, then Chief Justice Edwin Lloyd Pittman fired Williams and appointed Ryan (without ever advertising for other applicants).

Think Ryan got the message? He filed numerous post-conviction petitions that merely copied and pasted from the prisoner's prior appeals, attached hearsay affidavits from investigators and paralegals instead of from the witnesses they interviewed, fired pro bono investigators who had found real evidence of mental illness and instead filed spurious mental retardation claims without evidence, and in a case where the client WAS mentally retarded, rested his case without calling a psychologist or other mental health expert. "Just going through the motions" doesn't begin to cover it. "Good enough for government work?" Not.

Note: the JFP story I wrote about the execution of Earl Berry, and Ryan's woeful work, is at http://www.jacksonfreepress.com/index.php/comments/the_execution_of_earl_wesley_berry/

The JFP's Ronni Mott did her own excellent reporting on the subject of MOCPCC:http://www.jacksonfreepress.com/index.php/site/comments/dereliction_of_duty_070908/

Did Y'all Politics say ANYTHING about the fact that Ryan evidently cared more about pleasing the Chief Justice who could hire and fire him, than about his clients' welfare? Did Citizen Bruckner? If they did, I didn't see or hear it.

Another example: under Governor Kirk Fordice (of all people), the Mississippi Legislature created a State Public Defender Commission, which was charged to implement a statewide public defender system with the lawyers appointed by a neutral, non-political, non-judicial body. Just think: lawyers for indigent defendants appointed on the basis of merit, not by fear or favor. The PROSECUTORS Association howled after the bill was passed, and succeeded in having it repealed the next session (under Governor Musgrove).

Did the conservatives complain then? I was there, and unless I'm deaf, I didn't hear it.

So clearly, then, our Johnny-Come-Lately Citizen Bruckner and his favorite red-meat blog don't care about neutral appointments of indigent defenders. They're just trying to gore the ox of their choice.

On the other hand, if Citizen Bruckner means what he says, maybe he could persuade his legislators to re-institute the Public Defender Commission. I'm sure Y'all Politics will endorse the idea . . . right?

Until that day comes (watch for the tell-tale outdoor hockey rinks in Hades), Judge Buffington has the prerogative to appoint the lawyer(s) of his choice to be youth court public defenders.

And it seems to me that a former Supreme Court Justice is more than qualified for the post.

A Startling Admission in the Melton Trial

Have we endured so many public integrity trials in Mississippi that we've lost our perspective? Consider John Reeves' opening statement, given at the beginning of the defense case in United States v. Melton. According to the Clarion-Ledger's story, Reeves said:

"A violation of the constitution, by itself, is not a crime."

The Clarion-Ledger story is here: http://www.clarionledger.com/article/20090218/NEWS/902180353/1002/news01

Is that really such a great argument? It's a head-spinner for me to hear the spokesman for a public official admitting that the official violated the Constitution but without "bad purpose." An intent to violate the Constitution IS "bad purpose." The ends, however expedient or worthy, don't justify the means. And in this case, it's not at all clear that the ends were either. Looks like a public official on a power trip to me.