An Unwritten Law

by Laura James

Love triangles turned deadly have been around longer than David and Bathsheba and Uriah, and you know the ending of that story (unless you skipped your true crime lessons from Sunday School). In Michigan in the mid-1950s, the last chapter of a classic love triangle was written in a courthouse, as they so often are these days.

But this case was so sensational that the story achieved national prominence; thousands of articles delved into the details of the tawdry affair; the press of the crowd seeking admittance at the trial shattered two glass doors to the courtroom; and the verdict was a shock only to those who believe in strictly codifying human behavior.

The matter aroused so much interest because the participants were all very beautiful and very wealthy but had the habits and bad taste of the lowest sorts. So many people were touched by this not-all-that-long-ago love disaster that it seems appropriate to change the names. There’s no other mention of the case on the internet.

So meet “Madame Bovary.” Let’s call her Emma. The press will call her “an oval-faced brunette.” In 1944, she was caught in a whirlwind romance in Ann Arbor, falling in love with Kevin, a dental school student, on the eve of his graduation from the University of Michigan. He was six feet tall, dark-haired, and very handsome. They married soon thereafter, and he joined the Navy. She became a loyal military wife and they had three sons together.

After his military service honorably ended, Kevin settled his family in Detroit near Emma’s parents, who loved them both and lavished them with thousands of dollars, setting up Kevin’s dental practice and buying them a mansion. They had servants and a nurse to care for the boys. Imagine Emma as Mrs. Cleaver, in dress, heels, and pearls, but without the vacuum cleaner.

It was then that Emma grew restless and dissatisfied with her husband. She would later describe the eighth and ninth year of their marriage as a “clash of ideologies.” She wanted Kevin to be a “bigger man,” but his main interests seemed to lie only in his home, his family, and his work. “It isn’t anything tangible and it’s hard to explain,” she would say about her curious abstractions. “Kevin never gave me credit for decisions and we had a lot of arguments. I never cared for money as money. I felt it was to be used for the things one wanted. For instance, if I wanted a stick of bubble gum and it made me happy, it should make him happy too.”

Then Emma’s father died, and she inherited a large amount of money. She took to vacationing without her husband and hanging out with divorcees, and sooner rather than later she met Jack, a wealthy industrialist and New York playboy who hung out at the “21 Club” when he was in town and jet-setted across the country. Emma was introduced to him in Florida, and they had three unforgettable dates. On the night she returned to Detroit, Emma told Kevin she wanted a divorce.

The news transformed Kevin in an instant. He turned to drink for the first time in his life and became alternately abusive and pathetic. He hit her once. He threatened suicide. There were scenes featuring a brandished pistol. He pleaded with her. “Even a dog is entitled to another chance,” he told her. But she locked him out of the bedroom. Kevin threatened to knock it down. She called the police from the bedroom phone.

A few days later, she left for New York to be with Jack. When her husband begged for their marriage, she told him to see a psychiatrist. “He told me I should see one,” she said, “that it was I who was all mixed up.” Meanwhile, Kevin moved to a hotel and immersed himself in self-help books like Wake Up And Live.

After Emma filed for divorce, she had a rendezvous with Jack several hours from Detroit in a summer house in Douglas, Michigan. It was no cottage -- there were servants and gardeners and a stunning view of Lake Michigan sunsets. But Emma began to miss her children, or so she said. She phoned home. Kevin happened to answer. An argument followed – “I thought you were in Chicago!” was in the earful Kevin gave her.

The next thing she knew – as she sat on a couch in the summer home, reading a magazine, the lake’s swells singing in the background -- she heard her husband’s voice at the front door, followed by pistol shots. Kevin had tracked them down and promptly shot Jack twice in the chest.

Kevin was imprisoned in the Allegan County jail and put on trial two months later. The case was an exercise in histrionics. Emma bolted from the room several times while others were testifying. Kevin’s father collapsed and had to be carried out. The judge had to hand out tickets in advance after the crowd smashed the glass doors. Journalists came from hundreds of miles around for this one, and each witness was a spectacle.

Kevin’s money bought a good defense – he argued he was not guilty by reason of insanity. Three psychiatrists testified that he was “definitely insane,” in a “post-psychotic stage,’ at the time he killed Jack. The murder was the result of extraordinary events, one expert said; “it’s like striking a match – once you strike it, you don’t strike it again.”

Kevin himself was on the witness stand for less than ten minutes. “I can’t say what I did. I can’t say what I did. I don’t know.”

When the jury retired to deliberate, Kevin spent the night in his jail cell, praying with his cell mate, rereading the many letters sent to him, the only lights he had in the nightmare. Then in the wee hours of Saturday came word that the verdict had been reached. The jury found him not guilty by reason of insanity.

At once, the flash bulbs started popping off, and the expression they caught on Kevin’s face is pure relief. His last words in the courthouse: “I never knew people could be so nice.”

Kevin spent three months at Michigan’s Hospital for the Criminally Insane before the pretense was dropped and he was released. Emma divorced him – he didn’t contest it – and their real names are now quite forgotten.

The legal lesson remains -- statutory prohibitions on murder are sometimes trumped by an older, unwritten law.

Tweet

What Should We Do with Mothers Who Kill?

by Laura James 

  

When a mother cruelly murders her children, the public is often deeply shocked by the crime. Though it's rare, fortunately, a look at the historical record in the United States shows murder of children by their mothers seems all too common.

The colonists in the New World kept records of those who were hanged. One of the most common reasons women went to the scaffold was for the murders of their own offspring. In many instances they were babies smothered at birth, the crime labeled "concealment of birth," and it was for centuries a death penalty offense. But not all of the crimes fit this pattern.

The first known case of an American mother who murdered not an infant but a child, and not to conceal a birth but as an act born of mental illness, took place nearly four hundred years ago. Today we still simply don't know what to do with women such as she, the Medeas of the world, mothers who are as "mad as Ophelia," who suffer from psychosis and murder their own children. Execution? Life imprisonment? Commitment to a psychiatric hospital?

Before Andrea Yates drowned her children, before Darlie Routier stabbed her children, before Susan Smith drowned her children, before Deanna Laney stoned her children, before Maggie Young drowned her five children in a bathtub in 1965 . . . there was Dorothy Talby, the first woman in North America known to have murdered a child while in the throes of delusion. And the date of the event is very early indeed.

Dorothy Talby and her husband John came from England to settle in Plymouth in colonial Massachusetts. The painstaking records kept by the colonists offer a full picture of their life together. After obtaining an allotment of land, Dorothy and John had several children; the last was a daughter named Difficulty, who was baptized on Christmas, 1636.

The Talby marriage was a tortured one. Mr. Talby had difficulties of his own and some suggest he was a poor provider. After the birth of her last child, Mrs. Talby "became melancholy and possessed of delusions." Dorothy quite evidently suffered from a severe mental illness, probably postpartum depression or perhaps schizophrenia, and often threatened her family. Dorothy's husband complained of her bizarre behavior to authorities in Salem, who, in 1937, sentenced her to be chained to a post for "frequently laying hands on her husband, to the danger of his life."

The treatment was ineffective, and she was excommunicated. This was also ineffective. When she became increasingly violent, she was publicly whipped. Then, in 1638, "her mind again became more clouded." The rest of the story comes from the original records:

She believed that God revealed to her the necessity of taking the life of her baby, in order to save the child from future misery. . . . [S]he was led to take the child's life, by breaking its neck. She made no secret of the murder, and when apprehended confessed the deed.

In the [Salem] court, on this day, upon her arraignment, she, however, stood mute a good while, -- until the governor told her that if she did not plead she would be pressed to death. She then confessed . . . she was duly sentenced. . . .

Mrs. Talby asked to be beheaded, but the sentence imposed by borrowed English law was hanging in Boston two days after her conviction in December, 1638. At the time of her hanging, she had to be forcibly detained. When her face was covered with a cloth, she ripped it off and stuffed it in the rope that had been placed around her neck. She was then "cast off, and, after a swing or two, she caught at the ladder."

In another age, Dorothy Talby might be committed to a hospital. Oliver Wendell Holmes thought that tender care for the balance of her life would have been the most appropriate punishment. Today there is no saying what her punishment might be. She might have been executed, if she committed her crime in a death penalty state. She might have been incarcerated. Four hundred years later, we still do not know what to do with Medea.

Tweet

The Troubling Case of Sarah Widmer

by Laura James

In August 2008, 24-year-old Sarah Widmer, of southwest Ohio, died under mysterious circumstances: she drowned in her own bathtub.

The only other person in the home at the time was her husband of four months, Ryan Widmer.

The coroner ruled it a homicide. Mr. Widmer was charged and convicted of murdering his wife. The trial was taped by Dateline. And yet he has many supporters, among them his family and the Ohio Innocence Project -- which took on the case even though it does not meet their criteria (because there is no exculpatory DNA evidence). With the widespread publicity, an unusual case quickly became a very unusual case.


The conviction was thrown out by a judge concerned with the conduct of jurors who went outside the evidence to create their own theory of the case. (Or at least that was the stated reason. If the judge didn't have his own doubts about the verdict, I doubt he would have issued this ruling.) Now Ryan Widmer is about to be retried.


In the meantime, websites tell the tragic stories of this couple. Remember Sarah Widmer is a heartbreaking tribute to the attractive woman who lost her life in such an inexplicable way. Local station WCPO has put together its voluminous coverage. Mr. Widmer's supporters have created a comprehensive website and organized mass prayers.


Did Ryan Widmer kill his wife? How can the drowning death of a healthy young woman be otherwise explained? But there is no motive to be gleaned from the evidence. Was he wrongfully convicted? Was the coroner's conclusion warranted by the evidence? Did our criminal justice system, as extraordinarily deferential as it is to prosecutors, make a grievous error? Or is a guilty man going to go free?


These are deeply troubling questions. Had I been on the jury, I don't know that I could have voted to convict him, based on what I have read. I can't help but think that jurors in the United States today have completely lost touch with the concept of reasonable doubt.

One thing is for certain, to my mind anyway: widespread publicity in any case is a serious threat to a search for the truth. Is this not apparent to us by now? Be it a case in which the evidence of guilt is overwhelming, yet the defendant walks (O.J. Simpson, Robert Durst), or a case in which the evidence is ridiculously thin but the defendant is convicted anyway (Father Gerald Robinson, and, perhaps, Ryan Widmer), journalists and cameras are more often a problem than anything else.


If I ever had the misfortune to represent an innocent person accused of a crime, and if that case were to be heavily publicized beforehand or broadcast live, I would not stand for it. I'd go on a hunger strike until they removed the camera. If, on the other hand, my client was guilty, I'd welcome the publicity. The cameras are monkey wrenches. They mess with the works.


In the Widmer case, we can only hope that the retrial results in the truth coming out.

Tweet

Our Hysterical Media

By Laura James

I have three theories on why the mass media hypes certain types of true crime stories. First, certain kinds of cases hit our buttons and drive up viewership. Second, exaggerating a case to "historic" proportions makes the journalist feel more important, since it strokes the ego to think one is reporting on a history-shattering event. Third, whatever drives up ratings is likely to have a divisive political angle worth exploring for ratings the next day.

Every media outlet in the country is guilty of these sins. I can prove that. Outrageous sensationalism is most often associated with mass murders, especially those committed with a "semi-automatic weapon" (news flash: most guns are "semi-automatic"). Another kind of case that attracts a lot of hype, over-analysis and speculation is the family annihilator.

There are dozens of workplace shootings every year. We'll hear about one and only one, I'd guess, this year. Sadly, that recent massacre took place in a city that had experienced just such a madman's rampage decades ago. Very few news outlets bothered to mention that earlier incident. Why? They prefer to think of every story they cover as unprecedented and unique. Precedents spoil hype.

Here is more proof. The most respected media outlets in the United States sensationalize true crime stories to the point of making blatantly false statements for the sake of a great opening sentence.

The mass shooting at Virginia Tech was not even close to being the worst massacre in US history, or even the worst school massacre in US history. But it was hyped exactly as such by none other than these outlets. (I noted the exact quote in case the links expired, and many did.)

On the Virginia Tech massacre, every single statement a false one:

MSNBC - "the worst school massacre in US history"
ABC - George Stephanopoulos: "The worst campus massacre before Virginia Tech was back in the University of Texas in 1966."
Newsweek - "worst massacre in U.S. history"
Time - "the worst massacre in US history"
Baltimore Sun - "the worst school massacre in US history"
Los Angeles Times - "the worst school massacre in history"
Court TV Crime Library "the worst mass murder in American history," indeed! This is a particularly egregious and unforgivable error on a website that purports to offer encyclopedic treatment of historic crimes, including articles on the Bath massacre and Mountain Meadows.
New Jersey Star-Ledger - "America's worst campus massacre"
Atlanta Journal-Constitution - "worst campus massacre in US history"
New York Daily News - "the worst campus massacre in American history"
Troy Record - "the nation's worst massacre"
WorldNetDaily - "America's worst school massacre"
Campus Times - "worst school massacre in United States history"
Shreveport Times - "worst massacre in American history"
Asheville Citizen-Times "The worst massacre in U.S. history"
Janesville Gazette - "the worst massacre in US history"
Roanoke Times - "worst school massacre in US history"
Daily Titan - "worst massacre in US history"
Bakersfield Californian - "the worst massacre in the country's history."

You'd think the press would've remembered having to correct their reporting when they erroneously fluffed the Columbine massacre as the "worst ever." Oops - I assume too much - did they correct themselves?

For the record, the worst school massacre in U.S. history took place in Michigan. The worst massacre ever is more difficult to discern because of all of the horrific examples. There was never a need to exaggerate any of them.

* * *

Once a newspaper touches a story, the facts are lost forever, even to the protagonists.

--Norman Mailer

Tweet

Septic Tank Evidence

by Laura James

Unfortunately, septic tanks sometimes end up holding more than household sewage. Occasionally they have been known to yield the bodies of women who have been murdered, usually by very foolish men who think that nobody will ever think to look in the septic tank. Sometimes it might take a while, but eventually, both septic and murder will out.

Recently I learned that a more mundane sort of evidence can be found in septic tanks, placed there by those making the same foolish mistake of thinking that a septic tank is a good place to hide evidence.

I had my septic tank pumped out recently. The fellow who did this nasty business for me regaled me with a curious story.

Larry explained that he had been the "star witness" in a few divorce cases. I wondered where he was going with this. This was a surprising thing to say, as Larry fit the image of a man who spent all day with septic tanks, not a star divorce witness. He wore a University of Missouri T-shirt. I had asked him if he was from Missouri, as I've been spending a lot of time there lately. "It's just a shirt," he said sheepishly. He proceeded to tell me how he's come to be subpoenaed for the third time to testify.

Women, it seems, flush things down the toilet that they shouldn't, besides tampons. (Flushed tampons cause no end of trouble to public sewer systems everywhere, because the strings never dissolve and they get entangled in tree roots, causing massive plumbing blockages.) There's something else that shouldn't be flushed -- into a septic tank anyway -- and that's a used condom, particularly one that is being flushed by a woman whose husband has had a vasectomy.

Larry the septic tank hauler has had to testify three times now that condoms, when flushed down a toilet and into a septic tank, will float on top until someone like Larry pries off the lid and reveals more than the usual septic tank contents.

Tweet

A Particularly Unsettling Exoneration

by Laura James

The Court of Appeals said the evidence was "overwhelming." Nathaniel Maurice Hatchett confessed to carjacking and raping a woman. The victim identified him as her attacker. He was caught driving her car three days after the crime.

Yet Hatchett walked out of a Michigan prison after serving 12 years, because the semen found on the victim did not match him. The current prosecutor remarked: "We went back in and did a full investigation. We could have fought for a new trial, but our job is to seek justice. It was served today."

Now for the unsettling part: the prosecutor, trial judge, and Court of Appeals knew at the time of his trial that the DNA from the semen did not match the defendant, but the 17-year-old was convicted anyway. It now appears that the only "overwhelming" evidence in State v. Hatchett was of prosecutorial abuse and judicial incompetence.

They also knew that when Hatchett was caught with her car, the ignition had been popped out. Curious. The carjacker left the victim on the side of the road and took off - with the keys in the ignition. Why would he break the steering column if he had the keys? They also knew some details from the confession did not match the victim's account. For example, the defendant denied robbing her. The most burning question concerned the DNA result. When weighed against a victim's cross-racial identification, even against a confession elicited after several hours of interrogation of a teenager, isn't DNA evidence from semen, in a rape case, a trump card?

Apparently not. Said the trial judge: "[The DNA can] hardly be found to represent a reasonable doubt considering all of the evidence in the case. The court does not find that the laboratory analysis is a fact which would lead to a verdict of acquittal."

DNA - not exculpatory? I find that logic quite strange. By the way, that trial judge is now a federal judge - appointed by President William J. Clinton.

But surely there are smarter judges at the Court of Appeals level, right?

The appellate decision is available online. The bizarre logic applied by the unanimous, three-judge panel that affirmed Hatchett's conviction makes for hair-raising reading. Said the Court of Appeals: "We agree ... that while the DNA test results introduce a slight doubt ... there are several plausible explanations for these results." The Court of Appeals goes on to give two "plausible explanations." Not "several." Two.

One: "The victim told the treating nurse that defendant ejaculated 'on' her, and she told the treating physician that she was only 'fairly certain' that defendant ejaculated at all; therefore, it is altogether possible that defendant's semen would not be found in the victim's vagina or in her underpants."

This is quite curious reasoning. Someone's semen was found on the rape victim. Do these three judges have their heads in the sand? How can the judges choose to question the victim's veracity when she described her attacker's ejaculation while simultaneously refusing to harbor any doubt about her identification of Mr. Hatchett as the rapist? They said her evidence was "overwhelming" - and I guess it was, except for the details.

Two: "The donor might have been the victim's spouse." That is a plausible explanation. So why didn't they obtain a racial profile from the DNA? Or better yet, test the husband? When 25 to 40 years of a man's life are on the line, why was that question posed but not answered?

As it turns out, the husband was in fact tested. He did not match the DNA from the semen. The prosecutor never brought that fact to the attention of the defense attorney, the trial judge, or the Court of Appeals. He is still a prosecutor today - and he actually denies knowingly putting an innocent kid in prison, all evidence to the contrary notwithstanding.

Unfortunately, nothing will come of it. The prosecutor won't be affected. The trial judge now has a lifetime appointment. None of the appeals court judges will even see their names in the paper, let alone be made to feel like court jesters, as they should. Judges William B. Murphy and Donald S. Owens are still sitting on the Court of Appeals.

Mr. Hatchett is the 216th person freed by DNA, his exoneration coming at the behest of the Thomas M. Cooley Law School's Innocence Project. What a shame for Nathaniel Hatchett that 12 years had to pass before the DNA evidence that was there all along was brought to the attention of fair-minded men.

Tweet

Collecting Commentary for a New Edition of The Michigan Murders

by Laura James

Years before Ted Bundy began his killing spree, John Norman Collins terrorized two university towns, assaulting and killing young women. When he was finally caught by his uncle, the "Co-Ed Killer" had inflicted harm in many forms.

Photo: John Norman Collins today. Via Michigan Offender Tracking Information System

Those who hail from around Ann Arbor and Ypsilanti, Michigan, still recall this time of terror. These murders affected people deeply. As one remarked to me, "Several bodies of the victims were dumped within several miles of my childhood home. It made my father crazy and paranoid, and other people I talk to who were in Ann Arbor -- or in places where the murdered women grew up -- during that period have vivid recollections about the murders, investigation, trial, and conviction of John Norman Collins."

Collins once appeared on a local TV show, Kelly and Company. Some involved in the trial also spoke. The video can be seen on Youtube.

The University of Michigan Press is about to issue a new edition of the seminal book about the case. It is The Michigan Murders by Edward Keyes, which is on many "best of true crime" lists.

The new edition will be replete with commentary from Michigan true crime author Mardi Link, whose books and website I know and admire. She will address the police work that went into capturing Collins and what detectives might do differently today.

The new edition will also feature a prologue that I will write about the social impact of the murders themselves. It will include stories of how the murders affected and changed people. If you remember Collins and have a story for the book, please share it.

Tweet

The Supreme Court and DNA: I'm Embarrassed for Them

by Laura James

The United States has always been woefully behind when it comes to forensic science. The forensic techniques so critical to criminal justice today were all discovered in Europe.

From fingerprints to arsenic tests to DNA, European scientists and European courts have led the way for centuries. And in 2009, that continues to be true.

In June 2009, the Supreme Court of the United States, on a 5-4 vote, refused to help an inmate whose access to DNA evidence was blocked by the state. The Supreme Court refused to acknowledge a right to DNA testing. The opinion is an embarrassment to me as an American.

Even though the Chief Justice acknowledged, right up front, that DNA evidence "has an unparallelled ability both to exonerate the wrongfully convicted and to identify the guilty," the Supreme Court said it is comfortable leaving it up to individual states to decide how much access to grant for DNA testing. And if they don't allow it, well, that's too bad.

The stated reasons for this decision were federalism -- the idea that each state is a nation unto itself -- and "finality" -- the idea that judges are too lazy to hear umpteen appeals. How deplorable of a court to cite "finality" -- to my way of thinking, a case isn't "final" until the execution is held or the sentence served.

But in the opinion filed by Justice Alito, you see a hint of the truth. In reality, the justices just don't think all that much of DNA evidence. Justice Alito (page 31), claims that DNA "often fails" to provide clear proof. He quotes resources on the difficulty of collecting crime scene evidence. He doesn't believe in the science.

The bottom line is, until we get a Supreme Court with faith in science in America, a convicted man can have access to potentially exculpatory DNA evidence depending on where he lives.

In Kentucky, only death row inmates are permitted access to DNA evidence. So if you're serving forty years for rape, tough luck.

In Alaska, a prosecutor can block your request for exonerating DNA testing for no logical reason. Tough luck, folks.

In America, we ought to have more respect for DNA evidence. I can't help but wonder if the United States Supreme Court would think more of DNA evidence if the science had been developed in the United States to begin with. Meanwhile, my inner flag dips as I hope that other countries and other justice systems continue to look elsewhere for leadership in forensic science.

Tweet

The "Best" Spousal Murder Stories

by Laura James

Books about spousal murder, when done well, can make for the most insightful psychological reading around. That's why we love to read them. That's why we love to study these cases. That's why spousal murders have been one of the most perennially popular themes in literature, fiction and non-. When we crack open the bedroom door on a marriage that went to hell, we often wonder, do we see anything recognizable?

The greatest strength and appeal of well-written books in this theme lie in the psychological analysis of the principals. Sometimes this is done by the author, who comes right out with her conclusions about the causes of matrimonial disasters. Sometimes the facts speak for themselves, and perfect reporting with nary a hint of error or fictionalizing can speak powerfully to the character of the husbands and wives who end up at one another's throats. By the time we're done with the best of these books, we can fathom the endings.

The best five books about a spousal murder that I have ever read -- the most insightful, the most revealing of the nature of a couple -- strictly non-fiction, true crime, of course -- are these five books.

A Crime of Passion by Stanley Loomis - L'Affaire Praslin, a spousal murder story of great human drama involving French royalty, played out in the weeks immediately prior to the bloodbath of 1848. Searing in its perceptions of the husband and wife -- a Duke and Duchess, murderer and murderee -- it is a terrific book published forty years ago that deserves to be better known and loved today. It's a true spine-tingler.

Until the 12th of Never by Bella Stumbo - The murder of Dan and Linda Broderick by Betty Broderick. It’s impossible to finish this without having a strong opinion on the case.

Dead by Sunset by Ann Rule - The murder of Cheryl Cunningham by Brad Cunningham. Said Kirkus: “This book is better plotted than the murder itself.”

She Wanted It All by Kathryn Casey - The murder of Steve Beard by Celeste Beard and Tracey Tarlton. An even better title might have been She Couldn’t Wait.

Gone Forever by Diane Fanning - The murder of Susan McFarland by Richard McFarland told in chilling detail through the victim's diary and the murderer's confession.

I'd love to hear your suggestions along these lines... or the reason you find yourself drawn to macabre stories of marriages that ended in bloody tragedies.

Tweet

Your Dog Won't Get You Out of Jury Duty (unfortunately)

by Laura James

About 15 or so years ago, many states in the United States moved from voter registration to driver's licenses to choose jury pools. This decision has had terrible consequences for the criminal and civil courts. The worst: the quality of the average jury has plummeted.

It was an understantable move. In the interests of increasing racial diversity in jury pools, driver's licenses were seen as a way to broaden the pool.

But in doing so, they picked up every felon who isn't eligible to vote -- and every citizen (and non-citizen) who cares so little about current affairs that they don't bother to register. People who lack enough interest in government to cast a ballot get to cast ballots in murder cases. Go figure.

If you ever find yourself puzzled over some high-profile verdict, if you ever find yourself wondering about the quality of the average jury today, well, here may lie part of the answer.

It's very, very unfortunate. Yet the decision will probably never be reversed.

On the other hand, the excuses for getting out of jury duty may have gotten more creative since the switch. This gem recently emerged from the courts of Montana. It's an affidavit completed by someone chosen for jury duty who didn't want to serve -- and the resulting court order by a teed-off judge, and it's making the legal rounds of lawyers these days via email.

In it, a fellow declares: "Apparently you morons didn't understand me the first time. I CANNOT take time off from work. I'm not putting my familys well being at stake to participate in this crap. I don't believe in our "justice" system and I don't want to have a goddam thing to do with it. Jury duty is a complete waste of time. I would rather count the wrinkles on my dogs balls than sit on a jury. Get it through your thick skulls. Leave me the f**k alone."

And the resulting court order read as follows:

CITATION FOR CONTEMPT
THE FREEDOM AND LIBERTY THAT MR SLYE ENJOYS DEPENDS UPON THE VOLUNTARY SERVICE OF JURY DUTY, THEREFORE, IT IS HEREBY ORDERED THAT ERIC SLYE BE AND REMAIN IN THE COUNTY JAIL FOR 20 DAYS OR UNTIL HE RECANTS HIS CONTEMPTUOUS CONDUCT IN OPEN COURT. MR. SLYE'S FAMILY MAY VISIT HIM ON WEEKENDS BUT HIS DOG SHALL STAY AT HOME UNMOLESTED BY THE DEFENDANT.

Tweet

DNA Matters, Except When it Doesn't?

by Laura James

"DNA ought to humble us. But it doesn't humble some people."

--Attorney Jed Stone

The Chicago Tribune ran a story by Steve Mills recently about some pending murder cases in Lake County, Illinois that ought to put the voters of that county on notice: your local department of justice has a moron on staff. If you have more integrity than your local prosecutor's office, you need to elect someone else.

In four rape - murder cases - involving female victims who were eight, nine, eleven, and sixty-eight - the DNA from the semen did not match the man charged with the rape and murder.

The prosecutor is pursuing these cases anyway, waving away the DNA evidence and the science upon which it is founded as a "red herring."

You read that right - these girls, this elderly woman were raped and some also murdered. Semen was recovered in each case. It did not match the suspect. The suspect was charged anyway, despite the fact that the prosecutor offers no logical explanation for the presence of semen that does not match. If there were evidence of two assailants, this might make sense. But there's not. And it doesn't.

Despite these DNA results, despite the fact that the source of DNA is semen, the prosecutor is getting convictions. How? He claims that the semen/DNA is from "contamination." That argument was not only permitted but was successful in the case of Juan Rivera, convicted of murdering Holly Staker again last month, even though DNA testing proved that he was not the source of semen found in the victim's body.

Where is the flipping judge, I'd like to know - how could he let this case get to a jury in the first place? How could he let the prosecutor make such specious arguments? From here he looks like yet another empty robe sucking up an unearned paycheck.

Some observers - like the Daily Kos, Mothers on a Mission to Stop Violence, Chicago Lawyer Magazine, Reason Magazine, and Northwestern University law faculty - are rolling their eyes at the ludicrous dismissal of the DNA evidence. But they don't have a vote, and jurors are buying it.

As one observer notes, it's "very rare" for a prosector to continue with a case when DNA excludes a suspect.

Unfortunately, I know it's not really that rare. A DNA exclusion did not prevent Michigan authorities from imprisoning Nathaniel Hatchett for rape. Twelve years is what it took before someone who knows something about DNA refused to accept the prosecutor's flimsy arguments. Shame, shame on the judges who permitted this man to go to prison for rape when the seminal DNA excluded him as the rapist!

And it happened in Toledo. I watched it happen on television in 2006 when Father Gerald Robinson was convicted of murder despite the fact that a male DNA profile obtained from the victim's clothing and bloody fingernails did not match him. The prosecutor's argument? The DNA is from "contamination." But there's some good news in that case: The Ohio Innocence Project just joined his defense team.

I am seeing more and more of these cases - representing more and more prosecutors who won't let a lil' ol' thing like DNA get in the way of a conviction. Alas, some juries are willing to accept this. Indeed these cases are becoming so common I wish someone would coin a term for it. "DNA non-match" cases isn't very catchy.

For many years, lawyers and journalists have lamented what is sometimes called the "CSI Effect" -- the expectation by jurors that cutting-edge scientific techniques will give them a definite answer in every case.

What can we call it when jurors ignore DNA that doesn't match the man on trial?

Tweet

On a lighter note... Can Madonna Sue?

by Laura James

The women who contribute thoughtful essays to this crime and justice site are serious professionals who grapple with profound and controversial legal questions. Hopefully they'll indulge me for considering a relatively frivolous legal issue today.

Some are honestly wondering about the legal ramifications of Madonna's recent fall from a horse, which her publicist blamed on an aggressive paparazzo. Her injuries, thank goodness, don't seem serious. But the incident offers a chance for a bit of exposition and education on the laws of personal injury. Can she sue? Would she win? Could she collect? The answers are sure, maybe, and probably not.

Can she sue?

Anyone with a hundred-dollar bill can file a lawsuit. The Material Girl didn't earn that moniker for nothing, so this one is a gimme.

Would she win?

Assuming that what her publicist says is true -- a photographer jumped from some bushes and scared her steed -- she'd have a pretty good case. If it came down to a he-said-she-said debate, she could get to a jury with it, and the jury would decide who is telling the truth.

Everyone, everywhere, at all times, has a "duty" under the law to act as a reasonable person would act in the same situation. That legal standard is vague, and it's usually up to a jury, and not a judge, to decide whether someone's actions were reasonable under the circumstances. I don't think it requires anything more than common sense to know that startling a horse can cause injury to its rider.

The department that rendered aid to her is releasing its own opinion on the matter. I found their statements rather curious. If Madonna said nothing to them about the photographer, that is neither here nor there. In the usual trip-and-fall, there's no reason for a responder to deeply delve. "How did this happen?" "I fell from my horse." That's as much of a conversation as I'd expect to see reflected in a police report.

Could she collect?

Assuming the jury believed Madonna's version of the dustup and gave her, say, a small verdict to compensate for a few hundred dollars in medical bills and a day or two of mild pain and suffering, collecting would probably be a challenge.

The press says he was a freelancer. Since he had no regular employer that could also be held accountable for his actions, there would be no insured corporate deep pocket to shake down. As a private person, he might own a home and might have homeowner's insurance. But it probably isn't much, and it might not cover such a claim since it arose from his line of business. Most homeowner's policies have limits or exclusions when you're sued because of the work that you do.

Believe it or not, as a rule lawyers do not like to pursue the personal assets of tort defendants (unless they've done something particularly egregious, and even then, I don't know many lawyers who would push to collect personally from an uninsured or underinsured person). If the jury did slam the fellow with a large verdict, he would have the option of filing for bankruptcy and blowing out the judgment there.

So even if Madonna did win a lawsuit against the fellow, she'd probably have a devil of a time getting any money from him. That's not to say I wouldn't take the case. If she needs a lawyer to handle the claim, gosh, I'm available!

Bottom line: While Madonna has credibility problems in general and a lifestyle that most people disdain, the paparazzi aren't doing much better these days in the court of public opinion. Given all the times when some jerk of a photographer sued a star for some stupid dustup, it might be fun to see the shoe on the other foot.

Tweet

When Is It Too Early to Publish a Book?

by Laura James

Long gone are the days when a true-crime author—like William Roughead, or Truman Capote more recently—waited until after the verdict to write the whole story (or, in Capote's case, after the hangings). In the instant era, books speed to release, and the publishers are becoming even quicker about releasing true-crime titles in particular.

Readers seem to be of two minds when it comes to quick releases.

Many say they won't read a book that comes out before the trial even starts. Others hold that a book can be quickly written and still be well done. But if put out early, the timing of the release will dominate all reviews forever.

Some readers are really unhappy.

On a book about Laci and Scott Peterson: "This was obviously written BEFORE the trial and has no pertinent information at all about what happened after Scott's arrest. Hardly the 'whole story' advertised."

On Robert Graysmith's book about Bob Crane: "We learn nothing about Carpenter's trial (an integral part of this entire story) because Graysmith and the publisher couldn't seem to wait until the trial was over, to send this book to the press."

On another true-crime title: "I also don't understand why this book was written before the trial."

The booksellers who specialize in true crime consistently tell me that many true-crime fans buy not the first book about any given case but the fourth or the twelfth or the twentieth. Many of us who study human depravity for a pastime or a career find a case that especially intrigues us, and we read everything we can about it. Some cases that have inspired such intense study are Lizzie Borden, Bruno Hauptmann, Jack the Ripper, and so on. So the first book a reader buys may well not be the last, particularly if the first isn't entirely satisfying.

Readers are fickle and inconsistent, simultaneously lamenting early books while snapping them up. . . . One writer recently picked up an early book out about Austria's Fritzl case and reports: "If you want to read Monster, I'm afraid I bought the last copy at Borders. But just wait a month or so, and I'm sure there'll be more comprehensive alternatives. It's perverse, I know. But I can't wait."

Though quickly produced true-crime titles will always have their critics, in the end it is the quality of the publication and not its release date that matters the most, don't you agree? Is there a line to be drawn? After the verdict? After sentencing?

Readers, writers, and publishers can't seem to make up their minds, but one thing is certain: more of these quickly produced books will be on the shelves in the future (and Kindles, and cell phones. . . .)

Tweet

Why Crime History Matters

by Laura James

Unfortunately, the media often errs badly in its crime reporting because some reporters don't know a thing about the history of crime. And I guess they're too lazy to look it up before speaking on the subject.

For some reason, the natural tendency is to make it up—and get it wrong.

And that's too bad, because many times, some historical perspective might inform any given situation.

One example everyone knows: the press has erred badly in its coverage of the JonBenét Ramsey case on one small but perhaps important detail.

"Sex murderers never leave ransom notes." That's what the experts told us in the JonBenét Ramsey case. For years, in fact, that "fact" has been repeated.

It's always dangerous to talk in absolutes when the subject is human behavior, but there you have it.

And it wasn't true. One has to wonder just how much this error colored early perceptions of the case.

William Heirens was a sex killer. He left a ransom note. He kidnapped a little girl from the bedroom of her family home in the middle of the night, and later raped and killed her. Then he went on to kill again.

His name should sound familiar. No other inmate alive in a U.S. prison today has served longer than William Heirens, who went to prison in 1946. That's sixty-two years, and counting, behind bars.

While the press often get their precedents messed up, another type of error is more common: the tendency of some reporters to grossly exaggerate the historical significance of an event that is already, in and of itself, a very shocking crime that requires no exaggeration.

Reporters covering the terrible shooting massacre at Virginia Tech in 2007 called it "the worst massacre in U.S. history." That's a verbatim quote from Newsweek and from Time and from many, many others. No adjectives were omitted. And it was just flat-out a misstatement of fact.

Was it hysteria that caused so many journalists to overstate the matter as they did? Really, "the worst massacre in U.S. history"?

Thirty-two people died at Virginia Tech (Wiki).

That is far less than the Oklahoma City bombing (168 victims), Wounded Knee (300 victims), Mountain Meadows Massacre (100+ victims), or 9/11 (2,998 victims).

Alas, the terrible shootings at Virginia Tech could not even be called the "worst school massacre in U.S. history," though dozens of media outlets in fact did call it that.

It wasn't. A sad record still stands. The worst school massacre in U.S. history remains the Bath School Massacre, which claimed 45 lives in 1927. Not everyone has forgotten them.

Tweet