Proof Beyond a Reasonable Doubt

by Katherine Scardino

Proof beyond a reasonable doubt is a tough burden for the State to meet. The article written by Andrea Campbell and published on Women in Crime last Friday, which discussed the many different types of evidence that may be presented in a criminal trial in the United States, within the context of the Casey Anthony trial. The State may obtain a conviction based solely on circumstantial evidence. Circumstantial evidence points to the guilt of the defendant, but is not tangible evidence to connect the defendant directly. In other words, there are no crime scene fingerprints, DNA, eyewitnesses to the crime, etc... pointing directly to the accused as the culprit. The jury may render a verdict of guilty based solely on such circumstantial evidence if the jurors believe beyond a reasonable doubt that this evidence is credible and proven. But, I do not want to write another Casey Anthony article. Let’s look at evidence another way.

I wrote an article a few weeks ago about the recent flurry of powerful men who had been accused of, to say the least, low morals - or as I wrote - acting like pigs. Along with others, I mentioned Dominique Strauss-Kahn and even violated my own rule by lumping him in with those other men, mainly politicians, who seemed to have a problem keeping their pants zipped. Mr. Strauss-Kahn was a little different in that he was actually accused of committing a sexual assault against a maid in his hotel. His position rose to a higher level of accountability and a higher level of loss. He was not looking at an angry, vengeful divorce but the possible loss of his freedom and certainly his reputation and stature in the world.

I think the circumstances surrounding Dominique Strauss-Kahn’s arrest and subsequent public disclosure in shackles are an embarrassment to the United States. We pride ourselves on the basic tenet that here, in the good old USA, a person accused of a crime is innocent until proven guilty. You hear this constantly. Is that really true? I can answer that as a resounding “No." I can stand in front of a jury and state that each juror must believe that the accused person, standing before you prior to the jury hearing all of the evidence, is an innocent person. But, the mere fact that there is a person accused of misconduct standing in the courtroom around a counsel table with prosecutors, a court reporter, a judge and now a jury, is a weight that bears on the side of the prosecutor. The accused should not be judged in the news media like Mr. Strauss-Kahn was. We should never have arrested him without having done the smallest bit of investigation to at least make the evidence appear credible. 

In Federal court, the general rule is that when a Federal Grand Jury indicts a citizen of the United States, the US Attorney’s office has already conducted an investigation sufficient to believe that the accused is actually guilty. Don’t get me wrong - that does not mean that he is truly guilty, but it should mean that the US Attorney has enough evidence to get in front of a trial jury. 

The New York prosecutor jumped the gun on Mr. Strauss- Khan. The media reported that he was hoping to run for Mayor of New York and wanted the publicity. I do not profess to know his reasons with certainty. My complaint with the manner of Mr. Strauss-Kahn’s arrest is that there appears to have been zero work done on the credibility of the State’s evidence prior to his arrest. If the district attorney had done a small amount of investigation, he would have uncovered what he now is stating publicly - that the alleged victim is not a credible person. That does not mean the act did not occur. It simply means that he cannot take his case to a jury because he does not have the right kind of evidence that he can support.

So, what will happen now? The district court judge released Mr. Strauss-Kahn from house arrest. I do not know what other bail restrictions were lowered for him, but the dismissal from the prosecution should be coming soon. Where does that leave the United States? How about red-faced?

Is this a lesson for those of us who appeared so eager to accept the maid’s story as credible? It is easy to jump immediately to a conviction in cases of sexual assault. After all, why would a woman lie about that? In this case it could be money, publicity, attention, a twisted sense of need, or a combination of all of those things. If, in fact, a dismissal of all charges against Dominique Strauss-Kahn occurs, as seems likely, we owe this man an apology.

Which brings me back, briefly, to Casey Anthony and the burden of proof. In cases where the State is trying to terminate a parent’s parental rights - the most serious case in the world of Family Law - the burden of proof is “clear and convincing evidence.” That evidence is weighed by the jury and the side who has the greater weight of evidence wins. That is a lower burden of proof than in a criminal case. Beyond a reasonable doubt is a phrase that is not defined in our Penal Code. It is not the CSI phrase that is used in error - “without a shadow of doubt." Each juror must look at the evidence and form his or her own opinion whether the evidence reaches the highest burden of proof in our country, that of beyond a reasonable doubt. It is my opinion that a capital murder trial where death is an option should not be decided on evidence that is loose or circumstantial. Apparently, the Casey Anthony jury agreed.

So, those of you who are amazed at the verdict, think again. The State decided to seek the death penalty against a woman without having evidence that rose to the highest level of proof, and these twelve individuals analyzed this evidence carefully and all twelve, unanimously, agreed that the proper verdict was not guilty. That does not mean she is innocent. It means the State could not give them enough evidence with which to convict, evidence that rose to the highest level of proof, which was their accepted burden. The jury did what they all believed was right.

Let’s put Mr. Strauss-Kahn and Ms. Anthony together. Mr. Strauss-Kahn’s case should have been investigated enough for the prosecutor to see whether he had sufficient evidence that could rise to that level of proof. The New York prosecutor has publicly admitted he has a problem with his evidence. The prosecutors in the Casey Anthony trial looked at their circumstantial case and believed that they could convince a jury that their evidence did rise to that level of proof. They just made a serious mistake because they underestimated the citizens who they helped choose to render a verdict.

photo credits: Parti socialiste, billaday

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It Really Was Weiner’s Weiner

by Katherine Scardino

In May I wrote about the seemingly overload of male "pigs” - defined as men who had too much power and not enough common sense. I asked you at the end of that post in Women in Crime to “stay tuned. I’m sure there’s more!” And, sure enough, along comes this weirdo Congressman from New York, Anthony Weiner. I admit that I did look at the tweeted photo of his covered weiner and was totally unimpressed. But, what makes Mr. Weiner interesting to me now is that he was sexting, which I also wrote about last February, asking how did we, as a nation, get to the point that having sex via satellite was, well, sexy?

Early on, when the scandal first became news for almost all breathing Americans over the last several weeks, I felt that he should stick it out (no pun intended...) and keep his job. He was elected to Congress by the citizens of New York, and I did not see that anything he had done was really any of my business - taking into account that sexting has become somewhat routine for a large portion of the population of the United States. I believed that if the citizens of New York wanted him out of office, they should do so by their vote.

Then, things got a little more serious. As I understand there were several tweets to various women that were more than a little suggestive. I have not read them, but I would love to read the words and form my own judgment as to whether they are truly offensive to the general public, and really, whether the general public has any business reading them or, for that matter, looking at any private photograph that he has tweeted to “friends." Do these stupid, irresponsible, personal acts interfere with his job? Did we all think the tweets were so offensive because he is a married man? And, married less than a year to a very beautiful, successful woman. Does that fact change anything for us?

I noted that his wife was not “standing by her man” in any of his comments to the press, and especially during Mr. Weiner’s press conference when he officially resigned his position. I read in an article recently that women today are not like the women of ten years ago or longer. Women no longer feel the need to suffer embarrassment and ridicule just because they are the “loyal wife.” Strong, successful women today look at these men and can actually make individual judgments about the stupidity of their husbands and decide they do not wish to play the game. I give you Maria Schriver Schwarzenegger as a perfect example. Granted, her husband, the Governator, committed acts that were a bit more serious than Mr. Weiner and his weiner. But, nevertheless, she did not even make an attempt at excusing him or standing with him at any public announcement. I, personally, commend these women. Sometimes, spouses do such irresponsible, illogical and basically dumb things that it overcomes any thought of loyalty.

But, I want to talk a little more about sexting. Would someone out there please tell me why sexting is a happening thing now and especially why is it occurring among our young people? Can they not find a bed? Or the back seat of a car, as I recall... (no more about that!) But, at least my transgression with a high school football star was in person and not via satellite. Is it because the younger generation has grown up with social media: emails, text messaging, IM’s, Facebook, Twitter and now Skype, and that all emotions in any kind of relationship are relayed via these non-personal methods? Is there anyone out there who still believes that a personal conversation is better when  it is actually personal? That sex is really better when it is done in a prone position of some kind on some sort of flat surface - and in the privacy of someone’s home, car, kitchen, back yard, pool, hot tub, floor, etc...

If we are all involved in the computer relationships, how much do you learn about being social and about interacting in society with another student, teacher, parent, employer? Can these kids even talk? I know a young man, now age 25, who grew up in his room in front of a computer. And no, it is not one of my sons! For years, he could not speak in person except for an occasional grunt. We had to learn which sound was a positive sound and which was a negative sound. Over the last few years, he has matured and gotten a little better, but it is still definitely troublesome for him to speak aloud to another human.

But, back to Anthony Weiner. For people in public office, I would imagine that satellite communications of all kinds are a godsend to politicians. Think how many people they can reach via email and other methods of communication - all without leaving their desk. The idea of sending a photograph of a private part was not envisioned by the creators of these new methods of communication, but it became too easy.

So now, ex-Congressman Weiner, you have lost your job and perhaps your pregnant wife as well. But, why was he railed on so hard? Dare I even mention John Kennedy? He had sex with any person with the appropriate equipment, and some even in the White House, his home where Jackie and the children also lived. No one said anything about any of that activity until after his death. Or, Franklin Roosevelt, whose true love was not really Eleanor, but instead her one time social secretary Lucy Mercer, with whom he carried on a 30 plus year affair. The list goes on and on: Bill Clinton, John Edwards, Rudy Giuliani, Newt Gengrich, Eliot Spitzer.  And, I have not heard any news reports for weeks now about Arnold Schwarzenegger. And, who - or where - is Mark Sanford these days? So, why the big deal about Anthony Weiner? What do you think?

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Are Men Really Pigs or Does It Just Seem That Way?

by Katherine Scardino

I have consciously made a sincere effort to ignore all the media attention to the latest in a long line of powerful men acting like whore dogs. I thought this subject may be improper for Women in Crime, but then we had another news flash about the French presidential hopeful, Dominique Strauss-Kahn actually getting arrested and accused of raping a maid in his glitzy hotel room in New York. This accusation caused a buzz in the United States as well as all over the world.

The French people got angry at us because our system allows the accused to do the famous “perp walk.” The French believe that doing the “head down, handcuffed” walk into the courtroom creates a sense of guilt in the minds of people who watch it. In this case, most of the citizens of planet Earth saw the haggard, unshaven, unkempt man in an expensive business suit walk handcuffed and led by several police officers. The New York City mayor made a comment, like “don’t do the crime and you won’t have to do the walk” or something to that effect - which just reassured the French that the American system of justice is screwed up. But, why would he risk losing his marriage, political career and friendships over one impulsive urge?

Now Mr. Strauss-Kahn is in serious trouble. But, his trouble is more seriously psychological and mental than the other men we have read and heard about in the media. Take John Edwards, for example. What a true pig. While he was running for the vice-presidency, he was having an affair - and at the same time his wife of several decades was dying of breast cancer. Oh, and then to top this off, as if that was not bad enough, we learned that he had fathered a child by his mistress while married to his dying wife. Prior to the “honorable” Mr. Edwards, we heard all about Newt Gingrich having not one, but two affairs in two different marriages. One affair was going on at the same time he was standing on the floor in Congress berating Bill Clinton for getting it on with Monica Lewinsky, an aide in the White House. At least Eliot Spitzer just had flings with prostitutes--nothing serious there--while married to his very elegant, rich wife. The one I really liked was the governor of South Carolina, Mark Sanford, who disappeared from his political staff, and I suppose his wife, for several days. He told everyone he was going to hike the Appalachian Trail, but he was really enjoying the sun in South America with his latest squeeze. For heaven’s sake, Mark! At least come up with an excuse that sounds better than that.

And, last but certainly not least, here comes the Governator Arnold Schwarzenegger. We learned this week that not only was he having an affair in his home with a household staff member (at least she is female...) but that he had fathered a son, now 14 years old, by this woman. And, this is the same politico who twice vetoed marriage equality in California, while lying to his wife and family. It is always insulting to be the wife of a man who cannot seem to keep his pants zipped, but it is the pinnacle of insulting to learn that he had sex with the mistress in the marital home. A couple of divorce attorneys in California will probably send their children to a ritzy college with their fees in this case.

So, what is going on here? Well, I did some reading on why men cheat and frankly, got a bit gaggy! There are all sorts of excuses--the one I like the best is that men in olden times believed they had to “spread their seed” to promulgate our planet. Seriously? It is not like our men have to pick up their clubs every morning and go out and hunt for our dinner, right?  Some people think that monogamy is not part of our species, and that we are in fact a polygamous species. Doesn’t millions of years of morals, changing cultures, education, or evolution count for anything? Sorry, but that is an excuse that is unacceptable. We are living in a now era. I want something, so I can have it - now. 

I would think that it has got to be difficult to really produce statistics on who does all this cheating, because if I fell in that category, I would just lie. But, it appears that men, and, yes, some women, are more susceptible to cheating when they make money and have power. Why? Because men who are powerful are narcissistic and believe that the world revolves around them and any bad conduct can be ignored and forgiven. The “I can get away with anything” syndrome--isn’t that true? They are self-confident, demanding, and if they see something they want--for example, a woman they can go after (in the case of Strauss-Kahn, forcefully and illegally, perhaps).

The urge to stray from spouses or partners is not insurmountable, guys. Just because you have a penis does not mean you get to use it every time you want to. There is such a thing as self-control. As a woman who has gone through a few men in my lifetime, I appreciate the urge to have sex. But, it would appear that women have more control--or maybe ethics--than men. Women really do believe that they are supposed to remain true to their spouses. It looks to me like men think they should keep their belts tightened and zippers zipped only when they want to, not when the urge is overwhelming. When is the need to have sex overwhelming to the point of ruining marriages and hurting other people? Is it only when you are powerful and in control of the lives of many people? Obviously, that is not always the case, but statistically, that appears to be the way it is with people in these situations.

Political men have an even tougher time. They get voted in to office by people who like them for one reason or another. This leads to narcissism to the nth degree. Look at John F. Kennedy. He was young and handsome, with a beautiful, educated, cultured wife. Was he less of a president because he cheated on Jackie? He actually cheated on her in the White House with the girlfriend of a mob boss from Florida. How much worse can it get? But he was not banned from society nor was he ousted from office. When he was assassinated, the world mourned his death. The media protected him during that era. Not so today. With the Internet, it is difficult to keep a secret. What I cannot figure out is why Schwarzenegger made public a secret that he had obviously successfully kept from the general public for many years. I am sure we will hear more soon.

There is an answer to why men cheat, but it is not one we like. The answer lies in our backgrounds, temperament, psychological makeup, education, finances, and whether he can place his family values over his need to be satisfied “now.” Stay tuned. I’m sure there’s more!

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Domestic Violence - Am I Crazy?

by Katherine Scardino

Domestic violence is not funny. It is not macho. Domestic violence against a partner can be so confusing and hurtful that you, on the receiving end, may think you are crazy. You may think you are at fault for the unexplained and abnormal actions of your spouse or partner. I am not saying it is always male against female, because it does run both ways. But in most cases, it is the male abuser against the female victim. Why does an individual who otherwise may be successful, seemingly normal to other people, and even loving at times, suddenly become physically or verbally abusive?

Abusive behavior is not normal. People who have violent outbursts, either physically or verbally, have underlying problems that cause the abuse. Most abusers have personality disorders, such as borderline personality disorder, narcissistic personality disorder, or sociopathy - technically called antisocial personality disorder. People who suffer from these disorders have extreme emotions which lead them to actions that can range from confusing and puzzling to brutal. Living with these people is painful, both emotionally and sometimes physically. Personality disorders are aptly named because the minds of people who suffer from these disorders work differently than those of healthy people.

Abusive partners have a difficult time living with the reality of their behavior. On some level, they may realize how hurtful they are, yet accepting this major flaw in themselves is just too painful for them. These people tend to make the object of their abuse believe they are the crazy one in order to make their own reality less painful. One common defense mechanism used by an abuser is projection, where their disorders are perceived in their partner. They believe they do not have a personality disorder - “you are the crazy one!” Another defense mechanism used by the abuser is blame shifting - “I am not at fault. It’s all your fault.”

Abuse is a behavior, not a disease. It is caused by an underlying disease. Abusive partners constantly work to distort their partner's perception of what is happening and what is right and wrong, until the receiving end of the abnormal relationship doubts his or her own judgment. This warped sense of what is normal and what is not is a direct result of the abuse.

There are many instances where a spouse or partner feels trapped in this abnormal relationship. That may be caused by loss of self-confidence as a result of the constant verbal or physical violence, or it could be a financial trap. For example, in many domestic violence cases where the partner finally calls for help, we learn that they married a wealthy individual who used financial security to maintain the relationship. It is amazing to healthy people to think of remaining in such a relationship for money, but for those who have suffered the feeling of helplessness due to being poor, it can be understandable. The abused spouse or partner may believe that he or she is not capable of making enough money to even support themselves, or cannot conceive of a situation where they could be on their own. 

Sometimes the abused partner feels so trapped that they remain in the relationship, and just take the abuse, saying it is not that bad. Or even more unrealistic - "I can make him change.” The recipient of the abuse will never be able to change the personality disorder of their partner. It cannot happen. The personality disorder is a disease over which they have absolutely no control, other than allowing the abusive spouse or partner to use them as the object of their unhealthy behavior.

The worst case scenario of this type of relationship is physical violence. Generally, it is the man who is violent with his wife or partner. The abused partner may be forced to discuss the abnormal relationship only after a visit to the Emergency Room and the resultant conversation with a police officer. For most of us, it is unbelievable to think about ever remaining in a situation where a partner hit us - even once.

But, we are not all that strong. In those situations, which are many, the abused individual becomes unhealthy in a different sense. They allow the abuser to convince them that they are crazy or at fault in some other manner. After all, other people, friends, co-workers, think they are lucky to have such a good partner. The abuser hides their problems well. They make serious efforts to convince other people that they are normal. So, the abused starts to think it’s their fault or that they can change the one they love, or that the situation itself will change on its own. It will not.

There have been many criminal cases involving the death of the abused partner. People actually do sometimes kill the object of their abnormal, violent behavior, either intentionally or accidentally in a rage. And, victims actually do sometimes kill their abusers when they finally get to the point of no return. The end result can be a funeral and a lifetime of issues about guilt.

Women have been in my office describing these relationships and making an effort to justify both parties abnormal behavior. I have always suggested counseling and leave the home - coupled with usually a divorce petition and a protective order. In some cases, the abused party will call my office and tell me that she is going to give the relationship one more try. Every case is different, of course, but it is my belief that this is a mistake. I hope that you, Ms. Reader, will take the steps to protect yourself - and now, not later.

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Daycare Terror

by Katherine Scardino

Last month, a tragic event occurred in my hometown of Houston, Texas. On February 25, 2011, four children were killed, and three children were injured, in a daycare fire.  The fire erupted at a residence that also served as a child-care facility called Jackie’s Child Care.

The owner of the home, Jessica Tata, lived in the home and also owned and operated the daycare center. The fire broke out at about 1:30 on a Thursday afternoon. When firefighters arrived, they found two injured children outside the home and learned there were five more children trapped inside the burning house. Firefighters were able to rescue the children who were trapped inside and took all seven to the hospital. Three of the children died the following day in the hospital, and a fourth child died in the hospital a day later. The victims of this horrific accident ranged in age from 18 months to three years old.

So, what happened? Where was owner and supposed responsible adult Jessica Rene Tata when the fire broke out? JTata, age 22, was seen on local television walking around the scene during the rescue of the children. A neighbor reported that Tata was not at home when the fire broke out, and several neighbors reported seeing Jessica arriving home with bags of groceries  after the fire started. Neighbors' accounts, later corroborated with in-store video footage, proves that Tata had left the children alone during nap time to go grocery shopping at Target.

Alone? What was she smoking? Who in their right mind would leave a house full of young, sleeping children alone to go shopping? No one seems to know exactly how long she was gone, but store security cameras show she was inside Target for at least 13 minutes.  Apparently, it was long enough for a pan of oil left on a hot burner on the stove to catch fire.  By the time Tata returned home, smoke had engulfed her home and was billowing out of the windows.

After the fire was extinguished, Tata refused to talk to the police, referring them to her attorney. Shortly after, Tata fled Houston. She got on an airplane for Nigeria before the district attorney’s office could file charges against her. Some were very upset that the district attorney's office was slow in getting her charged, arrested and into police custody. 

Jessica Tata remained in Nigeria until yesterday, March 22. Apparently, some family members who live there and other people in Houston helped the U.S. Marshals Service, Interpol, and Nigerian officials track her down and bring her back to Texas to face the 14n state criminal charges that have been filed against her. The charges include manslaughter, six charges of reckless injury to a child, three charges of abandoning a child under age 15, and a federal charge of unlawful flight to avoid prosecution. She has a lot of defending to do, that’s for sure.

Jackie's Child Care Center was a registered daycare home with the Texas Department of Family Protective Services. A registered daycare is the least regulated type of facility. Generally, home daycare facilities are less expensive than larger, more popular facilities, and, therefore, cater more toward families who cannot afford $900-plus per month in child-care costs. But you would think parents would at least look at the home daycare facility, ask questions about training, listen to the classroom for interaction, count the number of children versus caregivers, and be informed by checking licensing information. This is just basic stuff. 

Jackie’s Child Care was been inspected twice over the past three years by the Texas Department of Family Protective Services. Two violations were found last year: The facility was missing required carbon monoxide detectors and fire extinguishers. Reports show that these issues were fixed immediately after being reported. However, faulty equipment was not to blame in this tragedy. Had a responsible adult been present at the home when the fire started, it is more likely than not that all of the children could have been saved before the fire got out of control.

Unfortunately, Texas laws do not help the parents very much. For instance, to run a  registered child care center, you must have a GED or a high school education, be CPR certified, pass a background check, and attend 20 hours of training to be in charge of a classroom of children. To have someone paint my fingernails, they have to have 600 hours of training. For someone to cut my hair, they must have 1,200 hours of training. Yet, to take care of our precious children requires only 20 hours. 

Minimum standards set forth by the Texas Department of Family Protective Services say that Jackie's Child Care was authorized to have up to six children in her facility full time, with the allowance of six additional children for after-school care only. These same regulation standards maintain that registered child-care facilities are only inspected once every two years, unless reports of neglect or abuse are made. Who would leave their babies with a 22-year-old woman who could legally watch up to 12 children at one time? Not to mention that this fire started during school hours, meaning that Tata should have had  only six children in her care to be in compliance with state regulations.

As a result of this disaster and tragedy, the Houston City Council is working to pass a new city ordinance requiring all home-based daycare operators to register with the city and submit to a safety inspection every year. If this ordinance is passed, home-based daycare operators would be required to pay $100 plus a $25 administration fee for the annual inspection which would be performed by the Houston Fire Marshals office. The state license held by Jessica Tata cost $37.

Although this change is small, at least it’s a start. Despite the obvious need for better regulation of home child care facilities, I know that most of these facilities take very good care  of their children, and that events like this are rare. The best way to prevent a tragedy like this is to be completely informed about the people to whom we entrust our children, and that is ultimately the job of parents. No amount of state regulation will do more than parents being actively involved in their children's daycare by visiting often, popping in unannounced, and maintaining constant communication with daycare providers. Pay attention. Ask questions. Ignorance is not bliss when your child's health, safety, and well-being are concerned.

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Sexting: How Did We Get Here?

by Katherine Scardino

Wikipedia defines sexting as the act of sending sexually explicit messages or photographs, primarily between mobile phones-- a combination of the words “sex” and “texting.” The term sexting was first published in Sunday Telegraph Magazine, a British broadcast newspaper, back in 2005. Most, if not all, states have laws against child pornography, so how can we allow sexually explicit photographs of our children to be sent across the Internet? And, more importantly, how and why is this happening?

Many states find themselves in a quandary about how to handle this issue. Teens sending nude pictures of themselves to each other is basically child pornography. If someone under the age of 18 takes a pornographic photo of themselves and then sends that photo to someone else, they are distributing child pornography. And, of course, the person who receives the photo is in possession of child pornography. These charges can potentially carry stiff criminal penalties. In some instances, the district attorney may determine that the acts involved in sexting constitute distribution or possession of child pornography and decide to prosecute. Others times they do not. Some states are interpreting the problem differently and coming up with various ways to deal with the problem, but it will most likely take a number of years for the laws to formulate and become even remotely consistent. 

In Texas, our state Attorney General has opined that adults with nude or semi-nude photographs on their mobile devices can be investigated and tried on felony child pornography charges. Teenagers with photographs of other teens aged 18 and under can be prosecuted, and face up to 10 years in prison. The recently proposed Texas Senate Bill 407 gives prosecutors an additional tool to use when prosecuting teens who engage in sexting by providing a more appropriate offense. 

Under Bill 407, charges for sexting for first-time offenders who are younger than 18 are considered a Class C misdemeanor instead of a felony child pornography charge. Those teen offenders, as well as their parents, may also have to participate in an education program. The proposed new law would also give teens the chance to apply to have the sexting charge expunged from their records. One of the good points of this proposed law is education. It requires school districts to provide information to students and parents including the legal and emotional impacts of sexting. If approved, this Texas statute would become effective in September 2011.

But, do you really think making parents go to some class to hear about their teenagers new “fun thing to do” and the evils of taking naughty pictures will make any impression on these kids? Is sexting going to be blamed on the parents? Surely there is something deeper going on here. Yes, parents need to watch over their children. Yes, parents need to teach their children to be responsible, law-abiding citizens. Do you think we just have kids who make dumb mistakes, or is this new craze reflective of the times? 

Sexting is simply a result of advances in technology enabling new forms of social interaction. Messages with sexual content have been exchanged over all forms of historical media. Newer technology allows for the recording and exchange of photographs and videos, which are intrinsically more explicit and have greater impact. But, one important risk to remember is that material can be very easily and widely propagated, over which the originator has absolutely no control. Once it is on the Internet, it is gone forever.

Sexting is popular with teenagers. It is a new thing to do. But it must be controlled. Whose job is it to intervene and make some changes? Is it the parents', schools' or law enforcement's job? Or a combination of all three? Obviously, in my opinion, all three must bear some responsibility. But, what bothers me is that parents get first shot at teaching their children morals, citizenship and respect. I cannot help but cringe at the thought of a young girl feeling so emotionally numb to believe that it is cute or cool to send a nude photograph over the Internet to a boyfriend, or just a friend, which is even worse.

We really should do something about this.

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'A Change Is Gonna Come'

by Katherine Scardino

My client, Anthony Graves, walked out of the Burleson County Jail on October 27,  2010, after having been incarcerated in jail and prison for a whopping total of 18 years.  Out of those 18 years, Anthony was on death row for 14.  Can you close your eyes and imagine how long 14 years is?  And, being locked in a box for that long for a crime that you know in your heart you did not commit.  I cannot imagine the confusion and terror that must build inside after only a very short period of time, not to mention 18 years.

Anthony Graves is free. But what now? Although no amount of money can replace nearly two decades of an innocent man's life, it seems obvious that the state of Texas should take some responsibility for this egregious wrongful conviction and imprisonment. In 2001, Texas passed a law that provided exonerated people monetary compensation for every year they were wrongfully imprisoned. This law awarded exonerated prisoners $25,000 for every year of wrongful incarceration, with a maximum allowance of $500,000 per person. Of course, this was only for wrongful incarceration claims that were approved through the state comptroller's office. From 2001 to 2006, only about half of the claims submitted were approved.

In May 2009, Texas passed the Tim Cole Compensation Act.  This legislation was named after and inspired by Timothy Cole, an inmate who was wrongfully convicted for rape and who received a 25-year sentence.  Mr. Cole died in prison in 1999, at age 39, from a heart attack, after spending 13 years locked up.  Naming a piece of Texas legislation after this man hardly seems like enough to do much for his family’s feelings.  But, this act did, in fact, increase the annual amount a wrongfully convicted man receives for each year, spent behind bars for doing nothing, from $50,000 to $80,000. In addition, the act also provides health insurance and college tuition. However, if someone accepts the state compensation, they lose their right to file a civil lawsuit against the State of Texas. Also, any wrongly incarcerated person who went on to commit other crimes would not be eligible for the compensation.

Currently, Anthony Graves should receive $80,000 for each year he was incarcerated.  That adds up to right under $1.5 million dollars.  I suppose we could discuss how much is really enough, but that may be for another day.  Unfortunately, there is a snafu with Anthony's claim to the state for compensation.

Last October, the district attorney and his special prosecutor held a press conference and stated that after a thorough investigation of the case, they were dismissing the indictment of capital murder against Anthony.  They both said that Anthony Graves was actually innocent of the charge of capital murder.  An Order of Dismissal was prepared by the district attorney and presented to the judge for her signature.  The order stated the following: “We have found no credible evidence which inculpates this defendant.” It was signed by both the district attorney and the judge.  Anthony Graves was released from the county jail that day, and we picked him up and took him home.

Now, several months later and after applying to the proper authorities for the funds under the Tim Cole Compensation Act, we have learned that there may be a problem.  The state has not yet officially responded to our application for funds, but the defense attorneys are anticipating a serious roadblock. We have been told that the words "actual innocence "must be included on the order of dismissal.

To try and straighten out this technical difficulty, we timely prepared and submitted to the district attorney of Burleson County an amended order of dismissal that included those two magic words--words that he had used in front of cameras last October.  Bill Parham, the DA, refused to sign the amended order, which would have assured that Anthony would be eligible for these funds. This is despite the fact that he had no problem discussing Anthony's innocence with the media on the day of the news conference. 

So, here we are, waiting and hoping for a miracle.  Anthony Graves has been learning a lot about life since October.  He has a new computer, a cell phone, a flat-screen television, and most recently, a used car to call his own, and even a job.  Most of those items were gifts to him from his lawyers, family and friends.  It is hard to walk out of jail or prison after 18 years and be expected to simply get a job.  He did not even know how to send an e-mail, God forbid.

But, he will overcome these hardships. Anthony Graves always has met, pondered and mastered the greatest adversities imaginable.  There are some good things that are happening to him, also.  He has spoken at several functions around Texas about his life experiences to try and convince young people to be careful about who they run with and what they put in their bodies.  He wants to do what he can to change lives.  And, he can.  

CBS’ 48 Hours is doing a special program on Anthony's conviction and release.  They have interviewed many people having to do with his case--even the DA who caused the entire fiasco.  Anthony told the reporter that when he was on death row, he entertained himself by singing, and eventually she convinced him to sing the song for her. I spoke with her yesterday and she described for me the scene when Anthony began singing for her and seemingly forgot the cameras were on.  He closed his eyes, and as tears fell down both cheeks, he sang  from his soul A Change is Gonna Come.   She started crying; I started crying.  There but for the Grace of God go I--or you.  

There been times that I thought I couldn't last for long
But now I think I'm able to carry on
It's been a long, a long time coming
But I know a change gonna come, oh yes it will 
- Sam Cooke

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Sisters Released For A Kidney

by Katherine Scardino

The story of 35-year-old Gladys Scott and her 38-year-old sister Jamie Scott has been all over the national news this week. The Governor of Mississippi had decided to release the Scott sisters from state prison after they'd each served 16 years of a life sentence for aggravated robbery of $11.

First of all, the amount of the robbery is immaterial to me. I think most people would agree that sticking a gun in the face of a citizen and demanding all his money warrants a serious sentence, assuming that the state has proven their guilt beyond a reasonable doubt. (Remember, I am still a defense lawyer.)

Back in 1993, Gladys and Jamie were involved in an aggravated robbery of two citizens of Mississippi. The use of a weapon in a robbery means that the range of punishment can be increased. We know that the victims of this robbery must have been scared for their life, so they gave the robbers all they had--$11 in cash. A life sentence may be a bit much. I have represented people who stole a lot more than that and did not receive life sentences. But, their actual sentence is not the issue of my troubles with this matter.

What troubles me is that Governor Haley Barbour released the women so the state of Mississippi could avoid having to pay the medical bills for Jamie Scott’s kidney transplant. Jamie has been ill for a while and apparently needs a new kidney, which I presume is a very expensive medical procedure. So, Gov. Barbour agreed to the release only if Gladys would agree to give her ill sister one of her own kidneys. As a result of the release, the state of does not have any medical expenses.

Sixteen years ago, a judge or jury in that state felt that this crime warranted life sentences for both Gladys and Jamie. The NAACP and many other people have petitioned, complained, and written about the unfairness and obvious racism involved in these sentences for many years, but to no avail. The NAACP claimed that these women were symbols of the heavy-handed sentences given to African Americans, and the influential civil rights group engaged in a long-standing campaign to secure their release. Nothing happened as a result of their efforts to get them released.

Before Jamie became ill, no one could give a rat’s you-know-what about her or Gladys and the length of their sentences for an $11 return on an aggravated robbery. But with the prospect of huge medical expenses looming in the future of the state’s coffers, all of a sudden this governor becomes magnanimous in his decision to release the women.

This case supports my belief that many ridiculous rules and laws can be undermined and terminated if they cost too much. Take capital murder, for example. It is unbelievably expensive to finance a death capital murder trial in any jurisdiction, whether it be a large county or a small county. As a result of the cost, some, if not most, small counties elect not to prosecute for a death sentence to avoid the millions of dollars it could cost the taxpayers.

So, here in Mississippi, the bastion of equality and fairness, this governor has elected not to pay for Gladys Scott’s medical expenses incurred while spending years in a state prison. Maybe that is a good financial decision for Mississippi, and it is obviously a good decision in all respects for the two sisters, since they are now free. But the crux of my issue here is that they have gained their freedom not because it is the right thing to do, not because justice and fairness require it. No, Gladys Scott and Jamie Scott are now walking among the free people in the state of Mississippi for one reason only: money. It is always about money, and do not ever forget it.

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Revisiting the First Amendment

by Katherine Scardino

A few weeks ago, one of our very fine contributors, Stacy Dittrich, wrote a blog for Women in Crime Ink about the scumbag (her word, but joined by me!), Phillip Greaves, who wrote the how-to book on being a good pedophile. It is hard to believe that one of our human race could and would write a book about doing harm to our children. I cannot even imagine a more low-class, vile subject for a book available to the world via the Internet and Amazon.com.

However, this vile subject is one that we have to talk about because it reaches far beyond Greaves and the subject of how to be a pedophile. In 1775 and 1776, our forefathers crafted a very powerful document, known as the Constitution of the United States of America, which is the supreme law of the land that we live by today. The First Amendment to the Constitution deals with freedom of speech, and you must note that it is the First Amendment. I believe it could have been decided by these fervent and patriotic men that freedom of speech was the most important right that they wanted their descendants to honor. Why? It is possibly due to the fact that the first Americans fled England because they were not allowed to express their desires or opinions about their personal or political lives. They did not want their new world to evolve into the same type of environment that they had just escaped.

So, today, we are in a quandary. There is a man from Colorado named Philip Greaves, and if you looked up the word pedophile in Merriam-Webster’s dictionary, you would probably see this idiot’s photograph. I hate to even write his name in this article, because I would not want to add to his obvious need for publicity. But he wrote a book detailing how to conduct yourself as a pedophile. Truly disgusting!

There are people, as Ms. Dittrich stated, who are “defending this type of behavior, all for the sake of the good old United States Constitution.” I am a person who is defending everyone’s right to freedom of speech, as long as that free speech does not break any existing laws on obscenity and pornography. Yes, I will defend the right of every U.S. citizen to be free to speak their minds on any subject they wish, as long as it is legal. I know of no one who would welcome a world where we, as citizens, could be criticized, or worse, thrown in jail for speaking one’s mind.

Remember back in the early '70s during the Vietnam debacle when 19-year-old college student Paul Cohen was convicted of disturbing the peace when, inside a Los Angeles courthouse, he wore a T-shirt saying “F*** the Draft.” The U.S. Supreme Court overturned his conviction, and opined that it was not illegal for him to wear that T-shirt since it was his constitutional right to speak his views.

Now, I will openly admit that announcing one’s opinion on a current event via a T-shirt is very different from Greaves’ how-to book. I heard legal affairs writer Jeffrey Toobin state his opinion on CNN last Sunday evening on AC360. Mr. Toobin said he believed it was not against the law for this scumbag to write a book on this subject since it depicted no photographs, only words. Herein lies the issue. What exactly is pornography? U.S. Supreme Court justices have struggled to establish an appropriate balance between the protection of free speech and the laws that are enacted to curtail the spread of pornography.

In the 1982 case of New York v. Ferber, which was also cited by Ms. Dittrich in her article, the Supreme Court upheld the constitutionality of a state statute that prohibited anyone from knowingly producing, promoting, directing, exhibiting, or selling any material showing a sexual performance by a child under the age of 16. It defined sexual performance as any performance that included “actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.” This means that, like obscenity, child pornography enjoys no First Amendment protection and the government can restrict its availability to everyone. In the case of electronic or computer transmission, it is a federal offense to knowingly receive child pornography.

So, what is obscene material? In 1973, the Supreme Court decided in the case of Miller v. California that obscene materials are defined as those that the average person, applying contemporary community standards, find, taken as a whole, appeal to the prurient interest; that depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable state law; and that, taken as a whole, lack serious literary, artistic, political or scientific value. The Miller decision provided states greater freedom in prosecuting alleged purveyors of obscene material because, for the first time since prior cases, a majority of the court agreed on a definition of obscenity.

The community standards portion of the decision is of particular relevance with the rise of the Internet, as materials believed by some to be explicit can be accessed from anywhere in the nation, including places where there is a greater concern about obscenity than is found in other areas of the nation. Perhaps the community where this man initially wrote this book (Colorado) is more lenient than the community where he mailed a copy to the FBI agent (Florida) and where he is currently in jail unable to make his $15,000 bond.

I have to ask, however, is it illegal to write a book describing how to be a good prostitute? Prostitution is illegal, just like child pornography and child sexual abuse. Why is it okay for genitalia to be exposed in photographs found in Hustler or Playboy magazines? Just because the subject matter is not one which some of us, although obviously not all of us, find appropriate does not mean it is illegal. The people who enjoy reading and viewing this material have the right to do so. We have the right not to read or view the material or to contribute any money to the sales of these publications.

So, the issue for the legal pundits and authorities will boil down to whether the words written by this imbecile from Colorado constitutes child pornography and is obscene material. I will not read this book, so I cannot state a firm opinion one way or the other. However, I do believe that it is important material for a solid discussion of our First Amendment to the good old United States Constitution, and I always welcome that.

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