Expert Witnesses in the Trooper Higbee Trial

I have a particular interest in the rhetoric expert witnesses employ in the witness box, especially scientific experts. On Thursday and Friday, Trooper Robert Higbee’s defense presented two expert witnesses, both of whom I feel are models of effective jury presentations. Both presented extensive credentials in what might be called “a dramatic” manner (as opposed to a dry C.V.). Both chose vivid and relevant examples to illustrate their key points. Both spoke directly to the jury, without appearing to “dumb things down.”

On Thursday, Dr. Geoffrey Loftus of the University of Washington explained human cognitive processes and perception. Overlooking a gratuitous swipe at bloggers versus journalists, I admired everything about his testimony.

  • Sidebar: In defense of bloggers, and in contrast to journalists, on Friday the only apparent journalistic coverage of the Higbee trial was CNN/TruTV’s Jean Casarez, who had about two minutes of air time. TruTV switched from coverage of the Higbee trial to the more sensational “Fake Rockefeller” trial. IMHO, this is a sad aspect of news coverage these days: the Higbee defense is thus deprived of its day in the spotlight. Many in the public may be left with the prosecution’s view of the evidence, as a result.

Then on Friday, Retired State Police Lt. Col Frank Rodgers testified about NJ State Trooper training, policies, procedures, and traffic laws. For more, see www.pressofatlanticcity.com.

Dr. Loftus made clear the complexities of the way the human mind processes the sorts of information with which a night-time driver, such as Trooper Higbee, is confronted. He also explained convincingly how it is possible that Trooper Higbee misremembered the events of the night.

Mr. Rodgers proved—at least to my satisfaction—that Trooper Higbee was one of the best-trained and best-qualified troopers on the road at the time of the accident, with no motivation to have become reckless at the moment. He also convinced me that all the evidence (except possibly the faulty memories of eye-witnesses) shows that Trooper Higbee was following Standard Operating Procedure in all respects, including his “observation” of a “stop-ahead” warning sign and his elevated speed, which Rodgers labeled “five miles above the speed” at which Higbee had clocked the speeder.

Defense Take-aways

Loftus:

Trooper Higbee likely did not lie intentionally when he stated in a sworn deposition that to the best of his recollection he stopped at the stop sign.

When cross-examined about this, Loftus noted that Higbee had no motivation to lie. To me, this is key: a state trooper would know that the investigation would turn up contrary evidence if he lied; hence, a state trooper is the least likely person to compound his legal problems by perjuring himself.

Trooper Higbee likely did not remember much about the accident accurately. Like any human being under those circumstances, he may have had a brief episode of amnesia and then incorrectly reconstructed the accident through inferences about himself as a safe driver.

In the dark of night, because a distant stop sign happened to be a larger size than the relevant stop sign at the intersection, and because the distant stop sign was in Higbee’s central field of vision while the closer stop sign was first obscured from his line of sight and then popped into his peripheral vision too late for the speed he was traveling, Trooper Higbee reflexively mistook the distant stop sign for the stop to which the “stop-ahead” warning sign referred. This is the most likely reason that a sane, trained state trooper would not slow down in order to stop at an intersection: he thought the intersection was further ahead than it actually was.

Higbee was likely distracted from seeing the stop sign at the last minute by the sudden appearance of headlights to his right.

Rodgers:

Trooper Higbee was acting responsibly throughout the incident: he properly clocked the speeder, he properly sped up to slightly faster than the clocked speed and maintained that speed while attempting to close the gap, he observed the warning sign and began to tap the brake, he identified the stop sign he thought to be controlled by the warning sign, he kept his focus on the speeder ahead—and relied on his peripheral vision to observe traffic signs to his right.

Rodgers also pointed out the skew the prosecutor put on Higbee’s sworn statement. For example, he noted that the prosecutor read only a portion of Higbee’s assertion that he stopped at the sign. In context, it is clear that Higbee was uncertain but was convinced he would have stopped at any such sign. Rodgers also pointed out the number of times Higbee told first responders and other officials that “I don’t know what happened.”

Rodgers reiterated Loftus’s reasoning that Higbee would have had no motive to lie, because all troopers know how accident reconstructions work.

Rodgers repeatedly pointed out that state troopers are trained to protect themselves, as well as the public. If Higbee had perceived an intersection ahead at which cross-traffic had the right of way (even potentially through a yield sign) then he would certainly have wanted to slow at least to a slow, rolling stop in order to protect himself.

The Thin Blue Line

Throughout the trial there’s been an undercurrent of “the thin blue line” protecting its own—at least in the prosecution case. The prosecution’s first witness was the grandfather of the two girls who died. He seemed to imply that troopers on the scene that night lied to him. The defense objected that the testimony was prejudicial, and the judge overruled the objection.

Troopers who were required to testify for the prosecution made it clear through facial expressions, tone of voice, and body language that they were very unhappy. At every opportunity, their choice of words indicated their support for Trooper Higbee.

The defense side of the gallery is packed daily with law enforcement.

Mr. Rodgers provided an interesting counterbalance to the public perception that cops will lie for each other. His credentials included substantial experience in investigation of police corruption.

The Judge’s Kibosh

Unfortunately, once again the judge in the trial tried to soften both experts’ blows against the prosecution case.

Dr. Loftus prepared a PowerPoint presentation and a graph to illustrate his conclusions. The judge ultimately ruled that neither would be made available to the jury in the deliberation room.

Even as I write this, I can literally feel my blood-pressure skyrocket. The jury both needs and deserves these exhibits. Why?

1) Dr. Loftus presented extremely sophisticated scientific information, which no one in the courtroom could possibly have absorbed.

2) Dr. Loftus’s diagrams incorporated information that the prosecution had already presented, but with the addition of the defense perspective—and he was a defense witness, not a prosecution witness; by forcing the jury to rely on prosecution diagrams, the judge in effect suppressed Dr. Loftus’s interpretation of the facts.

3) The judge suppressed one graph on the grounds
that it was “cumulative” rather than “probative” because it simply repeated the prosecution’s data. In fact, I heard Dr. Loftus say he had personally developed the graph from the same data that the prosecution’s expert developed his graph. That is entirely different.

4) The prosecution’s graph had misleading and inaccurate labels on it, which the judge allowed but told the jury to disregard. On the other uneven hand, the judge asked the defense to redact many of the labels in Dr. Loftus’s PowerPoint presentation.

As for Mr. Rodgers’ testimony, during the prosecution’s cross-examination the judge repeatedly forced him to respond “yes” or “no” to questions for which he did not wish to give a definitive answer. The judge at other times told other witnesses, especially prosecution witnesses, that they should respond with one-word answers but that they would be given an opportunity to respond more fully afterwards. Mr. Rodgers did not have such opportunities.

Memory is a Construct

Dr. Loftus’s critique of the accuracy of bloggers is well-taken by this blogger. I’m not a reporter. I don’t sit glued to the screen while the trial is on. I don’t see all the testimony or everything that goes on in the courtroom. I could be in error about everything I’ve said here.

Dr. Loftus made it very clear that memory is entirely subjective.

But I think the judge in this trial should heed that warning, too. He seems to be taking copious notes throughout the testimony: my own experience trying to take notes in the jury box taught me that note-taking is often counterproductive and causes one to miss some of the testimony. In addition, he relies on his memory and his notes to make rulings without reference to the court-reporter’s transcript.

So, while I might not be accurate in my recall of the testimony, and I know I’ve made errors in earlier posts, I’m not so sure my memories are worse than the judge’s, because at least I’m not looking at this trial through eyes of the prosecutor. I’m trying to look at it through the eyes of a juror.

TruTV Trials: Public as well as “in public”

Ronald L. Goldfarb’s TV or Not TV (1998) is an interesting and fairly persuasive argument for video cameras in the courtroom. He makes an important distinction between pre-trial or extra-courtroom publicity and the gavel-to-gavel videotaping of trials. Recently, broadcast and Internet-streamed trials (such as the trial of NJ State Trooper Robert Higbee) have convinced me of the wisdom of his conclusions.

But I’d like to know how our courts can possibly protect the privacy rights of non-public figures involved in videotaped trials. The judges and attorneys all seem to fall under the heading of public figures, especially since they make their livings in the public eye in courtrooms. I have no concerns about them. In fact, it is their public role that makes them fair game, as far as I’m concerned.

Witnesses are different. Most witnesses appear under subpoena and are what you might call “innocent bystanders.” Sometimes, witnesses are victims. Most witnesses are not public figures. (I’m not sure how to classify professional expert witnesses.)

Even the defendant is not a public figure by choice, in most cases.

Right to a Public Trial

The Sixth Amendment to the Constitution (The Bill of Rights) gives us all “the right to a speedy and public trial, by an impartial jury . . . .” But “public” is an adjective with many subtle meanings and connotations.

Does the Constitution give a defendant the right to be tried “in public”? If so, of what does this publicity consist?

Does the Constitution “give the public the right to observe every trial”? If so, how is the justice system supposed to make this happen? Is the government supposed to provide “unlimited access to courtrooms at public expense”?

Or, does the Constitution give a defendant the right to a trial “at the public expense,” as opposed to his own expense?

Or, does the Constitution give a defendant the right to a “trial by the public,” as opposed to a trial by a government official, such as a monarch, or as opposed to a private individual or entity such as a bank?

What Does “Public Trial” Mean?

If I were stranded on a desert island and could have only one book, it would be my Compact Oxford English Dictionary of the English Language. With the OED I’d have access to many of the most profound sentences ever written in English, as well as the etymology and complete history of most Modern English words, including the fascinating word, “public.”

In order to try to understand what the Founding Fathers could have meant by the phrase “public trial,” it is necessary to research both words to discover when they were first documented as appearing in the English language and what their various meanings were prior to 1787, when the Constitution was ratified, and 1791, when the first ten amendments were ratified.

“Trial”

The first written use of the word “trial” listed in my OED appears in Sir T. Smith’s Commonwealth of England and the governance thereof: “his triall after indictment” (1577 and 1585). Then, in 1651 Thomas Hobbes wrote, “In the ordinary trialls of Right, Twelve men of the Common People, are the Judges.” (Interestingly, Hobbes was a staunch monarchist, but even he claimed that certain “ordinary” trials are by right before a jury of commoners and that the jury is the judge.)

“Public”

My OED notes that the word “public” is generally used in opposition to “private.”

The first definition the OED lists relates to “public” as meaning the “commonweal.”

In 1671 poet John Milton wrote, “To the public good, private respects must yield” (Samson Agonistes, 1671).

According to the OED, “public” can also be an adjective referring to a type of place or office. In 1792, for example, Act 32 of the reign of George III, referred to “The Public Office in Bow Street.” The reason I cite this particular example is that Bow Street was the legal seat of England’s first police force.

Another definition of “public” (though less common) is as an adjective describing something that represents the community. In 1560 Daus wrote, “He should be constrained to stand to the public judgements . . . .”

A fourth meaning of “public” first appeared in the language shortly after the turn of the 18th century, about 80 years before the Bill of Rights referred to a “public trial.” That meaning is “at the public expense.” In 1707 Chamberlayne wrote about a “Publick Library free for all . . . .”

Does the Constitution give a defendant the right to be tried “in public”? If so, of what does this publicity consist?

I can’t imagine any linguist or philologist claiming otherwise. Given the horrors of the Star Chamber in the minds of British subjects in 1787, the idea of a secret proceedings would have been anathema. 

Does the Constitution “give the public the right to observe every trial”? If so, how is the justice system supposed to make this happen? Is the government supposed provide “unlimited access to courtrooms at public expense”?

In my opinion, there’s no context within the Bill of Rights for making a claim that the public’s “right to know” extends the public the right to observe a trial. The “right to know” itself isn’t stated in the Constitution. It seems to have been inferred from the First Amendment “freedom of the press.” However, if the phrase “public trial” implies a trial that is not secret, then it’s obvious the Bill of Rights intends that some measure of publicity is necessary for every trial, but the right is the right of the defendant, not the right of the public.

If that is so, then the question of “public expense” comes into play.

Does the Constitution give a defendant the right to a trial “at the public expense,” as opposed to his own expense?

If you look at the context of the Sixth Amendment’s reference to the right to a public trial, you notice that the immediately preceding clause reads:

  • “. . . nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (end of Fifth Amendment)
  • (Beginning of the Sixth Amendment) “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .”

The highlighted phrase is what is commonly called “the takings clause” and has recently been taken to mean that the right of public domain does not absolve the government from paying for the property it takes. However, in its context, it clearly means the government cannot seize a defendant’s property either to use in evidence against him or as a punishment for a crime without compensating him for it.

My point is that the word “pu
blic” is used in a context of contrast with private, as in “private property
.”

Also, keep in mind that the Founding Fathers were in the process of breaking away from certain practices in England, which they abhorred. One of these was the monarch’s confiscation of private property in many and varied forms: heavy taxes, port fees, arbitrary confiscations of desirable land, housing of soldiers in private homes rather than at public expense, and more. Another of these abhorrent practices was “debtors prisons.” A debtors prison was a prison for people who allegedly owed someone else (not only the government but also private individuals, such as creditors). An alleged debtor was thrown into indefinite confinement without a trial.

I believe that one meaning of the Sixth Amendment’s “public trial” was “at the public expense;” that no one should be required to pay for his own trial or to compensate the public for a trial with an exorbitant fine or that any private party should have the right to punish a fellow citizen for alleged grievances by, for example, having him thrown into debtors prison.

Does the Constitution give a defendant the right to a “trial by the public,” as opposed to a trial by a government official, such as a monarch, or as opposed to a private individual or entity such as a bank?

Clearly, the Constitution intends that a defendant should have the right to a trial by the public at large, by his fellow citizens, not by a trial of a single government body or government employee. That’s why judges are said to be “judges of the law” and juries are “judges of the fact.”

Do Witnesses Have a Right to Privacy?

I would hope they do. But since the murder trial of O. J. Simpson, many private individuals have become public figures. Think Kato Kaelin. Think Amber Frey. But witnesses are usually identified in televised trials.

Even the defendant in a publicly televised trial becomes a public figure, and generally as a strategy of the defense attorneys in an effort to garner positive public opinion or to exploit the defendant’s notoriety for monetary purposes.

Cameras in the Court

In the Colonial Period, trials were not transcribed or recorded very often. The Boston Massacre Trial is a rare example of a partial transcription. It was made by a scribe with a quill pen scratching out what he heard on paper.

According to the http://www.jud.ct.gov/lawlib/History/kirby.htm, the first court reporter was named Ephraim Kirby and first published trial transcriptions in 1789.

The Pitman System of Shorthand wasn’t invented until 1837.

According to Court Reporters Court Reporting Nationwide, modern transcription machines were first used in the 1950s.

Technology has now produced video cameras that could be employed to record court proceedings very inexpensively. A literal transcription may be necessary for legal purposes, but it is always going to be incomplete and needs supplementing with a camera.

Whether such video recordings should be broadcast by commercial cable channels and be interspersed with commercial breaks is another question altogether. It isn’t even clear to me given privacy rights of innocent private parties to a trial that live Internet video streaming should be permitted.

However, if the alternative is to prohibit the general public from attending trials in person, but only permit a handful of “legitimate” journalists (as opposed to the merely curious public), then I’d have to say all trial video recordings should be available to the general public.

“Public” Trial of NJ State Trooper Higbee

In the 18th century, the Founding Fathers guaranteed American citizens the right of self-determination through the Bill of Rights. I use the phrase “the right of self-determination” to emphasize the fundamental difference between the British form of government at the time and the form of government the Founding Fathers sought to establish in this country: that fundamental difference is the source of all power in Britain was the government, but the source of all power here was and still is “we, the people.” (I emphasize this in yellow, because yellow is more visible than red—especially against a black background.)

A public trial by a jury of peers is a trial by individual citizen-jurors of a fellow citizen. It is not a trial “in public” by a government body of any sort. That includes the office of the prosecutor and the judiciary, even when they are elected by the people. (In another article I plan to write further about the meaning of a “public trial.”)

The Bill of Rights also gives me, an individual citizen, the right to freedom of expression. Expression comes in many forms, and in this instance it is in the form of a blog article. Expression does not come burdened with the necessity for me to speak the truth, the whole truth, and nothing but the truth. I can lie about known facts, if I so desire, as long as I don’t violate a law in doing so. In a sense, this is what fiction is, a lovely lie.

  • Caveat: I do not intend to lie about known facts; in fact, I intend to tell as many factual truths in this blog as I can under the circumstances.

Expression is an interesting Latinate word exactly of the sort with which the law is filled. “Ex” means “from” or “out of,” “-press” means “impact.”  It’s really just a word for letting off steam. Freedom of expression is nothing more than my right to say what I believe.

The trial of Trooper Robert Higbee disturbs me greatly.

It is my opinion, based on what I’ve seen of the live video coverage of the trial (which is admittedly incomplete and intermittent) that the defense is not being treated even-handedly by the judge (a public employee and government official).

Because my knowledge of the case is incomplete, however, I acknowledge that what I may be viewing is simply a very clever performance by the defense attorney to make it appear that the judge is biased. Maybe that’s what some defense attorneys do when they can’t win on the facts.

However, my concern in this trial is that the jury isn’t receiving all the facts that it should receive. Instead, when the jury is present the judge’s demeanor suggests he’s bending over backwards to accommodate the irritating defense attorney and all the biased, state-trooper witnesses for the prosecution.

As a result, the jury may be subconsciously influenced to adopt the judge’s attitude. Then, without the facts about the nature of the intersection where the accident occurred, the jury will conclude that none of the evidence the state-troopers supplied is reliable.

Adversarial relationship of judge and defense, but not prosecution

Outside the presence of the jury, the judge has repeatedly played the role the prosecutor in a trial is supposed to play. He has argued not only the law but also the facts in evidence on behalf of the prosecutor. For example, the judge accused the defense attorney of improperly coaching a prosecution witness before cross-examination. The judge also argued that Higbee “should have known” there was a stop sign at the intersection, because he turned right at the intersection and must have seen the back of the sign.

The judge’s rulings

The judge has made some rulings that make my skin crawl (my opinion being expressed here):

  1. The judge rejected the defense request to suppress some gruesome accident-scene photos as being highly prejudicial, because, he said, the defendant had not abandoned his constitutional right to deny he caused the deaths of the victims.
  2. The judge suppressed a defense subpoena for public records showing that this is the first indictment in NJ of a state trooper in similar circumstances—in other words, records showing that this is a novel application of the vehicular homicide statute.
  3. The judge forbade eye witnesses from testifying to their personal knowledge of and experience with the intersection, even though the judge’s ruling in the motion for a summary judgment included his belief or feeling that Higbee ought to have been aware of the intersection and its inherent risks.
  4. The judge has forbidden the defense from producing any evidence of prior accidents at the intersection on the grounds it is irrelevant.
  5. The judge has forbidden the defense from producing any evidence of inadequate signage at the intersection on the grounds that no standards of “normality” exist and any statements even from experts would be nothing but subjective opinions that would “confuse the jury.”
  6. The judge forbade an elected township committeeman and member of a public safety body from testifying about the history of the intersection.
  7. The judge has suppressed all evidence of post-accident improvements to the signage, which clearly demonstrate the community’s acceptance of some liability in the accident.
  8. In his denial of the summary-judgment motion, the judge used the language of negligence rather than criminality; when the defense pointed this out, the judge denied he had used those terms and then also denied that there was a difference between what Higbee “should have known” and what he did know.
  9. The judge prohibited the prosecution’s expert accident-reconstruction witness from testifying about his finding that the sign placement was “not normal” on the grounds that the witness should have used the word “unusual.”  This expert’s report seems to be evidence, but not evidence that will go with the jury into deliberations.
  10. It appears that the judge has already informed the defense that the jurors will not receive individual, written instructions in which the law of vehicular homicide is included. I don’t know if that means only a single written copy will be provided or no written instructions at all. But in any case, jurors all have a right to accurate, clear written instructions.

Courtroom procedures

This is the first trial I’ve observed in which the judge never refers to the court reporter’s transcription before he makes a ruling. Instead, he refers to his own notes, which don’t seem to me to be entirely accurate, since on several occasions what he has read aloud from them doesn’t match my memory of what I heard or saw.

And this is why I have concluded that cameras in the courtroom are essential for the administration of justice. I’d love to see the issue taken to the Supreme Court. Clerical transcriptions are incomplete of necessity since they don’t record facial expressions and body language and everything else that goes on in the courtroom. In addition, transcriptions often contain errors—and worse yet they contain all the “um”  and “uh” and “yeah” and verbal waste matter that the human ear disregards when trying to understand an utterance. Cameras don’t make those mistakes.

Video “For the Record” in Criminal Trials, Such as Trooper Higbee’s

Yesterday, Judge Batten told defense attorney Sabin that he had observed yellow tabs on an expert witness’s documentation as soon as he pulled it out of his briefcase. When Mr. Sabin contradicted him, the judge said, “The record is clear.”

That caused me to wonder whether CNN TruTV or Court TV videos have ever been used to supplement other court recordings when the “record” is in question.

I thought videotaped testimony might have been used in an appeal at some time. So, today I “Googled” “has televised trial footage ever been used in an appeal”? While the Google listing contained some interesting articles, I couldn’t find any specific appeal of a conviction in which footage of a televised trial was presented to an appeals court by a defendant. However, the Reporters Committee for Freedom of the Press has collected several novel uses of video, such as streaming video from a federal appeals court.

In addition, recently video testimony from a deceased witness in the first Phil Spector trial was shown the jury in the retrial.

My Google search turned up some interesting references to British use of video-taped proceedings. The British appear to be open to using videotapes as an official record, in addition to transcriptions. For instance, the International Debate Education Association provides an outline of pros and cons for cameras in the courtroom, including this suggestion:

  • “A video record of a trial will provide a powerful new tool for both the judiciary and the defendant. At present, an individual who has been convicted may appeal to a higher court. However, the appeal court judges are very reluctant to question the quality of evidence given by the witnesses at the trial, as they were unable to see this evidence being given. Hence the right of appeal against conviction is very limited. Yet, by watching the video record of this evidence, judges would be able to assess the demeanour, body language and overall impression given by each witness ; elements that are inevitably missing from a written transcript.”

I can’t help but wonder if the “tabs” on the document in the Trooper Higbee trial might make it into an appeal if there is a conviction. And if so, I wonder if the defense could use TruTV video footage to demonstrate whether or not the document appeared to have been previously marked up by the defense.

In another trial, a judge’s reaction to something a defense attorney said caught my attention, just as Judge Batten’s raised eyebrows did yesterday—the Melanie McGuire murder trial. In his closing argument, defense attorney Joe Tacopina said something to the effect that it was a case of reasonable doubt (or possibly “many reasonable doubts”).

I distinctly remember the judge in the background smiled broadly at this remark—I would say guffawed, but I might be exaggerating. It was clear to me the judge did not believe there was any reasonable doubt. Oddly enough, the camera angle from which I observed the judge was roughly that of the jury box—in other words, the jury must have seen the judge’s reaction, too.

I wonder how a judge’s facial expressions affect a jury, such as the Higbee jury.

Trooper Higbee and Expert Witnesses for the Defense

Recently I called the village manager to ask how I could petition for a four-way stop at an intersection near my house. She referred me to the Police Chief. He was very receptive to my suggestion and told me what the process is for putting extra stop signs on village streets. In doing so, he claimed that “studies show” certain things about stop sign placement and observation.

OK. So why can’t the defense in the Trooper Higbee trial call as expert witnesses the people who wrote these “studies”? The studies of Illinois intersections can’t be that different from New Jersey intersections.

Enquiring minds want to know.

BTW: The intersection about which I called has been dangerous for decades. In the 1950s the house in which I live was crashed into by a car improperly entering the intersection, and its porch had to be replaced. While living here I’ve witnessed several wrecks, the latest of which involved an SUV completely flipping over and landing on its roof. I was the one to call 911.

The Police Chief told me, among other things, that he would investigate the number of accidents at the intersection.

A Picture’s Worth a Thousand Words in the Trooper Higbee Trial

Yesterday something peculiar happened during the trial of NJ State Trooper Robert Higbee. I saw only the beginning of the “incident,” not its resolution late in the day. So I’ll be watching Lisa Bloom’s “rewind” and “replay” of court proceedings today on TruTV in hopes of finding out what happened next.

What I Think I Saw

Defense attorney Subin during cross-examination asked a prosecution expert witness what authorities he had relied upon to reach certain conclusions and whether he had a copy of the documents with him in court. The witness said he did. He produced a document. Mr. Subin had it entered into evidence and showed it to the prosecutor.

I was surprised. I had no idea experts could bring documentation into court—although it made sense. And I was amazed at how well prepared Mr. Subin was. Frankly, I wondered if he had asked the witness to bring the document to court.

And I saw the judge’s eyebrows shoot up skeptically. (This is the benefit of televised trials; the public gets to see what the jury sees.)

Lisa Bloom’s Discussion

After that, some sort of interruption occurred. It may have been a mid-morning courtroom break; it may have been a TruTV commercial break. In either case, in the interval Lisa Bloom asked one of her legal commentators about this sort of expert-witness cross-examination.

The commentator (a lawyer) said it was quite common for attorneys to cross-examine experts by asking about their authorities and then hoping to force them to produce copies of relevant documents.

So, I wondered, why did Judge Batten seem surprised when this happened? If the commentator is correct, then he must have seen this tactic before. But I’m not a lawyer—and only a one-time juror. I was surprised, apparently, only because of my inexperience.

The Judge’s Admonishment

Later in the day, however, Judge Batten referred to the incident outside the jury’s hearing. He accused Mr. Subin of having marked the document in question with tabs even before the expert witness took it out of his briefcase. The judge told Mr. Subin he saw the tabs before the document was entered into evidence.

Mr. Subin respectfully disagreed. The judge repeated that “the record is clear.”

Memory Is Strange, Video Is Clear

I tried to visualize the incident—and wished I’d recorded the Lisa Bloom show so I could rewind and look for myself as the expert handed Mr. Subin the document. I couldn’t remember any tabs.

I wonder if the judge or Mr. Subin is recording the proceedings and can rewind it to see who was correct.

Trooper Higbee Hears the Definitions of Normal and Usual

I hope by now, everyone knows I’m not a lawyer. I understand that words are very important in the law, however. So, I can accept the judge’s ruling in the Trooper Higbee trial that “normal” and “usual” and “abnormal” and “unusual” do not mean the same thing in the law.

But what I don’t understand is why non-lawyer jurors (like me) should be sent into deliberations thinking that an expert witness who spoke of what was not “unusual” about an intersection did not include in his report a reference to a “not normal” aspect of that same intersection.

My apologies for all the double negatives, but something about listening to a catalog of case law on these two common words has warped my language into something rather abnormal.

The problem, it seems, is that a prosecution expert witness responded to a question about whether he found anything unusual about the intersection in the negative. However, in a written report this same expert witness characterized the placement of a stop sign as “not normal.”

The judge has ruled that the defense may not cross-examine the witness about his written characterization, because—apparently—the report misused a legal term (the witness is not a lawyer). Apparently, he should have characterized the stop sign’s placement as “unusual.”

And this seems to be an important issue, because the statement is part of a report that the prosecution is using against the defendant. As an observer, it seems to me (a non-lawyer) that the court is intentionally withholding exculpatory information from the jury. I just don’t understand how a quibble over words furthers the cause of justice.

And this is why I’m sure that many judges and many lawyers fear jurors. We simply don’t speak the same language. I acknowledge that the judge knows what he’s talking about. He read aloud extensively from case law to justify his ruling.

However, as far as courtroom rhetoric goes, I wonder if the jury isn’t getting the message, anyway. They may perceive the repeated sidebars surrounding some of this expert’s testimony as an attempt by the defense to have this witness tell them something, which the prosecutor and judge don’t want them to hear. Believe me—when you’re sitting in a jury room waiting endlessly for the judge to call you back into the courtroom, you know something important is happening in there that no one wants you to hear.

It’s one of those incredibly irritating gaps I’ve written about several times. It should be clear by now to the jury that this expert—a trooper himself—has something to say that he isn’t being permitted to say. It may not be clear, though, what it is.

National Missing Children’s Day: Since 1983

The Center for Missing and Exploited Children informs us that Pres. Ronald Reagan established May 25th as National Missing Children’s Day in 1983. The three highly-publicized cases that are highlighted on its website are heart-wrenching reminders that this plague upon our land is long-standing.

Why is this such a difficult problem to solve?

I can suggest some reasons:

Even a modern, prosperous society regards children as the property of their parents rather than the responsibility of their elders. I’m not suggesting the parents of the missing are to blame—not at all. I’m suggesting that the law refuses to acknowledge that not all adults should be permitted to control the lives of children. Can you imagine what the ACLU would say if a police officer stopped a man on the street who was holding a little girl’s hand but didn’t look like her father and then demanded that he prove he was the child’s guardian? And even if an officer did something like this, since children have no identification there would be no way of proving a legitimate relationship between the man and the child. Even I have seen such odd couples in public, feared there was something amiss, and did absolutely nothing. How could I? The law protects even pedophiles from public harassment.

Divorce is rampant. Child custody disputes are the inevitable result of “no-fault” divorce, and the children become nothing but pawns. Many states have specific “father’s rights” laws that permit men to demand visitation, even when there is evidence of prior domestic violence. In other words, a man beats his wife in front of the kids; the wife eventually leaves and gets a “no-fault” divorce; the violent man is still entitled to spend unsupervised time with his kids. Personally, I think we ought to mandate that fault be assigned in every divorce decree where children are involved. Furthermore, all too often we hear of divorced mothers moving in with boyfriends who then sexually abuse her daughters—who then run away and become prostitutes. Another divorce-related problem is the “kidnapping” by family members that often follows a custody dispute. It’s utterly ridiculous to treat such kidnappings in the way stranger kidnappings are treated, but in many states that is also the way the laws are written. Even if a woman claims that her ex-husband is abusive to the children when he has them in his custody, she is a criminal if she takes the children out of the jurisdiction of the family court.

  • BTW: Did you know that ex-husbands and fathers who are convicted felons and in prison can have visitation rights to their children—and the children are taken inside the prison to visit these disgusting dads? Is it any wonder that many of these children end up in jail themselves when they grow up? What are these family court judges thinking?

Child pornography is inadequately policed, and prison time for convicted child pornographers is insufficient. The penalty for possession of child pornography should be life imprisonment. This is not a free-speech issue: it is a serious, violent crime that leads to child murder. I realize that the Internet makes policing of child pornography very difficult, but I also know enough about the technology to know that technology exists to track down the physical location of offenders. There is no such thing as anonymity on the Internet.

Pedophilia is spread through society exactly the way a virus is spread: one vector infects dozens of other people who then become vectors themselves. In other words, when a child is exploited he or she can easily grow up to be a child-exploiter. As long as society permits adults to imprison and enslave children in their homes—and then prohibits any would-be rescuer from entering those homes without “probable cause” and a search warrant, some homes will breed future psychopaths. I’m well aware that there is a biological basis for some forms of mental “disorder” such as schizophrenia, but I’m equally convinced there are some problems that derive solely from childhood experiences.

I recently watched “Crimes that Shocked the World” on the cable I.D. channel about Marc Detroux, a Belgian pedophile and child-murderer. His story illustrates each of my points.

  • The law protects even pedophiles from public harassment.” In the Detroux case, there were hints that in fact law enforcement itself was part of a pedophile prostitution ring. And when Detroux’s home was first searched under a warrant, the locksmith who opened the door for the cops said he could hear children’s voices coming from somewhere inside (two girls were actually sealed in an hidden cell at the time), but the cops claimed they couldn’t hear the voices and couldn’t see anything amiss in the closet wall behind which the cell was concealed. Furthermore, a young girl he had victimized told the police what he had done to her, but they refused to believe her—because she was just a girl.
  • Divorce, prostitution, and the spread of pedophilia: Detroux was a child of divorce. His mother’s boyfriend appears to have abused him, and as a result Detroux became a male prostitute before he was 19.

It seems to me that the only thing we’ve figured out how to solve in the 26 years since the first Missing Children’s Day is how to prevent professional child-care-givers from abusing children: we figured out how to install surveillance cameras in daycare centers and other places where children are in the care of strangers. Now, at least, we don’t have endless trials of accused pedophiles with tiny witnesses who may or may not remember what happened.

I imagine I’ll receive a slew of angry comments, because it sounds as if I’m blaming parents for all these ills. I am not. I am blaming family law as I understand it (and, of course, I am not a lawyer, so I may be completely wrong).

Western society has twisted 180 degrees from what we once perceived to be a puritanical attitude toward the family. Families no longer consist of a husband and a wife and their children. Marriage is no longer a contract for life. Almost 50% of marriages end in divorce, with about 44% of custodial mothers being divorced or separated and about 56% of custodial fathers being divorced or separated, according to www.DivorceMagazine.com . This source also cites statistics showing a slight reduction in the divorce rate, as well as a slight reduction in the marriage rate.

We insist on keeping children children for longer and longer: gone are the days when a high-school student had a part-time job during the school year, for example. The minimum wage prevents small businesses from hiring unskilled workers for the chump change I used to get babysitting, for instance. And child-labor laws prevent any kid under 14 from working under most circumstances. The high-school drop-out rate is near 50%.

What are all these immature, unskilled, uneducated dropouts doing with their time? Unemployment is sky-rocketing; they can’t be getting jobs. It’s as if the law wants to encourage kids to join gangs, sell drugs, and become prostitutes. Where else are they supposed to get the money for the cell phones, iPods, designer clothes, body-piercings, tattoos, jewelry, sneakers, video games, junk food, and all the other necessities of modern teenage life?

Missing children aren’t the only children we are failing. But they are the ones most urgently in need of help. Isn’t it abou
t time we figured out how to solve this problem?

Why not issue ID cards to children identifying their guardians? Why not issue RFID-chip or GPS enabled dog tags to children? Why not return to “fault” divorce when children are involved and quit this foolish, destructive visitation-rights policy? Why not make child pornography, child prostitution, child sexual abuse, and child murder the equivalent of first-degree murder—mandatory life imprisonment without parole? Why not use Interpol or some other police agency to track down and shut down all child pornography on the Net? Why not keep children in school without exception until they graduate from high school? (Does anybody but me remember when there were “truant officers”?) Since there are no “summer jobs” available these days, why not keep kids in school all year? That way they would at least be out from under the control of abusive parents and other adults for a little more time each day? And why not find a way for children to safely report abuse and then provide alternative homes?

Trooper Higbee Trial: When a “Perfect Storm” forms around the dead

Watching the defense cross-examination of an expert witness yesterday in the trial of NJ State Trooper Robert Higbee I glimpsed a bit of the build-up to the perfect storm surrounding the car wreck that killed two bright, beautiful young women and led to Higbee’s indictment for vehicular homicide.



  • Sidebar: Defense attorney Subin is very smart. He’s an excellent cross-examiner. Early in the trial one TruTV commentator suggested he wasn’t really competent because of a question he asked about the difference between a muskrat and a possum. But Mr. Subin has more than proved to me that he’s “clever like a fox”.”

Yesterday Attorney Subin called into question the expert’s motives for testifying as he did for the prosecution. (I know that’s what all defense cross-examinations are intended to do, but Mr. Subin did it particularly well.) Subin elicited an admission from the witness that he had actually solicited the gig. This struck me as very telling, not so much of the witness (although I imagine the jury saw it that way) as of the way a traffic accident evolves into a nationally broadcast criminal trial.


It seems to me that most nationally covered murder trials (at least the ones that don’t involve celebrities—just ordinary folks) become centers of perfect storms exactly in the way a nor’easter turned into Sebastian Junger’s Perfect Storm.


The Scenario (as I understand it—and I could be very wrong)


One beautiful autumn night in September 2006 two young women went out to buy milk for their grandparents’ breakfast. One was 19, a licensed driver. The other was a 17-year-old student driver who was only permitted to drive under the supervision of someone at least 21 years old. (Caveat: I am not in any way suggesting the victims should be blamed. Absolutely not. I’m only pointing out how trivial circumstances often lead to a perfect storm.)


Apparently while returning from the store via Stagecoach Road, the passenger failed to secure her seatbelt.


Simultaneously, a high-school student realized he was out after his family’s curfew. He sped home on Tuckahoe Road toward the intersection with Stagecoach Road. Unfortunately, he passed a state patrol car heading in the opposite direction on Tuckahoe Road. Go figure. What are the odds? (It was dark. The patrol car did not have its warning lights on. It was just another coincidence: it’s why the teenager didn’t recognize the patrol car until it was too late to slow down.)


The patrol car was driven by an experienced, trusted officer named Robert Higbee, who promptly followed police procedures to verify that the teenager’s car was exceeding the speed limit. He made a “K-turn” on Tuckahoe and put the pedal to the metal to “close the gap” with the speeding vehicle.


Knowing he was being clocked, the teenager foolishly (as almost all teenagers behave) sped up to try to outrun the patrol car: a simple lapse in judgment that would change his life and leave him forever burdened with a huge sense of guilt.


At the intersection of Tuckahoe and Stagecoach, the teenager tapped his brakes. The trooper saw his brake lights flicker. The teenager must not have encountered heavy traffic on the cross-street, however, because he apparently gunned it and moved quickly through the intersection.


Simultaneously, a father and son in a white van were traveling toward the same intersection and toward the speeder. But a possum just happened to cross Tuckahoe Road at the instant the speeder (using only his fog lights, not his headlights) encountered them. They must have seen the possum’s glowing yellow eyes and caught its pale, hairy body in their headlights. The father and son looked at the ugly critter and completely missed the vehicle speeding past them in the opposite direction. They thought it was a muskrat, but muskrats aren’t native to New Jersey, I don’t think. It was an odd sight, in any case, and caused them to comment about it.


The trooper had clocked the speeder on his radar at somewhere around 65 mph. To close the gap, he had to exceed 65 mph and appears to have reached almost 80 mph when he saw he was approaching an intersection. He stopped accelerating and began tapping his brakes—as any experienced driver would do to avoid skidding and losing control.


By another odd coincidence, Tuckahoe Road was wider and more heavily traveled where the trooper was than it was past the intersection, which the father and son were then approaching. And the trooper had just moments before turned off Stagecoach Road onto it, without having to stop at a stop sign, because there are no stop signs on Stagecoach at that intersection. So, not having stopped at the intersection, the trooper appears to have mistaken its nature as a two-way stop. Or it may have been that during the K-turn he missed seeing the warning sign on Tuckahoe about an impending stop. Or it may have been that the warning sign had been obscured by the speeder’s car as they passed each other. In any case, by the time the trooper saw the stop sign it was too late to stop.


And just at that exact instant, the van in which the two young women were driving entered the intersection.


The father and son were at that instant stopped at the stop sign, facing the intersection and the approaching patrol car. They didn’t see the girls’ white van until after it was hit by the patrol car.


The trooper, though, must have seen the girls’ white van just a split second before he entered the intersection, because black-box data shows a brief attempt to accelerate past the intersection to avoid the collision.


Were the girls speeding a bit? Who knows. It might explain why the father and son didn’t see their headlights approaching the intersection. Or maybe the men were simply still distracted by the possum and by the rapidly approaching headlights of the patrol car, which they could tell wasn’t prepared to stop at the stop sign.


Would a more-experienced van driver than a student driver have slowed slightly at a dangerous intersection near her home? Would a more-experienced driver have known how to swerve or brake effectively? I don’t know. But it’s possible that a more-experienced driver would have been injured rather than killed in the crash.


The impact was great. The girls’ van was spun around. By the odd circumstance that the passenger wasn’t wearing her seatbelt, she became a projectile of sorts, forcing the driver’s upper body, as well as her own, through the open driver-side window—open no doubt because it was a beautiful, early autumn night. They had no chance to survive the impact.


An Accident Becomes A Crime


Why was it that Trooper Higbee was charged with reckless homicide in this case? That’s the real question. What made this tragic accident into a nationally broadcast murder trial?


Yesterday, the cross-examination of the expert witness gave me a clue to the way some perfect legal storms form.


As I understand the testimony, the trooper was driving a 2005 model Ford Crown Victoria, which just coincidentally happened to be the first model patrol car equipped with a drive-train black box to track speed and braking during collisions. If the Wall Police Blotter (which claims to oppose police corruption) is correct, it appears that this fact was discovered only after the trooper’s attorney sought an injunction for the data from the “restraint module” that records whether or not seat belts were being used. Yet another odd circumstance.


Apparently, Ford’s attorneys put Mr. Subin in touch with Ford engineers, including two engineers involved in testing and evaluating the new black-box technology. I believe one of the engineers was the expert-witness who testified for the prosecution yesterday. In any case, somehow (through discovery perhaps) the black box became state’s evidence, not defense evidence.


In addition, at some point the two engineers also conducted tests on the Ford Crown Victoria’s braking distance. I’m just speculating, but I wonder if their braking study wasn’t what attracted defense-attorney Subin to them in the first place. (Perhaps we’ll hear more about this braking study in the defense case, although Mr. Subin said yesterday that the engineers did not study the exact model of Ford Crown Victoria the trooper was driving that fatal night.)


Subsequently the expert witness resigned from Ford to go into business as a consultant on black-box data—just one of those odd things that happen all the time. Then, in early 2007 when Trooper Higbee was arraigned, apparently one Ford engineer was disqualified for some reason from serving as an expert witness in the trial. So, the expert witness contacted the prosecutor and offered his services, as a newly available independent consultant.


In other words, another domino in the chain fell—because this new consultant was hungry for work he became an expert witness in the trooper’s trial. And because he was new in the field, his expert credentials were a bit shaky and his experience testifying before a criminal jury was scanty. And he made the mistake of seemingly supporting the prosecution’s view of the black-box data, rather than supporting his own findings.


This sequence of events is probably typical of the perfect-storm series of events that led to the trial. The first domino in the chain, I imagine, was the family’s anguish and anger over their daughters’ deaths, which eventually swirled into yet-another victims’ rights campaign. When the public identifies innocent victims like these, the public wants a guilty party—in this case the trooper who was performing his duty, not the speeder who initiated the trooper’s high-speed “closing of the gap,” because the speeder was nothing but a typical teenage boy, but the trooper was a trooper.


Then, too, the accident came after years of complaints about the risks of high-speed chases throughout the nation—not to mention incidents of racial profiling by NJ state police.


But the gasoline on the embers in this case is clearly the media. If TruTV hadn’t decided to televise the trial gavel-to-gavel and CNN hadn’t decided to provide a daily live feed via the Internet from the courtroom, I would never have heard of this case. So, how did CNN’s TruTV senior vice-president and producer, Tim Sullivan, happen to hear about this case? Was he simply surfing the net on the prowl for a good story? Or did someone in Cape May, NJ, contact him? And if so, who? And why?


Wrong Place, Wrong Time


Trooper Higbee is a classic case of “wrong place at the wrong time.” And I honestly hope he’s acquitted.


But Trooper Higbee isn’t the first person to be caught up in a perfect storm. Remember Dr. Sam Sheppard—the original fugitive? He was convicted and only released from prison years after his conviction because of a Supreme Court ruling concerning adverse publicity surrounding the trial.


How can you explain the publicity over a non-entity like Casey Anthony except with a perfect-storm scenario? The media are holding the spotlight to her. I can only guess that some reporter in Orlando first caught wind of the story and brought it to national attention as a career move. Ms. Anthony is young, white, and attractive—a perfect “eye of a storm.”


The only reason Stacy Peterson’s disappearance became national news was that it occurred only shortly after a jogger named Alma Mendez went missing and then was found dead in a forest preserve in the Chicago suburbs near the Petersons’ home. And all this came after Lisa Stebic disappeared from her home not far from the Petersons earlier that year. Media “journalists” were already swarming around the Chicago suburbs and stumbled across the missing woman case.


It was the perfect set-up for another perfect storm: an arrogant suburban husband who just happened to be a cop with a beautiful, young, missing wife.


 


Where did “Bluebeard” Drew Peterson get his blue barrel?

When Drew Peterson’s stepbrother, Thomas Morphey, reported he had helped the Bolingbrook, IL, police officer remove a heavy blue barrel from his house in late 2007, I immediately thought Peterson must have disposed of his fourth wife’s body in a local landfill. Now that a blue barrel has been found in the Des Plaines River in proximity with human remains, I’m somewhat skeptical the remains will prove to be Stacy Peterson’s.



  • Sidebar: This isn’t the first blue barrel containing human remains that’s been found floating in the Des Plaines River, and it probably won’t be the last. It makes this mystery fiction writer question why it’s so easy for murderers to acquire blue Waste Management barrels. If you take a look at a Waste Management website you don’t find blue barrels on offer for disposing of one’s enemies. It isn’t even clear to me that I could buy one as a private individual—they appear to industrial products.

In 2007 when local groups searched frantically for Stacy Peterson’s body in nearby rivers and canals and in the vast fields around Bolingbrook, I knew they wouldn’t find her. A cop simply wouldn’t dump a body where it could be found so easily. Even “civilian” criminals such as the mob and drug dealers know better.


A landfill is the perfect place for permanent disposal of biological material. Everything in a landfill is rotting; even cadaver dogs are easily thrown off the scent in a landfill (as we learned in the Utah Lorie Hacking murder investigation). In addition, a blue Waste Management barrel in a northern Illinois landfill would not arouse the slightest suspicion (Waste Management’s headquarters are in Oak Brook, IL). But it would if it bobbed up on the Des Plaines River.


And then there’s the fact that there’s a landfill within about 10-12 miles of Peterson’s home—and, as a patrol officer, Peterson would have to be aware of that fact, as well as aware of all the other nearby sites where criminals tend to dump bodies that are never identified.


Frankly, the Des Plaines River is the last place I would have expected a police officer to throw a blue, plastic barrel. If the remains turn out to be those of Stacy Peterson, you can take it as an IQ test for Drew Peterson—an IQ test he flunked.


Think about it: A body sealed in a barrel will produce a huge amount of gas, as any policeman would know. Gas is lighter than water. Gas is lighter than air. The barrel would be bound to rise to the surface of the river eventually. Furthermore, the barrel would help preserve the body, rather than allowing it to disintegrate in the water and be washed away irretrievably. (Even Scott Peterson—assuming he really did it—knew enough not to put the body in a sealed, plastic barrel.)


I suppose it’s no secret that I live in northern Illinois. I often drive in the area of Bolingbrook. Soon after Stacy Peterson’s disappearance made the news, I happened to be very near the Peterson residence. I spotted another possible disposal site near there: a massive construction site. Huge road-graders were leveling several acres for a housing development. A dismembered body could easily have been dumped around that area—and the next day graded over, eventually even sealed beneath pavement or concrete foundations.


If Drew Peterson murdered Stacy Peterson and then asked his mentally disturbed stepbrother to help him dispose of the body in a blue barrel, which he then threw into the Des Plaines River, he should go down in history as the stupidest Bluebeard in history.



  • Sidebar: As a mystery fiction writer, I can’t help but consider alternative scenarios. What follows is pure fantasy on my part. I know absolutely nothing about this case beyond what I’ve read in the papers or seen on TV. I also believe that everyone should be presumed innocent unless or until proven guilty by a jury of his peers. What if Drew didn’t do it? What if someone did it who was secretly fixated on Stacy, who had suicidal tendencies and was known to behave erratically? What if Drew was the one who tried to help this other person cover up the crime, and not the other way around? 

There are so many egregious crimes associated with Drew Peterson, it’s hard not to think he really did it. And it’s ghastly that he got away with murder for so long, only because he was a police officer. For more about the background to this crime, I recommend this story from the Chicago Breaking News Center: http://www.chicagobreakingnews.com/2009/04/drew-peterson-sued-for-wrongful-death-of-3rd-wife-kathleen-savio.html  And for more about Peterson’s third wife Kathleen Savio’s death, I recommend A Candy Rose: http://www.acandyrose.com/stacy_peterson_timeline.htm


And I will repeat what I have said before: young women must be very careful about whom they choose to love. If you fall in love with a vampire, you will get bitten.


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