Why didn’t Carla Hughes talk?

I can hear you now: “No innocent person would sit quietly and watch herself be charged with capital murder.”

People are complex and mysterious. Most of us take what other people say at face value, because we always say what we mean and mean what we say.

Oh? Actually, I believe we accept what other people tell us as generally true, because a life of complete skepticism would be very complex and frightening.

But not everyone takes what other people say at face value. Law enforcement never takes what people say at face value. People who go into law enforcement are not only congenitally cynical, they are trained to expect everyone to lie.

Catching a Liar

A couple of years ago I took an online course in lying for writers (meaning, how to depict liars realistically in fiction). The teacher was a federal law-enforcement official. From this class I learned absolutely nothing except that law enforcement officers think everyone is a liar and that they (law enforcement) are uniquely gifted at detecting liars by their facial expressions, body language, and choice of words. (Besides, as soon as the class began I realized that a good lying character has to deceive the reader and not reveal his true character until it is much too late in the plot. So, I have no idea why I thought such a course would be worthwhile.)

As Ken Adler aptly notes in The Lie Detectors: everyone thinks they can detect a lie, but actually we are guessing and are only right as often as random chance:

“In 2006, one review of the available research concluded that people can successfully sort truth-tellers from liars only 54 percent of the time, or about as well as blind guesswork. Surprisingly, the more intimately we know the deceiver, the worse we do. Even cops, judges, and psychologists—those citizens professionally licensed to sort truth-tellers from liars—don’t get it right much more than half the time.”

Succeeding as a Liar

The other side of the lie coin is that most of us aren’t very good at lying. When we tell a lie, we expect to be able to deceive and then move on. But the problem with lies is that when they are designed to deceive a specific person, someone else always knows the truth. When a lie is designed to deceive everyone, the liar has to lie again and again in order to prop up the first lie.

Very few people are skillful enough to sustain the effort.

Expert liars do exist, though. Some people spend all their lives lying. They are very smart. They know how to tell consistent lies. These people (sometimes called “pathological liars”) lie not to cover their shameful deeds but to manipulate other people. They lie to aggrandize themselves and denigrate others. Being life-long liars, they are incredibly skillful creators of believable fictions.

The Carla Hughes Trial

Law enforcement in Mississippi believed Carla Hughes lied to them—even though for the most part she lied only by omission.

I may have missed it, but I believe she told a cousin, not the cops, that the reason her revolver had no bullets in it after the murder was that she had expended them in target practice. (This is one of the most troubling lacunae in this puzzling case: in court no one other than the cousin said anything about this statement, not even the cops. Apparently no one bothered to investigate the possibility that she was telling the truth about target practice.)

Law enforcement felt that Carla Hughes lied to them, because (as they said on TruTV after the trial) they are trained to detect deception. One detective even claimed that her character witnesses (mother, father, preacher, etc.) lied about her character.

The detective claimed he knew another side of Carla: he knew she was a member of a biker gang. He claimed the people with whom she “rode” were known to be of dubious character. “Aggressive” is the word he used, I believe. He also said he did not personally interview any of these aggressive bikers, but “someone” else told him about their poor character. (Hmm, I wonder if that “someone” might have been Carla’s cheating ex-lover.)

The detective even implied that her equestrian skills showed that she was not the meek, peace-loving person she pretended to me. (Hey! Did you ever see My Friend Flicka?) I suppose he detected this subtle form of equestrian nastiness based on his police training.

Don’t forget: this is one of the detectives who concluded that the man who last saw the victim alive was telling the truth—the man who found the body, the man who had gunshot residue on his hands, the man who claimed to kneel over the bloody body but who had no blood on his clothes, the man who was cheating on the victim with at least two other women, the man who left town before the trial and promptly married another woman.

She May Not Be Telling the Truth

Carla Hughes, in my opinion, is not telling the truth about what happened. Her statements after the murder are inconsistent and strain credulity, to put it nicely. But all this means to me is that Carla Hughes is not a pathological liar or a skillful lifelong liar.

In fact, she did not tell anyone much of anything about what happened. Even her mother said on camera that she did not “have all the facts.”

I suspect the reason Carla Hughes failed to talk in her own defense is that she is smart enough to realize that she dug her own grave with the lies she did tell. She also understands the Kantian categorical imperative: having lied before, the jury would have no reason to believe her when she told the truth.

Carla Hughes had no way of substantiating truthful statements after she first lied. She could not prove that she did not empty the bullets in the gun by pumping them into the victim’s body. She could not prove what happened to the knife, because she probably does not know where it is. She could not prove that she was not the one to wear those shoes to break down the victim’s door or at bloody crime scene. (Even the law acknowledges a defendant cannot prove a negative.) And Carla could not prove exactly where she was when she made cell-phone calls from within 2.5 miles of the crime scene.

The only person who could substantiate anything she might tell the cops was her lover, a man who was striving mightily to avoid being arrested himself.

Alder’s The Lie Detectors: The History of an American Obsession

I happened to be reading Alder’s book last week when the Carla Hughes verdicts came down. It is a history of a technology, not only the technology of the lie detector apparatus, but also the whole technology of policing—everything from squad cars to “the third degree.”

The book is fascinating and one that every defense attorney should read. Alder is a scholar of the history of science, not a journalist. (He’s a professor at Northwestern University.) While he writes in a vivid, journalistic style, he also employs a rigorous methodology and supplies extensive notes and sources.

If Carla Hughes’ attorneys had read the book, I doubt they would have defended her by using the traditional “reasonable doubt” defense or by pointing an accusing finger at a specific person. I suspect they would have insisted that she tell them the truth, even if she did not want to tell the truth to the jury.

Why? Because the greatest flaw in the defense, IMHO, was that Carla Hughes’s attorneys did not tell a coherent story to the jury. Despite her stellar biography, the woman who sat behind the defense table throughout the trial did not appear to be a person of
integrity: Carla Hughes’ story for the jury did not match her life’s story. There was a big disconnect. The character witnesses appeared too late—after the guilty verdict.

No one knew that she had once before been betrayed by a man but reacted in that instance with courage, not anger.

 

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Google Book Settlement, Copyrights, and More

A comment posted below expresses skepticism about my assertion that under the Google Book Settlement authors of out-of-print books are NOT entitled to 100% of the 63% of revenues Google realizes from sales of the book’s scans.

I have participated in two conference calls with the Authors Guild (the controlling authority in the settlement for authors and publishers), in one of which a Google lawyer participated. In the first of these conference calls I asked about my dissertation, which appears to have been scanned by Google, because it was on file at the University of Michigan Library. In the second call, I asked about my access to records of Google sales for my out-of-print books (to which I own the copyrights, but not the ISBN).

Dissertations

The Authors Guild assured me that my dissertation 1) would not appear in Google Book Search, even though it is clearly listed in the Google settlement database, and 2) no dissertations are covered by the settlement because they are not considered to be “published.”

I have made a “claim” to authorship of my dissertation at the settlement website, even though supposedly I am not included in the database. I also understand that my dissertation is not published. Nonetheless, a decade ago a private party licensed the University of Michigan’s dissertations and was reselling my dissertation, without paying me anything. I had to write to the company’s lawyers to have my dissertation dropped from their catalog of dissertations for sale. (At the moment, I would rather not dig around in my archives to find the correspondence, and instead I ask you to believe me.)

Out-of-Print, but Copyrighted Works

My publisher has listed my books (although I now have the copyrights) on Google Book Search: http://books.google.com/books?id=ddEFyLv4_fkC&printsec=frontcover&dq=Mambretti#v=onepage&q=&f=false and http://books.google.com/books?id=qbp9JTlZKR0C&printsec=frontcover&dq=Mambretti#v=onepage&q=&f=false

Once the settlement is implemented, Google will send 63% of the proceeds to my publisher, who has the responsibility of sending me my half. This is a fact. I cannot even obtain a report from Google of sales, even though my publisher no longer has any rights to my books. In the second phone call, I specifically asked for a copy of the report, and here is what the Google lawyer/Authors Guild lawyer told and then sent me in an email, which I still have:

Dear Ms. Mambretti:
You cannot obtain this same information with respect to user access of the content currently available at Google.com.  That content isn’t available because of the settlement.  It’s there because your publisher has authorized display of a limited number of pages of your book through a contractual agreement with Google.  The publisher has access to that information as a result of that contract.
Sincerely,
The Authors Guild

Please Tweet/reTweet this post if you are also in my situation. The Authors Guild ought to be renamed the Publishers Guild (and the “guild” word is exactly as nasty as I said it was in the previous post).

The fundamental right of citizens in the United States

I am not a lawyer. No opinion I express in this blog has any basis in law other than what I understand, as a citizen, to be the laws of this land.

The fact that I feel compelled to make the above statement before I begin this article on the relationship between freedom of speech and author copyrights gives me pause. Why do I feel so fearful as I begin to express yet another “humble opinion”? It certainly is not because bloggers are so widely despised by professional journalists of all “political stripes.” I have no shame in that regard: the fact that no one pays me to write what I do is actually a source of pride. (So far, BTW, no one has even sent me a free copy of their book to review on this blog.)

And it certainly is not that this blog is notorious in any sense: if it were notorious I would start accepting paid ads and begin to make some money from it.

Broadsides

The first blogs in the English language were self-published, folio-sized pages called “broadsides” (in England). Broadsides were posted on walls and handed out to passersby on the streets from the time of the first printing presses in England. Most were political tirades. Many were “murder” pamphlets (yes, murder has fascinated the public since they invented printing presses).

Thomas Paines’ Common Sense, for example, was little more than a self-published broadside, but it ignited the fires of revolution. He wasn’t a professional journalist. He wasn’t a lawyer. He was a gadget inventor.

All broadsides were, in effect, published without a license, contract, or any legal permission from the British government. They were not officially sanctioned. All broadsides were in this sense “illegal.”

Imprimatur, Stationers Register, and Copyrights

I suspect few people these days know that until the U.S. Constitution, authors did not have the right to express themselves freely or to sell copies of their writings.

Back in the European Middle Ages long before the printing press, few people other than nobility and churchmen could read or write. Any literate person might write a text, but the text could only be copied and transferred by the writer or by his or her sanctioned scribe (mostly his, of course) to other people to read. That meant that only officially sanctioned texts could be circulated—only texts approved by the government and church.

After Gutenberg, though, both the rulers and the church recognized the potential for unauthorized, heretical, and “spurious” writings to be easily duplicated and circulated. In England, for instance, Henry VIII was terrified that a Calvinist might translate the Bible into English. He burned such upstart writers at the stake and required all publications in his kingdom to bear his royal “imprimatur” (that is, seal of approval).

Rather like modern unions, another powerful force in the old days was the guilds—professional associations that granted permission for certain individuals to engage in certain activities, such as masonry, glove-making, and printing. In 1407 the Worshipful Company of Stationers and Newspaper Makers (aka Stationers Company) was founded. Its purpose was to establish a government-sanctioned monopoly over everything printed (copied) in the country. The Stationers guild maintained a “register” or listing of all publications for which they had been paid a fee for a license—that is, a copyright.

By Shakespeare’s day, both the Catholic Church on the Continent and the British monarchs enforced heir imprimaturs on all publications. Of course, renegade printers still managed to crank out political broadsides, unauthorized religious tracts, and scandalous novels without any such imprimatur or “copyright.” And, of course, the Stationers continued to extract their fee for all sanctioned publications.

  • Sidebar: Shakespeare actually paid a printer to publish his sonnets. The publisher bought the license to print and sell his sonnets from the Stationers Company. Shakespeare never received a penny for the sale of his sonnet cycle, which is undoubtedly the greatest volume of poetry ever written in English. (Yes, that’s right. Shakespeare was not only self-published, he was published by a “vanity press.”)

The point, of course, is that until the U. S. Constitution, licenses to publish were solely for the benefit of the authorities (church and state) and the printers who wanted to sell copies of texts—not for the authors.

The U. S. Constitution

Article I, Section 8 of the Constitution, grants the Congress the power:

“To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries….”

That’s “Article 1,” the first section of the Constitution. The Founding Fathers did not grant this power to the Executive or Judicial branches of the government. They granted this power to the people’s representatives. And they knew that the right to own one’s own writings and ideas was so fundamental to freedom that they specifically spelled this right out in the body of the Constitution. This is not an after-thought, like the amendments, which include the right to freedom of speech.

Ownership of expression is a more-fundamental right of U. S. citizens than even the right to freedom of speech.

What I Fear

Like everyone on the Internet, I struggle to protect my privacy and to balance that with my publication.

A writer by definition is someone who wants to “speak their mind” in public. Even poet Emily Dickinson whose hundreds of poems were not published in her lifetime wanted her poems to be published and wanted people to read them. She also developed agoraphobia and never left her parents’ home after her mid-twenties. Clearly Emily Dickinson craved privacy.

So, when I begin to suspect that people who I don’t want to possess my private information have acquired it, I worry. And when someone posts an obscene comment on this blog, or posts a threat, or tries to circumvent the blog’s security to post spam and use my blog as a sort of broadcast beacon for their own website, or when a spider bombards my blog in search of illegally republished and copyrighted images, or when a users browses to the blog with software designed to steal passwords, or when any single user repeatedly visits the site without subscribing and by directly hitting the root directory, I find myself becoming paranoid.

I also fear being black-balled by Google and other search engines, because of some opinion I express about a specific individual or business.

And I fear having my private email address sold to or otherwise provided to third parties, following my response to a public request for email communications. When a private email user communicates in confidence with other people through email, I feel it is a horrible breach
of trust to disseminate that address. (I’m not referring to my professional email address, which is posted on my website and elsewhere.)

All of these things have happened to me. Each of these, it seems to me, is an attempt to intimidate me so that I will not exercise my right to free speech.

But they also relate to my ownership of the words I write.

What Does This Have to Do with Copyrights?

Ownership of one’s words is an absolute American right, in my opinion.  However, copyright legislation and other actions of the courts have mangled the Constitution so that now “printers” have total control over writers. In particular, “electronic” publishers have total control over freedom of speech in this country.

Let’s take Amazon as an example. (I use this example only because I fear Amazon far less than any other venue or publisher at this moment.)

Two nonfiction titles I published through a “legitimate” publisher are listed for sale on Amazon.com, even though they are technically “out of print” and even though the copyrights I granted to the publisher a decade ago have reverted to me. In other words, Amazon is stilling selling new copies of the book, and the bulk of the revenues go to my publisher, not to me. (Foolish me, I had thought that an out-of-print book was not the same thing as a back-list book.)

Amazon is also listing used copies for sale from a number of vendors. When Amazon sells a used copy, all the revenue goes to Amazon and to the used-book vendor. That’s fine with me. I’m pleased to think that someone still wants to read my books, and I am a great fan of used books myself. But the sale of a used book is not a violation of my copyrights. No new copies of the books are involved in used-book sales.

When my publisher recently sent me the original discs of the texts of my books so that I could do with them whatever I pleased, I set up an account as an Amazon Kindle publisher with the intention of publishing the two titles in electronic form. I actually sold a few Kindle copies—very, very few. For the privilege of using the Kindle “store” and platform, Amazon gave me a “royalty” of 35%. Now, I thought to myself that it was odd for Amazon to give me a “royalty” on property I was selling, as opposed to taking a “fee” or “commission” on the sales, but since 35% of something is worth more than 100% of nothing, I signed on the dotted line. I felt then, as I do now, that the use of the term “royalty” made Amazon a publisher, not a bookseller. And I wish they would change that term in their contract.

Then I learned that the ISBN numbers of the books are still owned by my former publisher, not by me. So I promptly took the books off the Kindle store website. In other words, I learned that my former publisher still has certain rights under the law to my books. And it all has to do—not with copyright law—but with a monopoly (think Stationers Register) that the U.S. government has granted to another publisher, Bowker. By law, Bowker has the exclusive right to issue ISBN numbers to books published in the U.S. If a publisher wants to sell a book through any venue other than its own website or bookstore, the publisher must buy an ISBN number for the title. All other venues and booksellers rely on the ISBN as a unique identifier of the title—for reasons that I’m sure are obvious.

In order to republish my books on Amazon Kindle I need to buy new ISBNs. And I was ready to do this when I learned about the Google Book Settlement. I examined the Google Book Settlement database and discovered that Google has scanned the hardcopies of my titles and has listed them as published by my former publisher. So, I promptly registered my claim as the author. However, after extensive communication with “my lawyers” at the Authors Guild I have been informed that I will only receive a 50-50 share of publishers’ revenues if the book is sold through Google Book Search. That’s right. My copyright. My books. Out of print. Even if I buy a new ISBN and republish the titles, my publisher will still be legally entitled to compete with me and to sell an out-of-date, inferior form of my words. I have no say in the matter. I cannot “retract my words” from the marketplace.

Back at Amazon, it turns out that Amazon not only can remove books from its virtual shelves at will—or if someone else makes copyright claims on them—and not only from its “store,” but also directly from the Kindle devices of people who have legally purchased them. Amazon says that it did this because they discovered that some of the ebooks they sold violated copyright laws. Since when is Amazon a judge on the federal bench to make this call?

Amazon also publishes books through its BookSurge and CreateSpace subsidiaries. However, even if you own a block of ISBNs, CreateSpace will not permit you to use your ISBNs—any more than BookSurge will. Both companies insist on being listed as “the publisher” for ISBN purposes—at the same time as labeling their customers as self-publishers. They pass the cost for the ISBN through to the authors (who do not own them), though, and not at a discount, either. So, why would Amazon insist on holding the ISBN but not the copyrights of a publisher? Well, because it is the ISBN that makes it possible to sell a book in the public marketplace. Without an ISBN, a book cannot be listed on Amazon or any other bookseller website. Without an ISBN, a book cannot be distributed nationwide in any way except by snail mail.

What Is a Copyright Worth These Days?

In my opinion, nothing. Copyright is a concept that evolved after it became relatively easy to duplicate a text. It was a right designed to protect the originator of the text from exploitation by duplicators. Now, with the advent of digital duplication and the Internet’s unlimited distribution capabilities, copyrights are under the control of a cabal comprising the Congress, the courts, and Internet-service providers.

Is there freedom of speech in a society in which there is literally no way to speak freely without the imprimatur of a publisher, printer, ISBN registry, or Internet-services provider?

 

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What’s it like to be on a criminal jury?

My legal-mystery (courtroom drama, if you prefer), The Juror Hangs (ebook, $3.99) is now available at www.Smashwords.com for only $0.99 (with a promo code coupon UX27D).

So if you have ever wondered what it’s like to serve on a criminal jury, please sign up for a FREE Smashwords account, and then purchase and download The Juror Hangs by Catherine Mambretti at this incredibly affordable price (until Nov. 15).

The trial in The Juror Hangs takes place in the same Cook County Criminal Courthouse where I served on a jury. It even features the same deliberation room and a deliberation experience very like my own.

We all knew we were in for trouble when we saw hanging on the wall a 10,000 piece jigsaw puzzle some jury had finished and subsequently had varnished and framed.

At Smashwords, you will have the option of downloading the ebook in almost any format you prefer, from Kindle-ready to Sony-ebook to PDF. The Juror Hangs is also available on the Stanza iPhone app (through the Smashwords catalog), but the promo price is not available in that format.

If you would prefer to read The Juror Hangs on your iPhone and still use the Smashwords promo code, I recommend you get the GoodReader app and then use Safari to download the PDF version from the Smashwords site.

Let’s face it. Jury duty can be a trial. And sometimes in the end the criminal isn’t the only one who hangs.

Cell phone forensics—Keyon to Carla, incoming

In several recent murder trials, cell-phone records played an important role. Sean Fitzpatrick used cell-phone records as part of an alibi. The prosecution in the Carla Hughes trial used both her and her boyfriend’s cell-phone records to place the defendant in the vicinity of the crime scene at time the murder is believed to have occurred. Even in Scott Peterson’s trial years ago, the prosecution used his cell-phone records to show a supposedly suspicious pattern of behavior (calling girlfriends while driving).

In the Carla Hughes murder trial, police discovered that Ms. Hughes and her boyfriend (also the murder victim’s fiancé) communicated by cell phone only minutes before the crime is believed to have been committed. According to TruTV’s Jean Casarez (on the air), police have never been able to question Ms. Hughes about the call.

But what do cell-phone records really prove?

The principle fact proven by cell-phone records is that a call was made from a certain phone number to another phone number at a specific time. Note that I used the phrase “phone number” rather than “cell phone,” because a cellular network can only track phone numbers, not phones. GPS systems can track a physical cell-phone, but cellular networks alone cannot.

According to “HowStuffWorks,” each cell phone has a unique 32-bit Electronic Serial Number (ESN) embedded in it at the time of manufacture. In addition, when the phone is activated, two other codes are programmed into the device: a Mobile Identification Number (MIN), which is based on the 10-digit phone number, and the service carrier’s 5-digit System Identification Code(SID). These three codes uniquely identify the cell phone account to the network.

Here, too, please note that I used the phrase “cell-phone account” and not “cell phone.” They are not the same things. As an analogy, consider your bank account and account number. Anyone can deposit money into a bank account, whether they own the account or not. Criminals can steal a bank card or forge checks to access the account’s funds.

Who Made the Call/Who Answered the Call

Cell-phone records do not tell a jury who actually made or received a phone call—and not only because the device can be used by anyone who possesses it (a thief, for instance). It is possible for criminals to use scanners to hijack a cell-phone’s identifying codes (ESN and MIN) and then to use them to make calls from someone else’s account. (The only way for the phone’s owner to find out that this theft has occurred is to carefully monitor records.)

Theft of phones and phone numbers is a critical issue for cell-phone forensics. If I were a defense attorney, I would insist that the prosecution prove both that the cell phone in question was in its owner’s possession when incriminating calls were made and that all the calls from the phone number were actually initiated from the physical cell phone.

It is true that cell-phone owners can password-protect their phones, but I suspect very few do so. So, in most cases a stolen or borrowed cell phone can be used by people other than its owner. And when a stolen cell phone contains data indicating that such a password has been set up, there is still no guarantee that the owner had activated the password protection when the phone was stolen. (How many of us really expect to lose our phones on any given day?)

In the Carla Hughes trial, for example, as evidence that the defendant knew the victim, the prosecution pointed to two calls to the defendant’s cell phone from the victim’s cell-phone number. But there was no way to prove that the victim actually placed those calls. The calls might have been made by the victim’s fiancé to Ms. Hughes, for example.

  • Sidebar: As a mystery writer, I can’t help but imagine many ways a person might be “framed” by a phone-number hijacker or by a cell-phone “borrower.”

Call Records

Cell-phone account records show only that a given account (phone number) was charged for certain cellular services. In most cases, the records show when a call was initiated and to what phone number, when a call was received and from what phone number, the duration of the call, and the location of the cellular tower(s) (or “masts”) that routed the call.

Depending on the account type, though, as I understand it (and that isn’t saying much) all uses of the phone may not be fully recorded. For example, an account with unlimited services of one type or another may not be tracked at the level of detail a more-limited account may be. Neither SMS messages, for example, nor data services (email, the Internet) might be tracked in detail by a given carrier. (I seem to remember a case in which SMS or other types of messages were not part of the records presented in court for this reason. And my iPhone records show nothing about my constant data usage.)

The issue of data services records particularly intrigues me. A full-function 3G or 4G phone has all the multimedia functions of a laptop, including Skype phone calls (and apps do seem to be available). I don’t know, though, whether Skype Internet phone calls generate the same level of detail as do other calls.

  • Sidebar: I’ve found several interesting and potentially useful 3G “forensic” apps for the iPhone: several GPS apps, flashlight apps (for nosing around in dark places), a sex offender locator, “CSIScanner” (a dopey fake lie-detector test), most-wanted lists, “Crime Rate USA,” and many books and courses for whodunit fans.

Certainly a 3G phone could use interactive instant messaging services to communicate with another Internet user. And these communications would not be included in the carrier’s account records. In such cases, a type of computer forensics would have to be applied to cell-phone’s storage media.

  • Sidebar: I suppose a clever investigator could also make some assumptions about a cell-phone account by examining records of “missed calls,” since even when a cell phone is turned off records of incoming calls are retained. For example, in a mystery novel I might have my P.I. note that incoming calls were missed during the time of the crime. It’s one of those “absence of evidence is not evidence of absence” non sequiturs, though: A missed call tells a jury only what the phone’s owner was not doing—not what they were doing.

Location of the Cell Phone During Calls

Cell-phone records do not prove exactly where a person was at any given time. And this is my biggest problem with courtroom use of cell-phone records.

  • In the Sean Fitzpatrick case, he claimed to have checked cell-phone messages when his phone was on his kitchen countertop and to have made calls at critical times.
  • In the Scott Peterson case, his cell-phone records supposedly showed that he was making questionable calls while driving away from his workplace toward San Francisco Bay. In my opinion, though, it is hard to understand wha
    t possible relevance this information had to the prosecution’s case. Peterson told the police that is what he was doing and when.
  • In the Carla Hughes case, her cell-phone records supposedly placed her in the vicinity of the crime scene, while simultaneously the cell-phone records of another suspect placed him further away from the crime scene. Since Hughes did not testify in her defense, the jury concluded (incorrectly, I believe) that this was evidence of her being the murderer. (At worst, to me it sounds like evidence she had guilty knowledge.)

As a result I have several problems with cell-phone location information. Cell-phone location records are:

  • After-the fact: 

    All that such after-the-fact records can tell a jury about a cell-phone’s location is which cellular tower (or “mast”) the phone (or a phone using a hijacked number) was near when a call was made or received.  In a moving vehicle, the records may show movement between towers or—may not. If a call is initiated within the range of given tower, that tower may continue to receive the call’s signal for the duration of the call, or it may relinquish the call to another tower. It all depends on a complex algorithm used by the specific carrier to route calls around its network.

    Precise “triangulation” tracking of a cell phone’s location (in real time, as opposed to after the fact) is not a part of the records presented in court.  Such triangulation requires law enforcement to access the realtime activities of several towers in an area where a given (known) cell phone is believed to be.

  • GPS tracking of a cell phone, which is precise, requires the cell phone to contain a GPS device and requires the cell phone and/or the GPS services application to be on. GPS locations are not included in the cellular carrier’s records.

  • Imprecise:

A tower or mast has about a 25-mile radius of coverage. In a rural area with few towers, the records might conceivably prove only that a cellular call was made within 25 miles of the tower, but not in which quadrant the phone was located—if, for example, the next-nearest mast was over 25 miles away. Conceivably, in such a situation, the cell-phone could be almost 50 miles away from any given location. In a city crowded with masts, the cell-phone records could prove a location more precisely. But, if I were a juror in a case involving cell-phone locations I would want to know how dense the population of towers was in the area before I excepted the records as evidence.

  • Easy to falsify:

Sean Fitzpatrick demonstrates how easy it is to falsify the location of a cell-phone’s owner if not of the phone itself. All you have to do is charge up your cell phone, turn it on, turn off the ringer and vibration (so you can explain why you did not answer it during the period in question), and then leave it somewhere while you go off and commit a crime. You could even have a second cell-phone in someone else’s name with which you make a call to your distant phone just to make sure its location will be tracked in your records.

Now I know most criminals are too stupid to figure out a clever way to use their cell phones as an alibi. So, in most trials cell-phone records may be valid evidence of “opportunity” to commit a crime.

But a few criminals are smart. A few criminals are technically knowledgeable. A few criminals can manipulate cell-phone records for their own purposes. A few criminals can actually hijack a cell-phone number. Even a low-IQ murderer like Michael King knew enough to smash and discard his cell phone before the cops found it in his possession.

Besides, very few cops and few prosecutors are Sherlocks either.

Jurors Need to be Skeptical

IMHO, jurors need to examine cell-phone records skeptically. The cops may say that the records “prove” where a certain person was at a given time, but on their own the records do not “prove” anything. Cell-phone records are “evidence,” that is, data that may add up to proof in context.

I suppose that’s what irks me about most forensic evidence—it is only evidence, not proof. It is subject to interpretation, and the quality of the interpretation depends on the quality of the analysis from which the interpretation evolved.

The problem with pointing an accusing finger

Defense attorney Walls in the Carla Hughes trial points out quite rightly that the defense had no burden of proof in the case, even when the defense specifically accused someone else of the crime. The only time a defendant accepts a burden of proof is when he or she claims innocence by reason of insanity. Only then must a defendant prove anything: in that situation the defendant must prove insanity.

Mr. Walls made the remark in an on-camera interview with TruTV’s Jami Floyd. She asked him whether there really was evidence that Keyon Pittman (the cheating lover) actually did commit the crime and why the police did not charge him with it if there was.

Mr. Walls replied, in effect, that the jury may not have understood that the defense had no obligation to prove anything—including who really did commit the crime.

I feel certain that is exactly what happened. After all, the sole question the jury sent to the judge was whether or not the prosecution could have forced Ms. Hughes to testify. (I’ve already written that the question shows the jury did not understand basic tenets of the justice system in America.)

However, I have long suspected that pointing an accusing finger at a specific person is a big mistake, and now I understand why that is true.

  • Psychologically, a juror is prepared to give the defendant the benefit of the doubt, but, once another person is specifically named as a possible alternative culprit, the juror affords that new person the same benefit of doubt.

By accusing someone else, the defense unwittingly shifts the burden of proof to itself, no matter how many times the judge may admonish the jury against expecting a defendant to prove innocence.

I can’t recall a single case in which the defense pointed to a specific third party and subsequently prevailed with the jury. For example, O. J. Simpson’s “dream team” pointed to shadowy drug gangs as the more likely killer. They did not name a specific culprit.

But in the Raynella Dossett-Leath case, the defense specifically pointed to a rather unlikely person, the dead man’s daughter. The jury did not buy this—and in fact could not have bought it, since eventually the defense claimed the death was a suicide not homicide.

The rhetoric of a murder defense is crucial. Accusing a specific third party turns a defense into a prosecution.

Furthermore, the concept of reasonable doubt is incompatible with an affirmative, attack defense. How can a defense attorney say in the same breath, “I know who did it,” and “You should doubt the evidence presented in this case”?

In the end, I believe the Hughes jury had to conclude that the prosecution’s case was valid, since Ms. Hughes did not contradict several key pieces of evidence, most importantly that she possessed the murder weapon before and after the crime.

As for me, I don’t believe she is a murderer, but I also don’t know what really happened.

Sometimes the jury gets it wrong

When I heard that the jury in the Carla Hughes trial had asked the judge a question about a fundamental Constitutional right, I knew that at least one juror had never read the U.S. Constitution—and I suspected that the juror had doubts about the prosecution case only because “the prosecution” did not “call” the defendant to the stand. When he or she learned that the prosecution could not call the defendant to the stand, that juror—I suspected—would be inclined to vote for conviction. I was right.

My guess? The sticking point was why no one asked the defendant to explain why she had the apparent murder weapons in her possession at the time of the murder.

I wondered that myself. But I came to the conclusion that there were at least two reasonable, relatively innocent explanations for this undisputed fact:

  1. The defendant was persuaded by her boyfriend to borrow the weapons—then he subsequently stole them from her and used them to commit the crime (or to give to a hired hitman) in order to incriminate Ms. Hughes—and that he then returned them to her home before she knew what had happened, or …
  2. The defendant conspired with her boyfriend to murder the victim by obtaining weapons that would not incriminate him—and that she later regretted her decision when he accused her of the crime.

In either case, I imagine that Ms. Hughes’ attorneys convinced her to keep her mouth shut out of fear she would be charged either as a co-defendant in first-degree murder or as an accessory. If this is true, it appears to me (unfortunately) that her attorneys’ caution actually led to her conviction.

Why? Because this one fact—that she possessed the weapons—is what convicted her.

Regardless of whether or not the boyfriend was involved in the crime with Ms. Hughes, I truly feel this was a case that ought to have resulted in a not-guilty verdict because of reasonable doubt.

It is a very troubling thought that an innocent person could be convicted of murder and be subject to the death penalty. In fact, it is so awful to contemplate that I am convinced it is time to end this barbarous practice. If Ms. Hughes is innocent, her death will be a horror. If she is implicated but not the actual killer, the death penalty is too harsh and justice will not be served. If she is guilty, a life in prison may be too good for her, but it will ensure that society is protected from her and that she will live a life of endless sorrow.

  • Sidebar: I know this will offend many people, and I apologize in advance. But what I don’t understand is why it is legal to have an abortion at 5 months into a pregnancy, but it is illegal to murder a 5-month old fetus. Ms. Hughes was convicted of killing a 5-month old fetus in addition to an adult woman. I think it is particularly grotesque to murder a pregnant woman, but I have a problem executing (killing) a person for murdering a fetus.

An ignorant jury in the Carla Hughes trial

The deliberating jury in the MS murder trial of teacher Carla Hughes sent an appallingly ignorant question out to the judge this morning: “Could the prosecution have called Carla Hughes to the stand?”

Let’s be generous and assume that this question came from only one juror who has never read the U.S. Constitution and Bill of Rights.

OK, so how did such an ignorant juror end up on this jury?

It seems to me that no juror who thinks a defendant can be compelled to testify against herself can possibly understand the concepts of “reasonable doubt” or “the burden of proof.”

If I were the judge in this case I would be sweating bullets, because this seems to indicate that at least one juror cannot understand the jury instructions he gave them and, so, cannot possibly return a valid verdict.

I wish I understood what constitutes grounds for a mistrial—because I think a question that demonstrates a complete ignorance of a defendant’s rights ought to be a cause for a judge to instantly declare a mistrial.

Carla Hughes Trial—the gun and the knife

Jurors are now deliberating in the murder trial of MS teacher, Carla Hughes. For once I’m not going to predict their verdict, because there is evidence in the case that “could cut either way”—a missing knife.

The accused, Carla Hughes, admits to having borrowed both a gun and a knife from a relative just days before her boyfriend’s pregnant fiancée was shot and stabbed to death. (She claimed she needed them for self-defense.) After the crime, she returned only the gun to the relative—and it was empty of bullets at that.

But my question is: Why a knife?

Actually, I have several questions about the knife:

  1. Does a woman ever seek to defend herself with a knife, especially when she also has access to a gun?
  2. Why borrow a knife in the first place? You don’t need a license to own a knife, and you can buy them in grocery stores.
  3. Assuming she borrowed the weapons in order to commit murder with them, why would she want a knife in addition to a gun?
  4. Who takes a knife in one hand and a gun in the other to murder someone? Especially to murder an unarmed, pregnant woman? (The knife was not used to cut open the victim’s womb.)
  5. Who breaks into a building—loudly, by kicking in a door—in broad daylight and holding a knife and a gun? Couldn’t she have knocked on the door politely and then pulled out the gun and the knife once inside the house?
  6. What happened to the knife? Apparently it was not retrieved from the crime scene. And if the killer took both weapons away from the scene, why didn’t he or she throw them both away? Why would Ms. Hughes have saved the gun in order to return it to her relative, but not the knife? A gun is generally easier to link to bullets than a knife is to knife wounds. (And don’t say killers are stupid and they don’t think about such issues. Ms. Hughes is highly educated and smart.)

I have many, many questions about this case, which neither the prosecution nor defense even attempted to answer. Since the prosecution is burdened with proof, though, I feel they ought to have had an answer to every question.

Carla Hughes murder trial—where is the cell-phone expert witness?

In the Mississippi murder trial of Carla Hughes, both the prosecution and the defense have claimed that cell phone records prove that key figures in the crime were in certain locations at the time of the crime. But as far as I know, the prosecution put no cell-phone-records expert witness on the stand. And I’ve heard nothing so far about potential defense expert witnesses.

Given the importance of cell-phone records in other recent murder trials, the absence of such records in this case strikes me as an instance of “the dog that didn’t bark.” If I were a juror, this absence of evidence would speak volumes. The problem for both sides, of course, is that the message the jurors receive is completely out of the lawyers’ control unless they present the cell-phone records to them.

I can’t help but wonder if both Ms. Hughes and the highly suspicious Mr. Pittman were speaking to each other at the time of the crime. It would explain why neither side wants to let the jury see the records of the numbers called.