Murder in Indian Country—Indian Country Justice (Part IV)

When I think of murder mysteries about American Indians, I think of Tony Hillerman’s novels, set on a New Mexico Navaho reservation. New Mexico is not one of the states that assumed partial legal jurisdiction over reservations within its borders under a 1953 federal law known as Public Law 280.

Because New Mexico has no legal jurisdiction over the Navahos, Hillerman was able to make his protagonists tribal cops. In other states, reservations usually must rely on state and county law enforcement and courts—but not always successfully.

In a few states, reservations provide their own criminal law enforcement and criminal courts unless the federal government steps in, which apparently it tends to do, especially when women, children, and other especially vulnerable people are involved (family court issues), when a capital crime has been committed, or when a federal law has been violated.

Sidebar: Civil law issues are particularly murky on reservations. For the most part, civil issues within the tribes are handled by tribal courts, but, when a non-Indian is involved, the jurisdiction is often disputed. I suspect this is one of the reasons so many tribal leaders these days are lawyers (more later).

What Goes Wrong on Reservations?

In 2004 the Bureau of Justice Statistics published a study of justice in Indian Country (with statistics for the years from 1999 to 2002). It claims that Indians are victims of crime far more often than any other group. It also notes that about 15% of the inmates in federal prisons are Indians, even though Indians comprise only about 1% of the nation’s population.

Sidebar: A few days ago I stumbled across a pre-publication report that claimed these statistics were grossly wrong, primarily because many Indians do not self-identify as such. The pdf of the report has since disappeared from the web (or I can’t find it, in any case). So, while I suspect this is true, I have only the BOJS study to refer to now.

The upshot of the BOJS report is that reservations have inadequate funding for law enforcement. It urges further research to determine how the government can improve the situation.

Much as I like data collection and statistics, I am extremely skeptical of any such venture, because I don’t believe the federal government has any idea what Indian Country is or how many tribes there are or how many people are really American Indians “entitled to federal benefits.” If they did, they would post a list of reservations, tribes, and their populations on the Bureau of Indian Affairs website.

The most thorough information I have found is at WikiPedia: http://en.wikipedia.org/wiki/List_of_Indian_reservations_in_the_United_States#Reservations

But I defy you to read that article and tell me how many Indian reservations there are on federal lands versus reservations on state lands or how many tribes there are.

And if you read the BOJS study (above) I defy you to tell me which reservations are under federal criminal jurisdiction, which are under state criminal jurisdiction, or which are entirely under tribal criminal jurisdiction.

Juvenile Justice on Reservations

One statistic is particularly troubling and confusing—juvenile justice and detention: “Table 34. Tribal juvenile jail capacity, number in custody,offense seriousness, and staff, by State and tribe, 2002.” According to the study, in 2002 almost 200 juveniles were being held in a tribal detention center,  of which about 10% were arrested for serious crimes. There are 70 jails in Indian Country managed by tribes and the Bureau of Indian Affairs, of which 10 are designated as “juvenile detention facilities.”

By this the BOJS means, I assume, that the jails are in no way under state jurisdiction. As a result, Indian juveniles are not subject (apparently) to prosecution as adults in state courts. So, a juvenile who commits murder or violent rape must be released into the general reservation population at age 18 or 21, I suppose. Since recidivism rates are high on reservations, most such individuals are likely to offend again. This could be one of the many things that go wrong on reservations.

Fundamentally, the treatment of school-age American Indians is what really goes wrong. Opportunities for a high-quality education are severely limited on reservations. According to the Manhattan Institute, only 54% of American Indians graduate from high school and only 38% are college ready at the time.

Sidebar: I question the 54% high-school graduation rate. Elsewhere I have read that only 50% of all students graduate from high school. The Manhattan Institute in the same article claims that 70% of “all high school students” graduate. So I suspect the American Indian statistic also refers to “all American Indian high school students” who graduate, which means there is a percentage of American Indian children who drop out before they even reach high school.

Just as troubling is the existence of “tribal colleges.” For decades other minority colleges have solicited other races. For example, you will be hard-pressed to find a college that identifies itself as a “black college.” Instead, they call themselves “historically black.” Any college that touts itself as serving only a single community has no place in higher education. A good college certainly may be founded to promote research into and learning about a specific culture or creed, but a ghetto focus does not empower learners.

That’s why it’s a miracle that in 2002 less than 200 American Indian juveniles were in jail. Half the juveniles on reservations are dropouts. 25% or so of reservation high-school graduates are not ready for college, which probably means many reservation high-school graduates can’t get into any college other than a tribal college.

Which brings me back to Tony Hillerman. . .

Hillerman did not identify himself as an American Indian, although in photographs he looks as if he must have Indian ancestors. His biography parallels my father’s: both were born about the same time in Oklahoma, both graduated from high school there, went to the University of Oklahoma, joined the army and fought in WW II, and then returned to graduate from college. My father, too, did not identify himself as Indian, even though he knew his mother was Cherokee/Choctaw.

Both men escaped Indian Country through education.

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Indian Country Justice (Part III)—Public Law 280

American Indians are not ordinary American citizens who enjoy the same protections available to their fellow citizens within the justice system. Legally (it seems to this non-lawyer) American Indians are a defeated, enemy nation whose citizens are now held captive—just like the “detainees” at Gitmo.



Sidebar: No, I don’t want to get into a discussion of the Gitmo mess, except to say that the federal government has made a mess there, just the way they have made a mess of Indian Country. And now it sounds as if they’re going move the mess into my backyard in Illinois.


The history of the war between the United States and the Indians is legendary. In the end, the U. S. won the war and signed a series of treaties with the defeated enemies, that is, the tribes. Today, the reservations and residents of mythical “Indian Country” are governed by the terms of these treaties; and this very fact proves the Indians’ status as a defeated nation. (Just look up the definition of a treaty at a website, such as The Free Dictionary.)


The fact that American Indians were not “treated” as citizens for most of their relationship with the U. S. government is proven by the fact that they were not given the right to vote until after World War I, even though the 15th Amendment in 1869 gave the vote to every other adult male citizen of the United States, regardless of race or ethnicity: in 1924, Indians received the right to vote through an act of Congress, “The Citizenship Act,” not by an amendment to the Constitution.


Why didn’t the 15th Amendment apply to American Indians? Because they were not “citizens of the United States;” they were citizens of Indian Country.


What is Indian Country?


Indian Country is a legal fiction of the federal government: it includes reservations, non-Indian property inside a reservation, Indian “allotments” held in trust by the federal government both on and off the reservations, and associated Indian “communities.”


Of course, you have to ask what the definition of an “Indian tribe” is. As www.duhaime.org’s Legal Dictionary says, “there is no single definition of what an ‘Indian’ tribe is in the United States.” As it now stands, the federal government officially recognizes a list of so-called tribes. Membership in the tribes is determined by a governing tribal organization, which can include and exclude anyone they like or dislike.


Indian Country is federal land—for the most part. That means the federal government has complete jurisdiction over them; the states, counties, and town governments have no jurisdiction (sort of). However, in 1953 the federal government caved in to state pressures and granted the states some jurisdiction over Indian Country through a law known as Public Law 280.


Public Law 280 0f 1953


According to Jerry Gardner and Ada Pecos Melton, Congress passed Public Law 280 because California claimed that the reservations within the state were lawless and a danger to non-Indian neighbors. Of course, what California and several other states really resented was that reservations were not subject to any state laws and did not pay taxes.


Under Public Law 280 five states (and later Alaska when it became a state) were granted complete jurisdiction over reservations within their borders. Several other states were granted the option of complete or partial jurisdiction. (Utah was one of these optional states; its decision to take jurisdiction over reservations there had at least one good effect, namely, Utah had to give Indians the right to vote in state elections.)


However, not every state has any reservations within their borders—but almost all have some Indian Country. For example, Oklahoma (the former “Indian Territory”) has only one reservation, as far as I can tell (it’s difficult to find a definitive list of reservations by state), but Oklahoma is not covered by Public Law 280. The Cherokee Nation (headquartered in Tahlequah, OK) has no reservations anywhere.


As Gardner and Melton point out, this is a chaotic situation, and chaos does not promote justice anywhere, and certainly not in a mythical non-place like Indian Country.


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A strange comment on school shootings—maybe it’s from a ghost

Recently this blog has been haunted by some “comments” that are possibly spam but possibly simply illiterate conspiracy theorists. My only recourse has been to shut off comments on current posts—but I can’t shut off comments on all past posts with the “flip of a switch.” As a result, these pesky comments keep coming.

In hopes that I can forestall future comments on the topic of school shootings I caved in to a comment request to research them, and now I will write briefly about this topic. I hope this will exorcise these comment demons.

Conspiracy Theory

In the late 1990s, when the frequency of school-shooting rampages was at its peak, my over-heated fiction-writer’s imagination conceived of a conspiracy theory. I was watching a news video of the aftermath of one of these crimes: squad cars and ambulances were amassed in front of a school; parents crowded around; and then a man walked past the camera and seemed to say something to the lens. The microphone did not pick up his words, but it looked to me as if he said, “It’s going to happen again.”

And of course it did.

The TruTV website has an interesting article on the topic: “School Killers,” by Katherine Ramsland. It discusses not only the history of these nightmarish crimes but also several psychologists’ theories of what causes violence in children. Please read it.

A couple of offhand comments in Ramsland’s article may lend credence to the conspiracy theories. There is a hint, for example, that the Columbine shooters were part of a wider “network” of some sort. Elsewhere in the article, Ramsland notes that one self-styled shooter wannabe claimed to be “active in the right-wing.” Several school shootings had Nazi overtones. Most school shooters were assisted by parents, other adults, or friends in obtaining lethal weapons.

Given these “facts,” it isn’t all that far-fetched to make the leap from assigning the blame to failures of society, all the way to believing in a conspiracy theory.

Organized Rings of Child Exploitation

The murder of JonBenet Ramsey is thought by some to have been inspired by or instigated by child pornographers: when John Mark Karr was under suspicion, I heard a private detective say on the air that he was on the trail of a child pornography ring. Madeline Mccann’s parents are convinced their daughter was kidnapped by pedophiles. And, sadly, these are not baseless conspiracy theories. The FBI devotes a considerable amount of its resources to preventing and solving crimes against children by organized criminal gangs.

With regard to school shooters, one of the first suspicions of both law enforcement and psychologists is that the shooters were themselves victimized by adults at some point in their lives, probably by their parents. It’s difficult for most people to give the parents of shooters the benefit of the doubt, if for no other reason than we all hold parents responsible for properly parenting their children. And  when the parents are somehow well-connected politically or are wealthy or are professionals, such as doctors or lawyers, we are prone to feel that the police exonerate them too readily and possibly corruptly.

So, of course it is possible that powerful conspiracies are behind some or all of the school shootings. But the best research to date indicates that childhood violence is the end result of years of anti-social behavior that every adult ignored. It is also true that child-exploitation rings do exist—and they always seem to be able to get away with murder. When is the last time you heard of a conspiracy to exploit children being thwarted?

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Indian Country Justice (Part II)

Something happened to me yesterday that reminded me once again that not only is life unfair (as Pres. Kennedy said) but life is also unjust. Justice is something people have to bestow on one another.

The “justice system” does not bestow justice. The government does not bestow justice.

The not-guilty verdict in the murder trial of Sharron Chason proves that only people can bestow justice—and also that people are often less just than random chance.

Ms. Chason was hounded into court by vindictive relatives and friends of her husband. Had her circle of friends and family been larger than her husband’s or more powerful, I have no doubt that the medical examiner’s office would never have been called into the hospital while her husband was still alive.

I wonder how many people have relatives and in-laws who are willing to go to such lengths to hurt them.

I had a grandmother who did everything but have my father thrown in jail for marrying her daughter. My maternal grandmother was a racist. My paternal grandmother probably was, too, but she had the misfortune of being Cherokee/Choctaw.

It’s a mistake to think that only whites can be racists or can be unjust. The Cherokees have a long history of racism (I don’t know that much about other tribes, so I can’t say whether this is true of them). Though the Cherokees make much of the sad Trail of Tears episode, the fact is that they are as much to blame as Andrew Jackson. Corrupt tribal chiefs sold them out in expectation of receiving vast tracts of land (Indian Territory). What’s more, the Cherokees dragged along with them on the march from Georgia to the Mississippi their own black slaves.

That’s right. The Cherokees owned slaves in Indian Territory.

And if you look at photographs of those early Cherokee settlers, you will probably find as many blue eyes among them as brown.

It’s no accident that now there are no Cherokee reservations in Oklahoma—the end of the Trail of Tears. The only Cherokee reservations now are in the Carolinas (where a few Cherokees were left behind.) The Cherokees of Indian Territory understood well the importance of private property. They owned the land where they lived. They owned slaves to work the land.

The other tribes were duped into giving up the most fundamental right granted in the Constitution: the right to private property. Private property is the source of privacy and liberty. The other tribes are, as a consequence, now confined to reservations (federal land, not private property).

Where’s the justice in Indian Country? (Part I)

What is “this country?” Not “Indian Country,” but the country in which we live. How is it defined?

Is “this country” the fifty states? Does “this country” include the territories of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, the Northern Marianas, and the “Minor Outlying Islands”? (Honestly, has anyone who never served in the Navy ever heard of some of these places?)

I suppose most of us would include all the land inside the borders of any one of the fifty states as “this country.” And I also suppose most of us assume that the Constitution and Bill of Rights protect residents who live in this country.

Well, it turns out that the law of the land does not apply to everyone in “this country.” The Constitution and Bill of Rights only apply to American Indians if and when the federal government declares that they do.

The federal lands of the national parks—which are not subject to state laws—are “this country,” even though they’re outside the states’ jurisdiction. And the federal lands of the Indian reservations, which also lay within the borders of the states, are also “this country,” but they often are not governed by state law either.

Sidebar: A “reservation” is not a “territory,” like Puerto Rico. The residents of territories are entitled to send delegates to the political parties’ conventions. The residents of reservations are not. Instead, they participate in federal elections through the states’ political parties—even though in some instances the reservations are not otherwise governed by state law.

But not all of “Indian Country” lies within the borders of any state. Indian Country isn’t even a physical location, a place, as most of us think of places. Nor is it a nation. It’s just a “country,” and it is governed almost entirely by federal, not state, law.

Justice for American Indians

Sidebar: Don’t call me a “native American.” The word “native” sounds like a naked savage to me. I’m very proud of my Cherokee/Choctaw heritage—what little I have been able to learn about it because my Cherokee/Choctaw grandmother died denying she was anything but lily white. One thing she and my father were very proud of, though, was that the Cherokee/Choctaw are called “civilized tribes.” Go figure.

The laws of this country governing reservations, Indian tribes, and citizens with Indian ancestors are arcane. In brief, the way I see it, American Indians don’t receive equal justice under the law.

Now the federal government has agreed to settle a long-standing class-action lawsuit against an agency of the Department of the Interior, a suit known as Corbell v Salazar. The “class” suing the government is the class of so-called “native Americans.” Not all of these plaintiffs live on reservations. Many of them, if not most, are—like me—Melting Pot Americans who will not benefit from the settlement.

The Corbell lawsuit began over a decade ago as an attempt to expose the corrupt Bureau of Indian Affairs’ financial mismanagement of Indian reservations on federal lands. And I am sure the tribes on reservations are owed the billions of dollars the government now proposes to pay them. It seems like justice, I suppose. Or maybe like charity.

Or does it? Isn’t this just a BandAid that further strains the American taxpayer (including American Indian taxpayers) at a time we can ill afford it?

Will the government change the way it “manages” Indian Country from now on? No. The whole reservation system is broken.

Sidebar: The same people who have decided to give these paltry “reparations” to American Indians for past cruelty and crimes also have decided not to give reparations to African American descendants of slaves. I don’t understand this. Is it because we now have an African-American president who is not the descendant of slaves?

The Indian Vote?  

Do you know when “native Americans” got the vote? I bet you think they were given the right to vote by the 1869 15th Amendment, which gave emancipated slaves the vote. Well, you are wrong. Native Americans did not even get the right to vote when women of all other races did in 1920. No, American Indians did not have the right to vote in federal elections until 1924—and not in every state’s elections until (in some cases) 1956.

That’s why so many American Indians and their descendants do not “self-identify” to the Census Bureau. If my grandmother had admitted she was Cherokee/Choctaw in 1920, she would not have been eligible to vote in Oklahoma (former “Indian Territory”). And when my father was born if his birth certificate had listed him as anything but Caucasian, he would not have been entitled to the right to vote when he reached his majority. If my grandparents had chosen to identify my father as non-white on his birth certificate, and if I had been born in Utah instead of Michigan, I suppose I might not have been identified as white, either.

The federal government’s token payment to mythical “Indian country” is absurd. There is no amount of money on earth that can solve the problems of American Indians without a complete rethinking of the whole concept of a “reservation” and “Indian country.”

Where do you think this money is going to go? What makes you think the politicians at the Department of the Interior now know how to spend this money? Will the money be used to build first-class schools on the reservations? Or will the money end up expanding gambling on the reservations?

Chalk Ghost—Co-Winner of 2009 TextNovel Grand Prize

I’m in the throes of finalizing my manuscript of a paranormal mystery novel, Chalk Ghost. The protagonist, Lily-Rose Whitehorse, is an American Indian college student studying forensic accounting, because she knows how badly the federal government has mismanaged tribal finances and defrauded the reservations.

For this reason I am currently studying the history of the reservation system and the laws governing the reservations. The latest twist in this sad history is the federal government’s settlement of Corbell v. Etc. (The defendant has changed with each new administration.)

In my not-so-humble opinion, this settlement is demeaning. “Native Americans” are not an endangered species being protected on federal lands. They are being confined and deprived of the rights of citizenship.

Justice has yet to be done.

When does the jury get to talk?

In the Tennessee trial of Sharron Chason the jury was able to send written questions to the judge, but like all juries they only got to speak when they delivered their verdict: not guilty.

Serving on a jury is incredibly frustrating. The only time you get to talk in the courtroom is during voir dire—and then it’s only to answer personal questions you don’t want to answer.

Few states permit jurors to ask questions of witnesses (as Tennessee does), so a juror usually has to sit there biting her tongue when the lawyers don’t ask the obvious questions.

You sit for hours and hours in silence listening to a long string of inarticulate, ill-informed, prevaricating,  angry, biased, and sometimes just plain stupid witnesses. Then the lawyers try to tell you what to think. And finally the judge reads you a long, legalistic set of instructions and a counterintuitive verdict form.

The first time you get to talk about the trial—about what you think and how you feel—is when you go into deliberations. Unfortunately, by then you probably would rather not talk to the eleven strangers locked in the room with you.

The only time the jury really gets to speak is through its verdict. But a verdict isn’t a nuanced message: a verdict generally amounts to little more than “guilty” or “not guilty.” And that’s why jury duty is frustrating.

Sharron Chason’s attorney, Dan Warlick, said something in his closing argument that perfectly expressed the way I felt as a juror: he said the case had been “dumped in [their] laps.” I thought it was particularly apt in this trial, because the State of Tennessee’s many investigators had neither been able to say definitively that Mr. Chason was a homicide victim nor even definitively what drug it was that resulted in his death.

This is one reason, I believe, that so many people want to avoid jury duty. We all know that a criminal trial only takes place when the system fails. The police have failed to prevent a crime. The prosecution has failed to negotiate an equitable plea agreement. The defendants—likely—believe they can wiggle out of it or feel (rightly or wrongly) they haven’t done anything to deserve punishment.

Only when the justice system fails in every way does a jury have to play god. That’s an onerous job for most of us.

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Sharron Chason—Guilty of improper bedside manner

Yesterday in the TN murder trial of nurse Sharron Chason, a nurse tending to the comatose Mr. Chason testified that the defendant told him (the nurse) not to give out information about the patient’s condition to visitors. A friend of the patient also testified that Mrs. Chason was not crying when he visited the hospital room. Both were witnesses for the prosecution—supposedly damning testimony.

Having stood by the bedside of a dying relative—without crying—and having tried to stop hospital workers from giving out information about the patient to non-family visitors, I must side with Mrs. Chason, even if she is responsible for her husband’s death (which has not yet been proven).

First, a loving person does not cry during such a crisis. Your tears come much later.

Second, if this sad, stressful situation ever happens to you, I think you may be shocked by the way hospital workers—especially nurses—behave.

Sick Room Visits from Strangers and Busybodies

There is no such thing as hospital security.

Recently, much has been made of the right of spouses to attend the bedside of spouses as opposed to the supposed prohibition against domestic partners attending the bedside. But hospitals let anyone and everyone into a sick room, even into intensive care. At most, a visitor must ring a bell or knock on the door.

In many instances anyone can simply walk into a hospital off the street and into any part of a hospital they choose.

Sidebar: It’s a wonder more babies aren’t stolen out of the nursery. In fact, lax hospital security is ripe for fiction: I’ve often thought about writing a murder mystery in which a killer simply walks into a hospital room and commits a murder in some clever way—like administering unnecessary diabetes medicine to an already comatose person, because she’s angry that he inherited the family fortune.

Once a visitor is at the bedside of a dying person, she is continually addressed by nurses and orderlies who express their opinions of the patient’s condition, treatment, and prognosis. The witness-nurse in the Chason trial, for example, who claimed nurses are only permitted to say the obvious to a visitor may have been telling the truth about the policy, but not about the practice.

In my experience, I tried to stop nurses from telling visitors false information, which those people then took outside the hospital and repeated to other people—many of whom eventually believed my dying relative was on the road to recovery.

The Jury

I’m struck by the essential unfairness of this testimony against Ms. Chason. The nurse who testified against her was clearly trying to make himself look good and knew no one could contradict him. The visiting friend also may have had cause to want to deflect suspicion from himself that from time to time he offered drugs to the deceased.

How will the jury view this? Must jurors have had experiences similar to mine to find this testimony as meaningless and mean-spirited as I do?

I guess they don’t like nurses in Tennessee—Chason Trial

Yesterday following a brief voir dire, a TN jury began hearing the trial of Sharron Chason, a nurse accused of murdering her husband (TruTV’s In Session is covering the trial live). It calls to mind the TN trial of Raynella Dossett-Leath, another nurse accused of murdering her husband.

Sidebar: I have no idea how many nurses each year are charged with murdering their husbands. The only reason I happen to know of Raynella Dossett-Leath is that her trial was also covered live on TruTV and Tennessee is among the few states that permits video cameras in the court. For all I know, nurses are suspicious characters everywhere.

In the Dossett-Leath trial, a nurse was accused of trying to poison her husband, and then, when he refused to die, of shooting him and staging his suicide. Ms. Chason, though, is accused of murdering her husband by unknown means. Not only does the state not know what killed Mr. Chason, but the medical examiner did not even determine the death was a homicide: the deceased’s cause and means of death were “undetermined.” (In many counties, I suspect this would be a coroner’s jury, not a murder jury.)

The jury in the Chason trial is being asked to believe the defendant killed her obese husband (who also had a faulty heart) because he snored.

Let’s face it, this trial is what used to be called “a witch hunt.” It’s the kind of murder trial that can only be staged to vilify an unlikeable woman when her well-liked husband dies suddenly. The same was true of Raynella Dossett-Leath. Ms. Dossett-Leath, though, was unlucky enough to face TN medical examiner Darinka Mileusnic-Polchan, who has the uncanny ability to tell not only the trajectory of a bullet, but also to intuit the sequence in which bullets were fired and whether or not it was possible that the shooter “intended” to kill a person. Thankfully for Ms. Chason, no bullets are involved in this supposed murder.

Another similarity between the two cases is the family-feud aspect. In both trials, the victim’s family appears to have been feuding with the defendant for many years. I don’t know if this is a Southern sort of thing. My Southern family certainly has always had a contentious relationship with in-laws. But even if it isn’t common, I hope the Chason jury will take in-law witnesses with a grain of salt.

Women are rarely charged with murder. But the motive usually involves a love triangle or money. It’s a rare female murderer indeed whose motive is snoring.

Why shouldn’t Elaine Clermont do jail time? Her heroes did.

In his closing arguments in the trial of Nevada v Clermont, defense attorney Mace Yampolsky said something that struck TruTV legal commentators as masterful, but which struck a nerve in me, a former juror.

He asked the jurors to imagine themselves at a cocktail party in a year or so where they discuss the fact that they served on a jury in a kidnapping case. He intended to contrast the common-sense understanding of how heinous a crime kidnapping is with what his client did.

Instead, I felt he highlighted the impropriety of his client’s behavior. No juror in a trial involving the exploitation of a child wants to be told to imagine themselves at a cocktail party—even jurors in Las Vegas.

Furthermore, no juror wants to imagine having to talk about the experience in casual conversation. Being a juror is a stressful experience. A conscientious juror has no desire to gossip about the experience or to bask in the lurid glow of a trial’s notoriety. No matter what the verdict, someone will always fault the jury.

Mr. Yampolsky’s rhetoric tells me he has no idea how it feels to be a juror, especially a juror who has never before been inside a criminal courthouse.

However, I blame defendant Elaine Clermont for inspiring her lawyer’s inappropriate rhetoric. I suspect she’s the one who wanted to bask in a lurid glow of notoriety. Her intent from the get-go (as the prosecution pointed out in its closing) was notoriety. In her bizarre blog, Clermont likens herself to Martin Luther King and styles herself “an activist.”

The problem with Clermont’s rhetoric is that she doesn’t understand what civil disobedience is: she needs to read Thoreau. You have to be willing to take your punishment to make your point. It isn’t ethical to exploit a child to make a point. It isn’t ethical to use the justice system as a soapbox. Stand on your soapbox and then go to jail to make your point.

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Elaine Clermont—Martyr Mom or Seriously Misguided?

TruTV In Session’s broadcast of the verdict in the case of Nevada v Clermont for kidnapping provided excellent analysis of what went wrong before and during the trial. Among the most interesting facts the jury did not know during deliberations (anchor Rikki Klieman revealed) was that the prosecution offered Clermont a plea deal, which she refused.

Clermont apparently maintains to this day that she did nothing wrong; instead it was the school district that was at fault and was seriously endangering children by its lax security system. She was only trying to expose the risks by notifying the media before she returned a lost little boy to his school.

The more I hear about the situation that resulted in Clermont’s arrest for kidnapping the child, the more I’m convinced she was grossly overcharged. But it’s also obvious that what she did was wrong: no one other than the boy’s mother had a right to restrain him even an instant (let alone 2 hours) for any reason.

The Jury Spoke

The jury found Clermont guilty of conspiracy to commit kidnapping and of false imprisonment.

The first of these verdicts (possibly) resulted from the testimony of Clermont’s supposed conspirator, another school district mother named Laurinda Drake, who was previously acquitted of conspiracy. However, the jury apparently was not told about the acquittal. (This is the sort of withholding of information from a jury that I cannot understand.)

The second verdict is completely understandable (by someone who once was a juror in a situation somewhat like the one the Clermont jury faced). The jury could not find her guilty of kidnapping, because she did not commit kidnapping. Everyone with common sense can see that.

But she did restrain and use someone else’s child in the cause of furthering her point of view—she used a child for political purposes. Given a choice of acquitting her (and committing jury nullification) or convicting her of a lesser charge, that’s what they did.

Jury Rhetoric

I often write about the rhetoric lawyers use in front of a jury, but there’s also a rhetoric that jurors use to communicate with the court—and I suspect few lawyers or judges ever think about this.

In most cases, the only rhetoric a jury has available is the verdict. When lawyers don’t understand a verdict, they call it “jury nullification.” But it rarely is a nullification of the law: it is only a nullification of an inappropriate charge or indictment. The O. J. Simpson murder verdict, for example, was the jury’s way of saying they thought the cops were racist and had targeted Simpson unfairly.

In “my” case, we the jury found the defendant not guilty of kidnapping (but guilty of aggravated assault), because he did not kidnap his victim. Afterwards, the judge came into the deliberation room to find out how we could have been so stupid. One of my fellow jurors asked her, “Why didn’t you just offer him a plea deal?” She replied, “We did, but he wouldn’t take it. So kidnapping was the only way I could sentence him to thirty years.”

Is that justice? No.

Here’s what both juries were telling both judges and all the lawyers: don’t charge our fellow citizens with serious crimes unless they committed those crimes, and don’t let a criminal go free on a technicality, namely, the legalese of a criminal statute.

If the jury had found Clermont not guilty of all crimes they would have been letting her go on a technicality, namely, that the literal law of kidnapping was not committed.

Both the prosecution and the defense miscalculated. The defense made a big mistake by not accepting a plea deal—it looks like Clermont wanted to use the jury for her political purposes, too. The prosecution was absolutely wrong to over-charge her in the first place—they could have charged her with a form of child endangerment, for example, and still have achieved their objectives.

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