Danger of Bad Writing

The problem with writing is: if you write badly, you are sure to be misunderstood; even if you write well, you can’t be sure anyone will understand you either

I’m guilty of some very bad writing, recently.

In the Dossett-Leath case, I expressed opinions about individuals without knowing all the facts. I used them as characters in a fiction that has rattled around in my mind for a long time. So, I want to apologize to everyone. Please understand me: I do not think anyone murdered Mr. Leath; I feel—based on what little I know—that he committed suicide.

I also feel there are strong parallels—and sharp contrasts—with another recent Tennessee case: that of Sharron Chason. In both instances, wives were charged with murdering their husbands after non-prescribed drugs were found in their husbands’ blood. Both women were nurses—so the implication was that they had access to such drugs.

In both cases, friends and family members of the deceased testified against the wives: their testimony was largely innuendo and impressions of the defendants’ guilty behavior. In the Dossett-Leath trial, the widow’s desire for cremation was used against her; in the Chason trial, the widow’s desire to remove life support was used against her.

In my experience, in-laws do not always like each other. In my experience, friends and family are often vitriolic against one another after someone dies. In my experience, survivors often want to spare their loved ones’ bodies further ravages by choosing cremation and choosing to stop life-support. In my experience, after a loved one dies, you act angry, secretive, combative, nasty. It isn’t evidence of murder.

In my experience, children of a deceased parent want to inherit every last scrap and don’t think it’s right that anyone else should share in the inheritance. This is especially true when the parent was divorced and remarried.

There is a big difference in the Dossett-Leath and Chason cases, though: the death certificates. In the Chason case the ME found the cause of death to be a drug reaction or overdose but the manner of death to be “undetermined.” He was honest enough to say that while the drug’s presence was suspicious (because it was not prescribed) the manner of death could have been accidental, suicide, or homicide.

In the Dossett-Leath case, the ME declared the manner of death to be homicide without waiting to gather all the facts and by ignoring other alternatives. believe that the ME’s pronouncement of homicide initiated an avalanche: everyone else involved started pointing fingers at each other, especially the widow and her stepdaughter. Thus began an angry inheritance dispute, which ended in two indictments.

I do not have any independent evidence to support my beliefs. All I’ve learned comes from the Internet and TV, and I may have misread or misheard everything.

I lay no blame with any private parties in either of these cases—the Chason and the Dossett-Leath cases.

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But I do think they illustrate what’s wrong with electing prosecutors. The justice system includes not only the police and courts, it includes the states’ attorneys. Americans ought to be able to expect unbiased prosecutions. Crime is crime, no matter which political party is in power in a county or state. In both cases, I believe we saw the effects of politicizing prosecutors and medical examiners (and why coroners are a very bad idea).

Politics of Prosecution–Apologies to the Innocents

BIG, BIG DISCLAIMER: I have not conducted an independent investigation
into the Dossett-Leath trial. I have no qualifications to do any such
thing. I am a mystery writer. I follow trials as research for my
fiction. I have said before that this case is complex enough to make a
great mystery plot.

MOST IMPORTANTLY, I AM NOT SUGGESTING THAT ANYONE
INVOLVED INTENTIONALLY “FRAMED” MS. DOSSETT-LEATH.

What I suggested
in an earlier article is my opinion (unfounded) that some people may
have been strongly biased against Ms. Dosset-Leath for personal
reasons. These people ought to have recused themselves from any
involvement in the case, long before she was indicted, let alone
convicted.

In addition, I am strongly opposed to the election of
prosecutors
for this reason. I am also strongly opposed to the way in
which judges are chosen.

A few days ago I posted on police misconduct,
and most people who read my post seemed to agree with me. My point here
is that the state’s attorney function in every state–not only
TN–needs to be de-politicized ASAP for exactly the same reasons that
police thuggery can’t be condoned. Many prosecutors use the role as a
stepping stone to statewide office; that causes them (consciously or unconsciously) to trumpet high-profile prosecutions.

Finally,
I do not believe that any family member in this case was involved in
homicide
–including Ms. Dossett-Leath; I believe this was a tragic
suicide
, which family members can’t bring themselves to accept.

And I
know from sad personal experience, that where there’s a will, there’s
someone who’s unhappy with the way the estate is distributed–every
time there’s a death and a will. People are greedy, we all are, we
can’t help it, and most of an estate is also valuable to descendants
for non-financial reasons. Everybody wants granny’s engagement ring, even its just glass.

Finally, I also have personal experience with in-law disputes. I see in this case a great deal of such a dispute. The deceased’s daughter, in my opinion, was behaving the way I have seen children of divorce in my family behave toward second wives. It’s probably natural and probably justified. All I wanted to say about this daughter was that her sorrow and anger led her, in my opinion, to pursue the prosecution of her stepmother. The authorities were eager to take her side, and that isn’t fair. The authorities were not being fair.

I apologize to everyone involved in this tragedy, and I’m going to take down the offending posts immediately.

Scientific Methods of Medical Examiners–Part 2

Scientific evidence is rarely presented well in court. More often, highly technical data is presented in a “dumbed-down” form that lawyers seem to think jurors require. But the biggest problem is that expert witnesses for the prosecution are presumed competent and trustworthy.

Unfortunately, scientists like the rest of us, sometimes make mistakes, are careless, have biases, or are just plain incompetent. Medical examiners are among the expert witnesses most prone to these failings, in my non-lawyer, non expert opinion.

A Medical Examiner Who Works Backwards

The ME who conducted the autopsies in three televised trials exemplifies for me the problems of scientific presentations in court. I think of her as the Serial ME—one homicide after another. She never lets a gunshot death pass for anything but first-degree murder.

The Serial ME turns up on CNN’s In Session frequently, partly because she works in Tennessee, which is among the few states to permit cameras in courtrooms, and partly because she’s photogenic. Unfortunately, she doesn’t “put on a good show,” in my opinion. And she would not appear on TV if it weren’t for the frequency with which she deduces first-degree murder in gunshot deaths.

Trial of John Collett

In 2009 John Collett was charged with murder for shooting an angry, gun-toting trespasser who threatened his parents and him as they stood on their porch. The Serial ME declared the death to be a homicide and testified dramatically with the use of a mannequin, dowels, and the four-wheeler the deceased had driven onto Mr. Collett’s property.

Death by multiple gunshot wounds, of course, must always be investigated as a possible homicide. The circumstances in the Collett case clearly indicated it was not a suicide, and since a hominid must usually pull the trigger on a gun in order for a bullet to emerge from the barrel and find its way into another hominid’s body, a finding of homicide as the manner of death was reasonable.

The medical examiner went beyond this conclusion in her testimony, however. And this is what I find fault with (and apparently the jury did, too, because they found Mr. Collett not guilty). She claimed to prove that the weapon the trespasser waved in Mr. Collett’s face was pointed barrel-to-the-sky when he was shot—based on the trajectory of the bullets in the body. In other words, she testified that she knew for a fact the death was first-degree murder.

In any gunshot death the trajectory of the bullets is an important element of the autopsy evidence. In the Collett trial, the Serial ME demonstrated for the jury the trajectory of several bullets (five, I think) by inserting long dowels into a mannequin that was seated in the four-wheeler (which supposedly wasn’t in itself admitted into evidence). Of course, the path of a bullet through a body is only part of the evidence needed to show the bullet’s trajectory, because a body can be in many positions when the bullet enters it.

Sidebar: How a judge could permit a four-wheeler into a trial court without admitting it into evidence is a mystery to this mystery writer. I would hope that in the event of a conviction the appeals court would have overturned the verdict based on this error alone.

One of the bullets, according to the Serial ME, entered the deceased’s right arm (which was holding a fairly heavy weapon) at the elbow and then passed through the elbow and reentered the upper arm. She also testified there was no way this trajectory could have occurred unless the arm was raised above the head (in other words, she thought she had proved the killing was not in self-defense).

The ME made several assumptions about the shooting, which an autopsy could not possibly suggest, let alone prove.

For one thing, she assumed that one bullet struck the body while the man was still seated on the four-wheeler. That could only follow from an assumption that the bullet was the first one fired. Even if the body was still seated, the trajectory could have resulted from a bullet impacting as the man swung his gun around toward Mr. Collett: imagine holding your arm roughly at waist height with your forearm across your body, bent, and with your elbow at an angle perpendicular to Mr. Collet’s gun barrel.

She also testified that one bullet could only have been fired when the body was already on the ground. Again, she made unjustified assumptions about the order in which all the bullets were fired.

There’s no way an ME can tell the order of most gunshots based solely on the path of the bullets through the body. I suppose some such conclusions can be drawn in some circumstances. If paths cross inside the body or if two bullets follow roughly the same path, it should be possible to conclude that one was fired before the other. But in this case, there were more than two bullets and more than two paths. Blood flow might also prove that a bullet was fired after death, but that was not what happened in this case.

Finally, the Serial ME testified to the rapidity of fire. She concluded that it took a very long time for all the bullets to be fired—implying that each bullet was fired deliberately and with an intent to kill. Yet the gun in question was a semi-automatic pistol that fires rapidly. How could an ME possibly conclude anything about the rapidity of fire in any case?

It was as if the Serial ME wanted to prove the defendant guilty of first degree murder. That’s the prosecution’s job, not an ME’s.

Trial of Eric McLean

Like John Collett, Eric McLean was charged with first-degree murder in Tennessee. His high-school-teacher wife’s teenage lover came onto his property, and Mr. McLean threatened him with a gun (a rifle or shotgun of some sort). In the trial, Mr. McLean claimed he did not intend to pull the trigger; the gun discharged accidentally.

The Serial ME testified there was no way the gun could have discharged accidentally. It had to be intentional. That’s the prosecution’s job, not the ME’s. And, like the Collett jury, the McLean jury did not buy the ME’s claims.

You might wonder how an ME could testify about weapons and ballistics. I suppose she could have based her conclusion on the average muscle strength of the human finger or something.

You might wonder how an ME could infer the intention in the mind of someone who held a gun. I suppose she could have read the defendant’s mind.

Sidebar: I don’t remember all the details of the ME’s testimony, but I think she may have staged a demonstration with the gun in the courtroom in this trial, too.

Trial of Raynella Dossett-Leath

In 2009 Raynella Dossett-Leath was tried for the murder of her husband. The Serial ME testified that the deceased could not have committed suicide for two reasons: 1) he had such a high level of barbiturates in his system that he would have been unconscious when he died, and 2) three shots were fired but the second shot killed him.

The ME’s “Report of Investigation by County Medical Examiner” (dated the day after the incident) is available online. It summarizes the case, but does not include any reference to the drugs in the victim’s system, because (as I understand it) that finding came much later, after a b
lood sample was sent to the TN state crime lab, which has since lost the blood sample.

The report exhibits the same leap to a conclusion of homicide that the ME made in the Collett and McLean cases.

However, the Serial ME’s role in the prosecution of Ms. Dossett-Leath is so extensive and complex, I need to discuss that case in another blog post.

To be continued …

Scientific Methods of Medical Examiners—Part I

If jurors are subject to public scrutiny and criticism, then surely medical examiners who identify homicide victims—and as a result force private citizens into the jury box at murder trials—must also be subject to public scrutiny and criticism.

In this era of televised trials, the cameras rarely turn on the jury; but they often focus on the witness stand where expert witnesses, including MEs, sit. Some MEs’ faces turn up on TV more often than others.

If there were a Sidewalk of ME Stars in Atlanta (where CNN’s In Session originates), one cement slab would surely be devoted to a female Tennessee medical examiner with a long, difficult-to-spell name. Because her name is so long, and because I’m not comfortable criticizing most forensic experts (I’m not a lawyer or forensic expert), I’m going to omit this woman’s name.

Problematic Science in Court

It may simply be a coincidence that a certain ME has testified in three trials that exemplify for me the problems with scientific presentations in court: the trials of John Collett, Raynella Dossett-Leath, and Eric McClean. But it seems unlikely to be a coincidence that each of these defendants is free today (at least free on parole or bond). Each trial had an outcome unfavorable to the prosecution for which this ME testified. Mr. Collett was found not guilty, Ms. Dossett-Leath’s trial ended in a hung jury, and Mr. McClean’s trial ended in a conviction on minor charges and a sentence of parole.

Science in Court for the Finders of Fact

In American law, the jury is the “finder of fact,” not the cops, not the prosecutor, not the judge.

Sidebar: This isn’t true in most countries. The issue is complex, and I will tackle it soon, but not now.

What “finding fact” means is that the jury examines the evidence and decides which of it is valid and which is not. In a murder trial this includes the ME’s testimony as well as autopsy photos and possibly the autopsy report. (I believe in many trials, the written autopsy is referred to by ME witnesses but never given to the jury.)

Ideally, an ME conducts every autopsy according to the “scientific method.” The method is a series of steps:

  1. Pose a logical sequence of questions about a physical phenomenon (such as, What was the “cause of death?” What was the “manner of death?”)
  2. Conduct background research (such as analyzing blood and stomach contents)
  3. Construct a hypothesis (using Ockham’s Razor, that is, the simplest explanation is usually the truth)
  4. Conduct an experiment based on the hypothesis
  5. Analyze the results of the experiment
  6. Draw a conclusion and support it with the experimental data

Note that the first step is to list all the reasonable questions. An ME must begin by questioning the cause of death and not jump immediately to the question about the manner of death. An ME must know what killed a person before she can declare the manner of death to be a homicide. Research must first be conducted into the cause of death, hypotheses tested, data analyzed, and conclusions drawn before asking the question: Was the cause of death natural, accidental, suicide, or homicide?

The final step in the scientific method is designed to communicate and persuade others of scientific conclusions. What that means for an ME is that the autopsy report must be persuasive and, in the case of homicide, must convince a jury.

Sidebar: I believe most jurors don’t understand that all science is subject to review and contradiction. Non-scientists don’t understand that scientific truth changes and evolves each time new experiments are conducted and new conclusions are reached. In other words, scientists require good rhetoric as much as a trial lawyer does.

Rules of Evidence

In most criminal trials, the prosecution must justify each of its items of evidence to a judge before any evidence can be presented to the jury. In America, the judge doesn’t declare items of evidence to be valid—only to be admissible and relevant under a very complex set of rules.

These “rules of evidence” derive from decades and sometimes centuries of common law and case law. None of the rules involve the scientific method.

A 1990s era Supreme Court decision, Daubert v. Merrell, attempted to banish “junk science” (evidence not deemed scientific by the science community) from courts. Unfortunately, the decision did not address the issue of experts who purport to be practitioners of legitimate scientific disciplines, but who—either carelessly or intentionally—fail to adhere to the scientific method.

Sidebar: For example, in 2002 a Bell Labs physicist, Jan Hendrick Schon, was discovered to have falsified data and claimed to have developed an organic transistor when he had not. If his claim had been true, it would have destroyed most of Silicon Valley and consequently a major segment of American industry. It was all a lie, and his fellow physicists did not discover the fraud through the much-vaunted “peer review process” until a young researcher noted that Schon had presented identical data sets as evidence of different conclusions.

In a murder trial, the autopsy or ME’s testimony is always admitted into evidence. The law does not contemplate the possibility that an ME would falsify an autopsy report or fail to adhere to the scientific method.

Autopsy Protocols

Well-known, standard procedures govern the conduct of an autopsy (Midwest Autopsy has a nice, clear description of the steps in an autopsy). The autopsy itself is step 2 in the scientific method, the background-research step.

Perhaps the most important step in an autopsy—certainly in homicide cases—is determining the time of death. ME technicians collect evidence of this at the place where a case of suspicious death occurred. In the body they note rigor mortis, livor mortis, and should also take the liver temperature. If they do not take a liver temperature at the scene, then the ME should take the temperature as soon as the body is received in the morgue. Failure to do so can cause a suicide to be identified as a homicide and the wrong person to be identified as a murderer simply because she doesn’t have an alibi.

The medical examiner must not approach an autopsy with an intellectual bias toward either the cause of death or the manner. As Dr. Friedlander of Midwest Autopsy notes, “At least a fifth of autopsies reveal a cause of death other than w
as believed clinically.”

The autopsy report and death certificate comprise the final step in the scientific method, the argument and persuasion.

CSI Involvement

In cases of suspicious death the police will take custody of the body, rather than a physician. Police crime-scene investigators will collect evidence from the body and around the place where it was found. Then, after the body is received at the morgue, either an ME or a crime-scene tech will remove all clothing and preserve it and will collect further hair and fiber evidence.

In such cases, the detective in charge of the investigation into the suspicious death will attend the autopsy (or should) to ensure that the ME doesn’t overlook anything or make obvious mistakes. The ME and the detective may discuss the circumstances under which the body was found. This discussion becomes part of the ME’s research. It also tends to guide the ME to ask questions and pose hypotheses.

Clearly, this police information has the potential to bias the ME. This is apparently what happened in the investigation into the death of Sgt. Drew Peterson’s second wife, Kathleen Savio, for instance. A good ME, of course, will resist the temptation to jump to conclusions. (It’s notable that the Savio autopsy was conducted by a pathologist, but the initial, mistaken cause of death as accidental was determined by a coroner’s jury.)

Put simply, nothing in criminal law prevents medical examiners from making mistakes or presenting false information to a jury.

In Part II I will examine a certain medical examiner’s testimony in three murder trials.

Juror’s rights—are there any?

In researching South Carolina v Rye, I stumbled upon a document involving jurors’ duties versus jurors’ rights: “Comments on Behalf of the South Carolina Press Association to Proposed Rule 141 c of the South Carolina Rules of Criminal Procedure.”

The document is attorney Jay Bender’s letter to the South Carolina Supreme Court urging the court not to implement a rule this year that would prevent the press from contacting jurors following a trial, because the rule would infringe on the freedom of the press. What strikes me in the letter is that it defines jury service: “service as a juror has long been regarded as the performance of a public duty, the performance of which by any juror is subject to commentary and criticism. . . .”

Based on this premise (that performance of a public duty is subject to criticism), the press is seeking—in essence—to permit the press to publicly vilify jurors and to give other private citizens who oppose a verdict to harangue and harass jurors.

This idea isn’t new to me. I realize that jurors have no privacy rights. I had thought until I read Mr. Bender’s letter, however, that this was a court-imposed problem for jurors. Now I see that it is a press-imposed problem.

Sidebar: I have written previously about the supposed freedom of the public to observe all aspects of a trial, including voir dire and jury selection, so I won’t repeat the details of the issue here. But it continues to plague me. Earlier this week (for instance) Jean Casarez of CNN’s In Session reported that the press was petitioning the judge in the Kansas abortion-doctor-murder trial to observe voir dire. If that isn’t proof positive of the risks a person takes when summoned to jury duty, I don’t know what is: the press wants to hear prospective jurors (not only chosen jurors) say what their personal views on abortion are—I guess so that other deranged people on both sides of the issue can shoot them, too.

I also know juror misconduct is a crime, and jurors can be punished for what they do as jurors—but a verdict (one way or the other) is not misconduct. Even so, apparently the press in South Carolina thinks a verdict is something a juror should be held accountable for.

I will take Mr. Bender’s word for it that the principle is well-established (at least in South Carolina law) that all public duties are subject to public criticism. But I cannot accept his understanding of the words “service” and “public duty.” Service is voluntary. Duty is not.  Public service includes the roles of judges, lawyers, and police officers. They volunteer; they serve; they get paid. Some of them are elected; many are not: they are appointed. Many of these professionals are also licensed by the states.

If you volunteer to perform a service to the public, you accept fair remuneration for your services and swear you are qualified and will perform your services to the best of your ability. The public may scrutinize your service as a consequence. If the public determines that you have failed in some way, they may criticize you.

Duty is assigned. Jury duty is assigned. It isn’t voluntary, and the pay is not fair remuneration.

If your are assigned to a duty, you need not be remunerated for performing your duties. You may also have to swear an oath, but the public cannot expect you to have any qualifications of any kind. If it is a public duty, then everyone in the public may be called upon to do the duty. It is not specialized in any way. You do not swear to perform to the best of your ability, because no ability is required for the duty to be performed. On jury duty, your duty is to follow the judge’s instructions and apply the law as it is read to you. Jurors are not licensed by the states.

A judge’s service may be subject to press scrutiny and criticism; a juror’s duty is not.

South Carolina v Rye—Finders of fact find something very wrong in their neighborhood

A comment on this blog yesterday mentioned the length of time it took the jury in South Carolina v Rye to find the defendant Grover Rye not guilty. The length of deliberations in the trial did not surprise me, though. Because of case law and common law traditions, deliberations in every case should take at least four hours, in my opinion (I am not a lawyer). In some ways this is a good thing; in others it is not.

What Happens During Deliberations?

Judges make it very clear to jurors that they must not make up their minds until after they have deliberated. (This is a good thing.) So, even in the most slam-dunk case, a jury needs time to follow the judge’s instructions. (The O. J. Simpson jury, for instance, took four hours to find him not guilty after a very lengthy trial, even though the jurors later reported that they had decided the case very quickly.)

1) When a jury goes into the deliberation room, the first thing they do is choose a foreperson. This isn’t as easy as it might sound. Jurors know very little about each other. Several people may volunteer (a bad idea, IMHO); several people may nominate someone else.

2) Once a foreperson is chosen, she has to figure out what to do next. The judge doesn’t explain what it means to deliberate, just how to follow the verdict form, which is a nightmarish document.

I suspect that in most cases the foreperson reads through the jury instructions (if the judge sends a written copy into the deliberation room with the jury). In South Carolina v Rye (version 1), the instructions were seriously flawed; so in the retrial I imagine the judge was meticulous both in preparing and reading the instructions. Detailed instructions are lengthy and arcane. If a jury has to read through them, that alone takes an hour or more.

3) Even if there are no written jury instructions, there is always a lengthy verdict form, which the foreperson uses as a map for deliberations. Most people probably assume a verdict form is simple: check box A or box B. In fact, the verdict form is the judge’s interpretation of and restatement of the state’s laws. It is laid out like a decision tree and in the negative: if A and not B, then check box A1.1. If A and B, then check box A1.2. It’s maddening, like an income tax form only worse: if you check the wrong box, somebody could die.

My guess is that in most trials the bulk of the time is spent in an effort to translate the verdict form into logical, plain English.

4) At some point, everyone on the jury is given a chance to express his or her opinion. (A natural tendency is to take a straw poll at first; but even if everyone agrees on a verdict, they have promised to deliberate.)

Some people say “I agree with what has been said” and nothing else. Few Americans are comfortable speaking in public. Since a jury is a crowd of the public, it isn’t as easy as some of you might think for the rest of us to “speak our minds.”

But some people like to hear themselves talk, and they interpret the judge’s instructions “to deliberate” as a mandate to deliver a lecture.

5) Eventually, the foreperson asks if everyone’s ready to vote. Most jurors will say “yes.” But one or two may say, “I’m not so sure yet.” When that happens, the “roundtable discussion” is repeated with everyone saying exactly what they said before.

S. Carolina v Rye Deliberations

Believe me, if you’re on trial you don’t want the jury to take an hour or less to deliver the verdict. You want them to give serious thought to the issues.

In the Rye trial I see several issues that could have given the jury pause. First, of course, is the sad fact that someone died of gunshot wounds. That in itself is enough to require serious discussion. Anyone who values human life would want to be very sure Mr. Rye did not act out of anger and vengeance.

The second issue that had to be considered was the fact that he returned to his property after making a 911 call in which he said he would wait for the sheriff in his car, but instead he got a gun and went in the direction of the sound of gunshots.

Both of these issues were expressed in the verdict form as to the laws of self-defense and defense of habitation. That means the jury had to take enough time to discuss these complex issues. Even a juror who felt as I do that the deceased was behaving like a police thug would have to consider these issues carefully: just because someone is behaving badly is no excuse for behaving badly yourself. That’s the whole purpose of law.

Why Jury Duty is Frustrating

If I were on the Rye jury I would have been seething by the time I went into the deliberation room, because of what was NOT said in court. As far as I can tell, no mention was made that the deceased was a cop who was breaking the law (the defense pointed out only that he was breaking the law, not that he was betraying his oath of office) or that the entire law-enforcement establishment of the county appears to have colluded in a cover-up.

But the Rye trial is not unusual in this regard. Case law forces the courts to present evidence in this distorted way. No jury ever hears the truth, the whole truth, and nothing but the truth.

One of the common law principles at work in American trials is that the “jury is the finder of fact, not of the law.” This principle is fundamental to the way evidence is presented in American courts. It is also a principle that derives from an early-modern understanding of natural law.

Even the term “natural law” has evolved significantly since the time the Constitution was written. And since this is my expertise (the history of the English language), I will restrain myself for now. The concept of “finder of fact” deserves at least one blog post of its own.

It’s very hard to be a juror–South Carolina v Rye

Imagine this: You’re selected to serve on a jury involving the homicide of an American military veteran and police officer. You’re a patriot. You admire our troops. You believe in law and order.  But the state in which you live and the county in which you live fails in this instance to maintain law and order. An off-duty cop is shot to death, and the prosecution claims it was all over a neighborhood dispute about some cats.



  • Sidebar: It’s difficult to find details of this case other than the appellate court’s decision and CNN’s In Session blog. I have inferred that the “victim,” Robert Odam, was a military veteran from a photograph of him in uniform, which I saw on TV. However, the uniform might be a law enforcement uniform. The incident occurred in 2004, which led me to think Mr. Odam might have been an Iraq War veteran, and as a result the jury might have been biased strongly in his favor.

That’s the situation that confronted two juries in South Carolina v Rye. Every criminal jury is convened at the end of a series of systemic failures to maintain law and order. In this case, the failures were monumental. That’s why it’s “really hard to be a juror.”


In the first Rye trial, the jury wasn’t told that it’s legal to defend your home; in the second they were.



  • Sidebar: CNN’s In Session blog called the appellate court’s overturning of the first verdict a “paperwork problem.” I’m sorry to say I find that offensive. When a judge reads the wrong law to a jury, it’s an egregious error that violates not only the defendant’s rights but also the jurors’. The error forced the jurors to find a man guilty of murder, because they swore to uphold the law as the judge explained it. To be honest, it makes me wonder about the first judge’s objectivity; how any unbiased judge could fail to see the incident as a type of home invasion is beyond me.

But in neither trial, as far as I can tell, did the prosecution admit that the supposed victim was an off-duty cop who was breaking the law or that his fellow officers repeatedly colluded with him in violating the civil rights of a citizen.



  • Sidebar: Several police officers (sheriff’s deputies, I think) responded to calls from Mr. Rye, the defendant, but failed to follow up and investigate what appeared to be not only vandalism but breaking and entering and unlawful use of a gun. That was a dangerous situation. That’s what the cops are for.

  • Even the 911 operators appeared (in my opinion) to respond improperly to Mr. Rye’s calls. The only explanation that I can see is that they all knew who was behind the incidents and didn’t want to get their buddy in trouble.

  • I’m not a lawyer, but it seems to me this is a federal civil rights violation. (I hope Mr. Rye will sue the county now for false imprisonment, and I wish the U. S. Justice Dept. would take a look at the county, too.)

Jury in the Hot Seat


I have been in a jury deliberation room and been asked to decide whether a person should go to prison for decades for a crime in which the victim was utterly sympathetic, like a veteran or police officer. When I was selected, I expected it to be an easy deliberation, but it turned out to be one of the most difficult, stressful events in my otherwise stressful life. And since then I have heard countless other jurors express the same feeling.


It was so stressful, I spent weeks and weeks afterwards researching the law, and then I decided to vent my frustration in a blog. (My venting hasn’t yet relieved me of my anxiety about the state of the justice system in this country.)


Finally, I realized that what I really needed to do was write fiction about jury duty. I’m a fiction writer, after all. So I wrote, THE JUROR HANGS.


In the novel, my protagonist is a young (much younger than me) librarian-juror who finds herself the lone holdout on a jury of 11 men plus 1. She’s a lot more self-confident than I am. She also handles the stress a lot better than I did. But partly that’s because I decided to set the trial in 1952, which was a much simpler, happier time than these.


THE JUROR HANGS is available exclusively from Amazon on the Kindle. It’s a reasonable $2.99. You can read it on the Kindle, the iPhone, or your laptop. (If you would like to read it in another format, please email me at ccm@ccmambretti.com.)


If you want to know how a juror should behave—as opposed to the way I behaved—read THE JUROR HANGS. Otherwise, I think you should thank your lucky stars that a jury in South Carolina saw through the government’s twisted scheme and freed an innocent man—the real victim in South Carolina v. Thomas Grover Rye.


 P. S. If the number of illiterate comments my previous post about this case received is any indication, there are quite a few people in South Carolina who don’t understand something: if you have an issue with your neighbor’s pets or the condition of the property, you are supposed to contact county authorities and demand they do something about it–issue a citation, for instance. You aren’t supposed to load a gun, trespass on the property, and start shooting, whether or not you are the friend of an off-duty cop.


South Carolina v Rye–This Juror is Horrified by Police Thuggery

CNN’s In Session this week is covering the retrial of a South Carolina man named Grover Rye for the murder of an off-duty policeman. Even the South Carolina Appellate Court called the case “bizarre.” The retrial took place in October, as John Monk reports in The State, “Dead cats’ owner cleared of killing deputy.”

When I heard In Session’s Ryan Smith interview pet lovers about the case, I was struck by two things: 1) pet murder is a crime, a form of vandalism, and 2) the idea of an off-duty cop trespassing on my property with a loaded gun is horrifying—why didn’t Ryan Smith interview people about that?

The Crimes

Mr. Rye owned property where he kept pet cats and had off-site storage for a business. He often spent the night there, although it was not his primary address. He reported numerous instances of trespassing and vandalism to the police, who repeatedly ignored his complaints. One day a neighbor and his friend, a cop, trespassed on the property with loaded weapons and fired several rounds of ammunition. The defendant discovered one of his cats had been shot. He left the property to call the police, and when he returned found himself confronting the two armed men. His initial conviction came as a result of the surviving, armed trespasser’s testimony that the victim was killed after he lowered his weapon—and only that testimony.

Mr. Rye won his appeal on the grounds that the judge had not properly instructed the jury on the law of “defense of habitation.” No mention is made in the decision of the fact that the trespassers were not charged with crimes or that a police officer clearly was using his skills as a law enforcement officer to break the law.

Police Thugs

I don’t think I’ve ever heard a more chilling tale of police misconduct than this. It reminds me of the Gestapo.

Consider this: Your neighbor is in law enforcement. Every day you see him come home from work wearing a sidearm. Then one day you discover your pet cat shot dead in the backyard. What do you do? You call the police. Who responds to your call? Either your neighbor or one of his buddies, who says there’s nothing he can do about the dead cat.

What if your disputes with your neighbor continue to escalate? Then someone steals the plates off your car. A crime is committed, and witnesses identify your license plate number on the getaway vehicle. The DMV suddenly sends you a notice that you owe hundreds of dollars in traffic tickets.

What if you come home from work to discover your house has been broken into and your personal identity information has been stolen? After that, someone uses your credit cards to buy expensive items; someone takes out a loan or a mortgage. Your credit is ruined. After that you go to a polling place on election day and are turned away by an election judge, because someone else has already voted in your name. You apply for a passport, but the State Department tells you it has already issued you a passport.

And all the while, you feel certain the culprit is your police-officer neighbor.

The situation Mr. Rye faced was truly Kafkaesque.

The Jury to the Rescue, Once Again

South Carolina v. Rye is the reason the Bill of Rights puts strict limits on police power—not only because the power of the state must be kept in check but also because of the thin line between the rule of law and the rule of the cops.

Black Widows and Copyrights

This morning I did a web search for news of the jury-selection process in the second Dossett-Leath murder trial, which began yesterday in Knoxville, TN, and I discovered an interesting copyright issue: the Knoxville News Sentinel at www.Knoxnews.com is using something called iCopyright.net to secure its rights to its online articles.

Another Knoxville news outlet, however, has posted an article under the usual terms: www.wate.com. (The article, by Hana Kim, is “Jury seated for murder trial of Raynella Dossett-Leath.”)

Both stories report completely separate “facts” of events in court yesterday.

Recently, Judge Richard Posner reportedly advocated a system of charge-per-link as a way of protecting newspaper copyrights—something along the lines of iCopyright.net, apparently. His argument was that a newspaper (and presumably a television news organization) spends a lot on news-gathering; then bloggers and news aggregators simply freeload by linking to the news provider’s site. (I wonder what Google would do if his proposition were adopted?)

This situation poses a number of problems for me, both as a writer and as a blogger (a merely opinionated person, as opposed to a journalist).

1) I value my copyrights highly, but recently American law has begun to chip away at my rights: Congress has passed several blatantly unconstitutional special, private laws for their campaign-contributors. For instance, Disney now has a virtually eternal copyright to Mickey Mouse and friends; Sonny Bono persuaded Congress that music producers and book publishers are entitled to more extensive copyright protection than anyone else is entitled to, including creators; dead celebrities’ estates can claim ownership of the deceased’s image almost forever.

2) Every copyrighted work can be referenced under the “fair use” doctrine for purposes of review and education. So, as a writer of both reviews and educational materials (which I am, and I’m not talking about this blog alone) I am entitled to a certain freedom of expression when it comes to other people’s copyrighted works. For example, I can criticize the “legitimate” media in Knoxville, TN, for labeling a defendant “the Black Widow” so that she can’t possibly get a fair trial.

3) There is no way I will permit a third party, such as iCopyright.net, to display their ads on this blog. This is a non-commercial blog about a serious American institution—the jury.

The situation also presents obvious workarounds.

1) If all online news sources prefer that I simply read their articles and then express my opinions without making any reference to them, I will be happy to do that. It seems to be the most reasonable approach. I can “opine” as pompously as anyone else online or off without citing my sources. That’s what newspapers do all the time.

2) If some online news sources (not all) don’t want me to direct traffic to their sites, that’s fine with me, too. I can provide interesting, informative links to sites that understand the value of free advertising.

The Dossett-Leath Jury Selection Process

According to numerous online sources, jury selection in the retrial of Raynella Dossett-Leath in Knoxville, TN, was conducted yesterday by the same judge who presided over her first trial, Judge Richard Baumgartner. He called a pool of 500 people to a local auditorium and told them that the jury would be sequestered beginning next Tuesday. Then he asked for a show of hands as to how many of the 500 would volunteer to serve on a sequestered jury. Fifty or so people responded positively. Subsequently, a jury of 12 plus 3 alternates was selected.

Sequestration makes perfect sense to me (a non-lawyer), because the defendant has already been condemned in the local media, and the trial is bound to be the focus of local gossip over the next few days. However, if I were the defendant, I would have wanted the venue changed to Memphis, where presumably they have better things to do than help a woman’s in-laws send her to jail so they can claim her husband’s estate.

A CourtTV truck was parked outside the jury-selection location. That means In Session will be covering the retrial. I imagine In Session won’t ask me to pay for a link to their blog. (Frankly, I think it should be the other way around, despite Judge Posner understanding of economics and the law.)

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Jury Selection Begins Soon for the Black Widow Retrial

The retrial of Raynella Dossett-Leath begins on Monday, Jan. 11. Because it is a retrial, I suppose CNN’s InSession won’t bother to cover it gavel to gavel. More’s the pity. This case is fascinating, and the retrial promises to be very different from the original trial.

  • Sidebar: Every media outlet in the Knoxville, TN, region calls Ms. Dossett-Leath the Black Widow. I’m only mimicking the “legitimate media” (bloggers being illegitimate).
  • Ever wonder when they started calling women accused of killing their husbands “Black Widows”? I checked the OE for the first usage of the term and could not find it there. The term was used in English by 1884 when two women were called the “Black Widows of Liverpool.” But that surely isn’t the first usage. Misogyny is millennia old. The male equivalent, I suppose, is “Bluebeard,” but a Bluebeard is a serial killer of his wives, like (apparently) Drew Peterson, while a “Black Widow” earns her title with a single accusation. Unfortunately for Ms. Dossett-Leath, she is accused in a separate indictment of killing another husband, too.

Jury Selection in a Hostile Venue

I imagine that right now legions of jury consultants are assisting both sides with the jury questionnaires and jury-selection strategies. In the land of Black Widow nurses, though, the first concern surely is finding a jury panel that is ignorant of the full story, objective, and unbiased.

  • Sidebar: I call Tennessee the land of Black Widow nurses because only a few weeks ago another TN nurse (Sharron Chason) was tried for the murder of her husband. The fact that Ms. Dossett-Leath is a nurse, I believe, will work against her (for reasons I will explain below).

Any juror who has heard the defendant in this case referred to as the Black Widow ought to be excused, IMHO. The term implies serial killing to many people (suggesting that the defendant is guilty of more than one murder) and it absolutely implies guilt. However, I suppose the law doesn’t see this issue the way I do or else the trial would have been changed to another venue.

Jury Selection Everywhere

I am not a lawyer. I am not a jury consultant. I am not a jury expert. I’m just a former criminal-trial juror. Since I served as a juror, I’ve made a sort of study of jurors in the high-profile cases that make national news, and I have reached some conclusions about “juror profiling.”

And I certainly don’t believe in Abbott’s Analytic Juror Rater.

The AJR

The Analytic Juror Rater is a 1987 book by Walter Abbott. It claims to predict how any given juror will vote based on a “Cosmopolitan Lifestyle Scale” and a “Non-Authoritarian Scale.” The first of these scales is based on the assumption that economic status and social environment make a juror more or less sympathetic with certain defendants, and the second of these, obviously, assumes that some personality types are more likely to fear the state.

The Hanged Juror’s Juror Rater

The one question I would ask each prospective juror: What do you do for a living?

  • First, you don’t need to ask any juror what their race is, ethnicity, age, or income. Those characteristics are fairly obvious.
  • Second, you ought not to assume that if the juror looks at all like the defendant that he or she is going to be naturally sympathetic with the defendant; in fact, if you’re honest with yourself, most of us would really dislike meeting anyone who was just like we are. (On the jury with me was a woman who was very like me and I wanted to strangle her.) However, the AJR is based on the premise that everyone has biases for people like them and against people unlike them.

Okay, so if you buy my premise, then maybe you will understand why profession, career, or livelihood is the most important indicator of the type of juror any individual will make. It’s something you choose for yourself. You aren’t born being a nurse or a fiction writer.

Principle No. 1: A person who has the same livelihood as the defendant is also the person most likely to condemn the defendant.

I suspect that most attorneys think a nurse would be a good choice for the Dossett-Leath jury, but I think not. One of the issues in the trial will be the high level of barbiturates in the deceased’s blood. Every nurse (and every doctor) will know how easy it is for a nurse to obtain such drugs, while other professionals may only suspect but be willing to give the defendant the benefit of the doubt.

Principle No. 2: Most professionals are know-it-alls.

The foreman of the jury on which I served was an engineer. She campaigned for the position by claiming to have read books on how to reach consensus.  Another juror was a teacher, and she subjected us to an hour-long lecture on the definition of kidnapping.

In the first Dossett-Leath trial I believe one juror was an engineer who asked an expert witness about the theta (angle) of a bullet’s trajectory. Engineers, I believe, are good candidates for juries in which the defense is planning to argue reasonable doubt, but they probably won’t buy most affirmative defenses, including alternative theories of the crime. Engineers can’t help but make decisions all the time based on a preponderance of the evidence; an affirmative defense can never claim to have a preponderance of the evidence on their side.

Principle No. 3: Some jobs are detail-oriented, some are not.

Engineers and computer programmers are nitpickers. Copyeditors are nitpickers (I know, I’ve been a copyeditor, a computer technical writer, and a programmer). You don’t want these people on a jury that must decide a case where the defense is ambiguous. You do want them on a jury where the ambiguities work in your favor, though—as in a reasonable doubt defense. Since I would vote not guilty if I were on the Dossett-Leath jury based on what I know now, I suppose that means that nitpickers would be appalled by the prosecution’s sloppy police work and the M.E.’s outrageous conclusions.

While I’m on this subject I should note that during voir dire it would be wise to ask prospective jurors about their complete history of employment, since most of us go through two or three careers these days. In my case, they asked me about my mystery writing but not my previous technical career.

Principle No. 4: Sex stereotypes fall apart when the individual chooses a profession that’s counter to the stereotypical role (male models, for instance, and female firefighters).

Principle No. 5: Some jobs teach skepticism (reasonable doubt) while some teach credulity.

On “my” jury we had a priest (credulous) and a geneticist (skeptical, questioning, “how did this evolve”?). The priest was the last to question the prosecution.

In a highly controversial trial several months ago (which I will not mention, because I get spammed every time I do) one juror was a lawyer who, though not the foreperson, led the jury to a not-guilty verdict based on reasonable doubt about the star witnesses for the prosecution. It was then that I realized you have to be a lawyer to “buy” a reasonable doubt defense. (I don’t think lawyers are skeptics, though; I think they’re relativists, but that’s another issue.)

Principle No. 6: Some jobs require teamwork and consensus-building, some require individual initiative.

Prosecutors should look for team players; defense attorneys should look for mavericks. I suspect that most businesspeople are team players, as are most nurses. Mavericks would be tennis players, chess players, farmers, self-employed people, artists, writers—anyone who goes it alone.

Selection of the Dossett-Leath jurors is probably fraught with peril for the defense. I wish them luck. And luck is frankly what is required. They can’t do anything about the jury pool. They have to rely on the judge to excuse as many potentially biased people as possible so that they don’t use up their limited number of discretionary selections.

A good lawyer, though, knows he or she can influence the jury by asking the right questions of them during voir dire. I hope the Dossett-Leath defense team asks a lot of questions about professions.

I wish I could be there to observe the process. But I’m very happy that CNN can’t broadcast voir dire in any trial, because jurors have little enough privacy as it is.

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