Bill Bickel’s Crimeweek

Richard Cooey’s federal lawsuit, in which he claims that his weight and his migraine medication will make it difficult to anesthetize him (and therefore his execution, scheduled for October 14, would be unconstitutionally painful), is still to be decided — but his appeal for clemency on the grounds of ineffective representation (among other things, his trial attorney neglected to tell the jury about Cooey’s substance abuse problem or the fact that he’d been abused as a child) has been turned down by unanimous vote by the Ohio Parole Board.

The decision is not legally binding on Governor Ted Strickland.

Cooey admits taking part in the rape, beating and strangulation of two women in 1986, but insists that his partner — who cooperated in the initial investigation and is serving life in prison — committed the actual murders.

That being said, there’s a possibility that Cooey’s date with the lethal injection will be delayed because of a murder he says he did commit:

Back in 2003, when he was hours away from execution for the 1986 murders (the execution was delayed by a federal judge because of Cooey’s claim of ineffective representation) , he told a prison official who was a member of the execution team that he’d killed “a hockey player”: He didn’t provide a name, or a date; he said the man had beaten one of Cooey’s sisters, but didn’t specify which sister.

Confessions given to a member of the execution team are considered confidential — but a transcript was made of the discussion, and the transcript recently came into the hands of a reporter, and now an investigation is underway.

Though Drew Peterson has not been charged in either his fourth wife Stacy’s October 2007 disappearance, or for his third wife Kathleen Savio’s murder, the first book about these cases — Fatal Vows: The Tragic Wives of Sergeant Drew Peterson by Joseph Hosey – hits the bookstores today.

Coming out next month: A book “written by” Crystal Mangum (The Last Dance For Grace: The Crystal Mangum Story), the North Carolina exotic dancer whose false rape accusations against three Duke University lacrosse players created a national controversy and ended the career of the district attorney who exploited the case for political gain.

It’s unclear what Ms. Mangum really has to say here: The most charitable version of events would be that, drug-addled as she appeared to be the night of the March 13, 2006 party, she really had no recollection of what happened and got caught up in a media witch-hunt instigated by other people’s agendas.

The other alternative is that she lied, and continued to lie, and enjoyed both the attention and the gifts lavished upon her as the victim of racial and sexual injustice.

In the first case, she really doesn’t have much to say (”What happened on the night of March 13? Heck if I know!”). In the second, she’d be acknowledging her good fortune that she was never prosecuted for a deception that ruined several lives, led to millions of dollars worth of lawsuits, and made it just that much more difficult for future actual rape victims to be taken seriously — especially exotic dancers or, if we may be more precise, strippers.

As it turned out, Durham County District Attorney Mike Nifong’s abuses of the legal system were so egregious, that any move to punish Mangum’s own offenses sort of fell by the wayside.

Now that Nifong’s been disbarred, though, it might not be in Mangum’s best interests to throw herself back into the spotlight.

• Drew Peterson/Stacy Peterson/Kathleen Savio
• Mike Nifong: Why We Should Be Afraid
• Mike Nifong Doesn’t Apologize

“I’m gonna rip them apart… I’m gonna make sure the rest of their life is ruined, that when they’re 8 years old, they throw up; when they’re 12 years old, they won’t sleep; when they’re 19 years old, they’ll have nightmares and they’ll never have a relationship with anybody.”

James Fagan, a Massachusetts attorney and state representative, made this comment on the Massachusetts House floor last month, during a debate on a bill to establish severe mandatory sentences for child sex offenders.

Now, I can understand saying something along the lines of “If this bill passes, I can foresee the unintended consequence of defense attorneys being particularly harsh when cross-examining young alleged victims.” I can understand him thinking about how he’d verbally attack young girls on the witness stand.

Maybe he didn’t realize he was speaking out loud?

What goes through a person’s mind to make him think a speech like this, enthusiastically, gleefully describing how he’s going to destroy the lives of child rape victims, would be positively received? And he’s not just an attorney, he’s a state representative.

For no longer than the next election, presumably: It’s hard to imagine anybody in the state who couldn’t defeat him, other than one of his own clients.

Oh, and if you can appreciate some irony… Fagan is chair of the House ethics committee.

Feel free to contact him at Rep.JamesFagan@hou.state.ma.us

Senator and presidential candidate Barack Obama, who describes himself as a “critic” — but not an opponent — of the death penalty, told reporters in Illinois late yesterday that he doesn’t agree with yesterday’s U.S. Supreme Court ruling: “I have said repeatedly I think the death penalty should be applied.. for the most egregious of crimes… The rape of a small child, 6 or 8 years old, is a heinous crime, and if a state makes a decision that…. the death penalty is at least potentially applicable, that does not violate our Constitution.”

Alabama Attorney General Troy King said that “anybody in the country who cares about children should be outraged, Louisiana Governor Bobby Jindal called the ruling “incredibly absurd,” and legislators in several states suggested that they’d try to write versions of the same law that up to U.S. Supreme Court scrutiny (though practically speaking “The death penalty is not a proportional punishment for the rape of a child,” Justice Anthony Kennedy bottom-line comment, doesn’t seem to leave much room for new versions).

Politicians must posture, though.

In the end, of course, only two men were actually on Death Row for child rape — both in Louisiana — and nobody has actually been executed in the United States for a crime other than murder since 1964.

“The death penalty is not a proportional punishment for the rape of a child” -Justice Anthony Kennedy

By a 5-4 vote, the U.S. Supreme Court ruled today that states may not impose the death penalty for raping a child. Louisiana, Georgia, Montana, Oklahoma, South Carolina and Texas have the penalty on their books, though only Louisiana has anybody on death row for aggravated child rape: Patrick Kennedy, who raped his 8-year-old step-daughter in 1998 (and in whose name the case was argued), and Richard Davis, convicted of multiple rapes of a 5-year-old girl.

Nobody has been executed in the United States for anything other than murder since 1964.

The Supreme Court had ruled in 1977 that the death penalty for the rape of an adult is cruel and unusual punishment.

Two commonly made points against capital punishment for child rapists — though neither involves constitutional issues and were irrelevant in the arguments made before the Court on April 16 — were that the United States was the only Western nation with prisoners on Death Row for anything other than murder (according to a lawyer for the Capital Appeals Project, the nonprofit law firm representing Kennedy), and that a death penalty for rape might make rapists more inclined to kill their victims (similar to an argument made against the “Little Lindbergh Laws” passed in many states following the 1932 kidnapping of Charles Lindbergh’s son, which allowed the death penalty for kidnappers who physically harmed their victims; the Little Lindbergh Laws were struck down by the U.S. Supreme Court in 1972).

In Texas yesterday, Tracy Denise Roberson was sentenced to two to five years, after being convicted Friday of involuntary manslaughter.

She wasn’t the one who killed Devin LaSalle — it was her husband Darrell Roberson who fired four shots into LaSalle’s truck, killing him — but the shooting occurred after Darrell came home to find LaSalle and a near-naked Tracy in LaSalle’s truck in their driveway. Tracy said that LaSalle was trying to rape her, and Darrell shot at him as he was trying to drive off.

Robert was originally charged with murder, but those charges were dropped — and manslaughter charges filed against Tracy — once evidence of the affair (including a text message in which Tracy invited LaSalle to come over that evening) came to light.

At trial, Tracy claimed that Darrell killed LaSalle in a jealous rage. Despite that unsuccessful defense, Darrell told a local television station today that Tracy should have been sentenced to no more than probation, explaining: “Tracy had an affair on me, that’s all she’s guilty of … and when she did what she did and caused what happened, that’s just what that is.”

Remember Roy Pearson, the administrative court judge who last year sued a Washington, DC dry cleaners for $67 million after they allegedly lost a pair of his pants (if not, scroll down for a reprint of an earlier article)? Pearson lost the case, the dry cleaner filed a motion against him to recover $83,000 in legal fees (later dropped after donations covered the expense), and the D.C. Commission on Selection and Tenure of Administrative Law Judges voted not to renew his contract, citing his lack of “judicial temperament.”

Now he’s suing the city: He wants $1 million (for lost wages and punitive damages) and his job back, claiming he’d been fired for exposing corruption in the Office of Administrative Hearings and that the city had used his infamous lawsuit as an excuse to get rid of him. (more…)

Last May, the Massachusetts Supreme Judicial Court overturned the rape conviction of a man who had sex with his brother’s girlfriend after convincing her, at night in a dark room, that he was in fact his brother. The Court ruled that Massachusetts law defined rape as sexual intercourse compelled “by force”, citing the precedent that in 1959, the Judicial Court specifically ruled that fraud can’t replace force as an element of the crime.

The state Legislature is now considering a law under which the crime of rape includes using “fraud, concealment or artifice” to trick somebody into having sex.

Obviously the existing law is inadequate – but under the proposed law, it would be possible to convict somebody of rape if he lied about being married or about how rich he is.

A reasonable middle ground shouldn’t be too difficult to find: Just off the top of my head, how about calling it rape if the deceit contains an element of another crime: identity theft in the case overturned last year, or impersonating a doctor (as in another recent case, where a pharmacist claiming to be a doctor performed a full-body exam on a woman) or a police officer?

The legislators can certainly come up with something at least as sensible as this idea. I don’t think anybody really wants a man to face decades in jail because he lied when he said “I’ll still respect you in the morning.”

The U.S. Supreme Court is hearing arguments today about whether the death penalty for child rapists constitutes cruel and unusual punishment. Louisiana, Georgia, Montana, Oklahoma, South Carolina and Texas have the penalty on their books, though only Louisiana has anybody on death row for aggravated child rape: Patrick Kennedy, who raped his 8-year-old step-daughter in 1998 (and in whose name the case is being argued), and Richard Davis, convicted of multiple rapes of a 5-year-old girl.

The Supreme Court ruled in 1977 that the death penalty for the rape of an adult is cruel and unusual punishment.

Two commonly made points against capital punishment for child rapists — though neither involves constitutional issues and will be irrelevant in today’s arguments — are that the United States is the only Western nation with prisoners on Death Row for anything other than murder (according to a lawyer for the Capital Appeals Project, the nonprofit law firm representing Kennedy), and that a death penalty for rape might make the rapists more inclined to kill their victims (similar to an argument made against the “Little Lindbergh Laws” passed in many states following the 1932 kidnapping of Charles Lindbergh’s son, which allowed the death penalty for kidnappers who physically harmed their victims — the Little Lindbergh Laws were struck down by the U.S. Supreme Court in 1972).

Today, former Durham, North Carolina district attorney Mike Nifong began serving a 24-hour jail term for his role in the Duke University sexual assault case. On December 10, Atlanta Falcons quarterback Michael Vick will be sentenced to up to 5 years in prison — probably between a year and a year and a half — for financing, running and taking bets on a dogfighting ring.

At the risk of getting getting hate mail from animal lovers, I think it’s important to point out here that while what Vick did was reprehensible, these are dogs. Even a PETA member would be hard pressed to argue that what Vick did was 500 times as serious as what Nifong did.

Let’s consider what Nifong did to earn his 24 hours behind bars: He created a rape case against three Duke University lacrosse players for the sake of political gain. He was aware that the accuser had offered several conflicting, drug-addled accounts of the alleged attack. He was aware that there was no physical evidence, and that there was credible evidence showing that one of the defendants was not even present at the time. Within a few weeks, DNA test results showed that the defendants did not have sexual contact with the accuser, and he with-held this information from the defense. Pandering to the black Durham voters he considered vital for his re-election, he publicly referred to the alleged attack (three white students accused of raping a black exotic dancer) as racially motivated.

The damage to the defendants included suspension from Duke University, nine months as rape suspects, reportedly over a million dollars in legal fees each, and permanent Wikipedia pages devoted to the accusations.

But let’s put aside the specific effects on the defendants, and even most of the specific charges against Nifong, and focus on this: As a prosecutor, he had three people indicted for rape, knowing that they were probably innocent, with-holding and lying about evidence indicating that they were innocent, all for the sake of trying to advance his career. And he wasn’t just anybody, he was a man given an enormous public trust and the power that accompanies it.

“Scary” shouldn’t even begin to describe it: If this is what a prosecutor could do to three young men whose families were well-connected and able to spent millions of dollars to fight the charges, what chance would the likes of us have?

Back to Vick, I’m actually fine with him going to prison for a year and a half — but the proportionality is all wrong: Nifong is guilty of offenses against not only the defendants but against our faith in the legal system. I understand that he’s lost his job, was disbarred and faces civil actions, but the criminal justice system should be demonstrating in the most severe way that this behavior can’t be tolerated.

A 24-hour sentence, on the other hand, was the court’s way of saying “We have to find you guilty, but we’re doing all we can to close ranks and protect our own.”

“I agree with the attorney general’s statement that there is no credible evidence that Mr. Seligmann, Mr. Finnerty or Mr. Evans committed any of the crimes for which they were indicted — or any other crimes [against Crystal Mangum] during the party” -Mike Nifong, former Durham County (North Carolina) district attorney

The interesting thing about this comment is that newspapers are using headlines such as “Nifong Admits That Duke Lacrosse Players Didn’t Commit Any Crime” and “Nifong Apologizes to Duke Defendants”. In fact, he worded his statement very carefully to avoid doing either: He said that he agreed with North Carolina’s Attorney General that there was no evidence that could convict them — which he knew a year ago. He never said they were innocent. He never said he was sorry he prosecuted them (only for his unspecified “mistakes”). (more…)

“I will go to my grave being associated with this case.” –Mike Nifong

The Victim of the Year Award must surely go to Mike Nifong, the former Durham (North Carolina) district attorney who was removed from office and disbarred earlier this month following his 10-month prosecution of three former Duke University on rape charges: a politically-motivated action that included withholding evidence from the defense, publicly calling the defendants hooligans and announcing that the rape was racially motivated, all the time knowing that there was no evidence, the accuser was unreliable at best, and there most likely was never any sort of sexual attack. Any sympathy we might feel over Nifong being forever associated with this case must be weighed against the fact that Reade Seligmann, Collin Finnerty and David Evans will also be forever associated with this case, and they didn’t commit any crimes. (more…)

If you have sex with your brother’s girlfriend, after convincing her in a dark bedroom that you’re your brother – in other words, without her informed consent – is it rape? Not according to Massachusetts law, according to the state’s Supreme Judicial Court, which set Alvin Suliveres free this past Thursday: The long-standing rape statute defines rape as sexual intercourse compelled “by force”, and in 1959 the Judicial Court specifically ruled that fraud can’t replace force as an element of the crime. (more…)

Seriously, there are days when I wonder what goes through people’s minds…

As he pretty much had to, Circuit Judge Ric Howard today excluded another of John Couey’s confessions…

On February 23, 2005, Couey, a registered sex offender who had recently worked construction at the Florida school where 9-year-old Jessica Lunsford attended third grade, abducted Jessica from her bedroom, sexually assaulted her, and murdered her. We know this because Couey made two full confessions to police.

On June 30, 2006, however, Judge Howard ruled that the jury will never hear Couey’s confessions because the Citrus County detectives repeatedly side-stepped Couey’s requests to speak with an attorney.

Detective Scott Grace told the judge, “It was not crystal clear as to exactly what he was stating to me.” According to the interrogation transcripts, these were some of the ”unclear” exchanges:

“I want to talk to a lawyer first”"I want a lawyer here present.”

“You want to talk to a lawyer first?” “Yes sir.”

“I’m just… I want a lawyer, you know.”

The discovery of Jessica’s body — buried alive in trash bags and dead of suffocation, her hands tied, having poked holes in the bag with her fingers, a stuffed dolphin toy between her arms — remains admissible as evidence because Judge Howard believes the police would have found her even without the confessions.

(and then on July 6, the judge ruled that the prosecution can’t tell the jury that in 1978, when Couey was 19, he was accused burglarizing a home, placing his hand over a girl’s mouth, and kissing her — because, since it didn’t involve sexual molestation, it wasn’t similar enough to the current case to indicate a pattern of behavior).

Today’s ruling involved a less direct confession: After Couey made the confessions that were thrown out in June, and still not having been given the lawyer he’d asked for, Orlando, Florida detectives questioned him about the unsolved 1985 murder of 15-year-old Regina Armstrong (Jessica and Regina were similar in appearance, and Couey had grown up near Orlando). Couey told them “This [referring to the Jessica Lunsford murder] is the first time I did something stupid like this. If I did it I would tell you. They can only kill me once.”

The prosecution contended that since Couey was not being questioned about the Jessica Lunsford case, his request for a lawyer in regard to that case didn’t apply here, therefore his Miranda rights were not violated and this statement should have been allowed.

Judge Howard disagreed, citing the fact that Couey was in custody and that he hadn’t asked to speak with the Orlando detectives.

You would think, even if all these detectives felt they could generally get away with “bending” the Miranda rules a bit, they’d realize that in a high-profile case such as this one, everything will be under intense scrutiny and needed to be done by the book. Understandably, they were probably under intense pressure to get a confession — but they had to know that this sort of thing would come back and bite them.

Jury selection for Couey’s trial, which was moved to Miami when it proved impossible this past summer to seat an impartial jury in Citrus County, is scheduled to begin February 12. Couey is charged with first-degree murder, sexual battery on a child, kidnapping and burglary, and could face the death penalty.

The prosecution’s case essentially consists of:

• The discovery of Jessica’s body
• Blood that matches Jessica’s on a mattress in Couey’s mobile home
• Confessions (not recorded) Couey allegedly made to a prison guard (”I didn’t mean to kill her. I never saw myself as someone who could do something like this”) and to a pair of detectives while they were taking hair samples

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Avis Rent-a-Car, apparently thinking this is a good idea and responding to a need few people knew existed, will be offering Wi-Fi service to its customers: Now you’ll be able to go online with your laptop while driving an unfamiliar car in an unfamiliar city. What can possibly go wrong? Avis will advise drivers not to use the feature while they are behind the wheel — because such warnings work so well for cell phones — and will require customers to sign a waiver agreeing not to hold Avis responsible for any injuries resulting from use of this new technology.

Of course this waiver won’t be binding on passengers or anybody hurt in another car. By the time the lawsuits end, Avis could be #3 and needing to try a lot harder.

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Police in Hartford, Connecticut, have said they will not press charges against a white woman who claimed to have been raped by “a heavyset black man” in a local park, creating fear, stirring up racial tension and causing police to divert additional manpower to the park– then admitted she’d been lying– because she claims she was in fact assaulted by somebody else at a different location, so she’s been “traumatized enough.” If you’re not already shaking your head in wonder, consider that a spokesperson for Connecticut Sexual Assault Crisis Services approves of the decision: “Arresting her would certainly send a signal to other rape victims that they can’t be confident the police will believe them.”

No, it would send a signal to everybody that they can’t lie about being victims; which would be a good thing because once you establish that there’s no consequence for lying, rape victims can be far less confident that the police will believe them.

“As circumstances have evolved in this extraordinary case, we have attempted to balance recognition of the gravity of legal charges with the presumption of your innocence. Now with the approach of a new term, we believe that circumstances warrant that we strike this balance differently. At this point, continued extension of the administrative leave [suspension] would do unwarranted harm to your educational progress” -Larry Moneta, Duke’s vice president for student affairs, in a letter written to said in a letter to Collin Finnerty and Reade Seligmann and released to the public today, inviting them to return as “students in good standing”

See, though, the whole “presumption of innocence” thing is supposed to apply all along, not only when the sole witness has recanted her story, the prosecutor is facing disbarment, and the case against the defendants is circling the drain.(The third defendant, David Evans, has already graduated)

Taxi driver Moez Mostafa, a strong potential witness for Duke University lacrosse player Reade Seligmann, has been arrested on a 2003 warrant. The charge stemmed form his having driven a shoplifter home after she stole 5 purses worth about $250 from a Durham, North Dakota department store. He denied any involvement at the time and in fact helped police find the woman (who subsequently pleaded guilty).District Attorney Mike Nifong says he happened to have come upon the old arrest warrant while gathering background on witnesses. Mostafa’s arrest was not  — not, he says — meant as an attempt to intimidate anybody else who might come forward with information or evidence supporting the defendants’ innocence (Mostafa’s trip records confirm that he picked up Seligmann from the party too early for Seligmann to have taken part in the alleged rape, and Seligmann’s cell phone, ATM and dorm keycard records apparently back up this timetable as well).

The defense has asked that Nifong be removed from the case, citing his hyper-aggressive prosecution, but in fact they’ll be better off if Nifong stays: Any replacement prosecutor will still feel bound to follow through on the case, while Nifong will very likely self-destruct and take the case down with him. Just as Captain Ahab went after the whale, and Captain Queeg went after the strawberries, Nifong is going after the lacrosse players with a zeal that includes overseeing improper photo-lineups, over-use of the media, a rush to judgment that included a promise to continue prosecution even if no physical evidence is found, and now apparently a warning to any future defense witnesses.

All this is not winning him the political popularity he might have hoped for: In the May 2 Democratic primary election, 43% of the voters wanted him to retain his job. This was enough for a narrow win in a three-person race; but a 43% vote for an incumbent in a local election is not by any means a popular mandate.