What is the proper punishment for shoplifting?  David Warriner, an unemployed man, stole four cans of sardines, shaving cream and razors from a Rite Aid in downtown Spokane, and he was sentenced to 29 months in prison.   See article.  A day later in the newspaper, I read about Father Tim Jones’ opinion on shoplifting.  See article.  Father Tim Jones created a stir by offering the following advice to the desperately poor:

“My advice as a Christian priest is to shoplift…. I do not offer such advice because I think that stealing is a good thing, or because I think it is harmless, for it is neither. …  I would ask that they do not steal from small family businesses, but from large national businesses — knowing that the costs are ultimately passed on to the rest of us in the form of higher prices….”

What would Father Tim Jones say about a 29 month prison sentence for stealing sardines?  Certainly Rite Aid would qualify as one of the “large national businesses.”   Spokane Deputy Prosecutor David Stevens sought the lengthy sentence on David Warriner because of Warriner’s extensive criminal history.   In fact, Warriner was originally charged with Burglary – not because he broke in to Rite Aid, but because he had been asked not go into Rite Aid again, anywhere in the country.  This arguably would meet the elements of burglary under RCW 9A.52.030 which defines the crime as entering a building unlawfully with the intent of committing a crime therein.  David Warriner entered a plea deal down to felony theft second degree, even though the items he stole were just worth $32.

The ethics of what a suitable punishment is for such a crime create an interesting issue.  However, I will leave that for others to debate.  My question is this: Can we as a society really afford to house a man in prison for 2 1/2 years simply for stealing sardines?  Is it good judgment for a public official to decide to expend the State’s resources to punish David Warriner in this manner?  The legislature has been forced to release violent criminals back onto the streets due to budget restraints.  It used to be that inmates only received 1/6 to 1/3 “good time” off their sentence.  Olympia has now been forced to give most inmates 1/2 time off their sentence for good behavior.  When a prosecutor seeks a certain sentence for a defendant, this does not occur in a vacuum.  Any inmate serving 2 1/2 years for stealing sardines is taking up a prison bed that could be used for a dangerous sex offender.  It may be that prosecutor David Stevens had his reasons in this particular case, but I use this instance to discuss the greater problem that I see, prosecutors often not looking a the bigger picture.   (Last month, I blogged about prison sentences and budget cut backs here).   When I looked up the Washington sentencing guidelines, it appears that David Warriner faced a standard range of 22-29 months.  Judge Maryann Moreno had the discretion to sentence Warriner to only 22 months in prison, but decided on a sentence of 29 months.  The Judge explained to Warriner: “Your past history is the reason why you’re going to prison …. We generally don’t send people to prison for this type of crime unless they come in with a history like yours.”  The article did not mention who Mr. Warriner’s criminal defense lawyer was.

What do you think?  Should Judge Maryann Moreno have considered a lighter sentence?  Shoplifting usually receives a punishment of anywhere from a day or two to maybe thirty days.  What about other minor crimes such as fishing without a license, or possession of drug paraphernalia, or public intoxication?  If a person has a lengthy record, should the prosecutor in Spokane County seek to impose the maximum punishment allowed by law?

I read in the Olympian yesterday an article reporting that police had shot to death murder suspect John C. Vu.  The article explained: “A deputy saw Vu and yelled at him to stop, but Vu continued to flee. The deputy fired one shot from his .223-caliber rifle about 3:30 p.m., striking Vu in the rear torso – likely because he was running from the deputy, [Sheriff’s Deputy] Chamberlain said.”

I had to think for a minute what “rear torso” meant.  Why was it that the police did not want to say that the deputy shot Vu in the back?  The law seems pretty clear that if the police goes to arrest a murder suspect and the suspect refuses to stop after being warned, than that officer is entitled under RCW 9A.16.040 to shoot the fleeing suspect.  It was once the law of this country that police officers could shoot any fleeing felon until the U. S. Supreme Court ruling of Tennessee v. Garner.  In that case the court prohibited the use of deadly force unless “the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”

But despite the law, I guess it did not seem very good to say that the police officer shot a man “in the back”.  Vu was a gang member with a felony warrant out of California.  The odd thing about the article is that when it later describes how John C. Vu was wanted for murder, the article describes how Vu killed the man by a inflicting a “gunshot wound to his back.” Shouldn’t the reporter have used the same terminology to describe both shootings?

Is this “rear torso” a phrase we can expect to see in the future?  When I googled the phrase “in the rear torso” + “shooting” or “shot”, this article was pretty much the only instance of when such a phrase was used.

Spokane Attorney Mark Kamitomo represented a woman who claimed to have been the victim of medical malpractice.  The jury disagreed.  Later it came out that the jurors belittled Mr. Kamitomo during deliberations by referring to him as “Mr. Kamikaze” and “Mr. Miyagi” (a character from the film Karate Kid).  One juror said that the jokes about Mr. Kamitomo’s name were almost appropriate because the day was December 7th, i.e. Pearl Harbor Day.

Spokane County Courthouse

The jury deliberations were in private, but one juror, a professor at WSU, came forward to report this to Mr. Kamitomo.  Mr. Kamitomo filed a motion for a new trial, which was granted by Judge Austin, and this decision was affirmed on appeal Thursday.  See article in the Spokesman-Review.

On one hand you have to feel a little bit bad for the doctor who was found to be “not negligent” and who will now have to face a new trial through no fault of his own.  However, there were some comments that the doctor’s lawyers made that have to make you wonder.  First the defense lawyer characterized Mr. Kamitomo as playing the “race card”, and then at the court of appeals, the doctor’s lawyers suggested that the words “Kamikaze” and “Miyashi” are complimentary.   Mr. Kamitomo’s father was interned in a camp during World War II — I am not really sure it is fair to ask Mark Kamitomo to have a sense of humor about this.  Good attorneys should always be prepared to win or lose any case, but if it is clear that juror bias played a role in a decision, the loss should not be just shrugged off.  Trial lawyers always have a heck of a time selecting jurors who will be unbiased.  As a criminal defense attorney, I am often faced with representing a client who is of a different ethnic background then a mostly all-white jury pool.  When you ask the jurors about any biases they have, they usually just stare back at you blankly.   When granting a new trial, Judge  Robert D. Austin explained “people are never forthright with their prejudices … rarely, if ever, will people disclose that.”  I would imagine that it would be quite awkward for a non-white attorney to question jurors about any biases they might have.  Jurors sometimes seem to take offense that they are even being asked questions like that.

In my practice, I sometimes represent Tribal members who are being charged in state court with various crimes.  There is always a concern on my part and the part of the client when we conduct jury selection.   I thought of this the other day when I viewed a video clip of an interview with Jaimee Grubbs.  Jaimee Grubbs allegedly had an affair with Tiger Woods, but the interview largely dealt with her feelings about Native-Americans.  See clip. Jaimee Grubbs grew up in Coulee Dam, a town bordering the Colville Indian Reservation.   She lived in an area where State Courts draw their jurors from.  Jaimee Grubbs characterized the Colville Indian Reservation as “ghetto” and explained: “They get their free money, they drink and that’s all that matters.”   She said that she will never date a Native American man. “They fought, they drank. They are very aggressive….”

Jaimee Grubbs made these comments as part of an audition tape that she did not anticipate would be made public.  How would Jaimee Grubbs have answered the same questions if she were on a jury panel?  Would she have been as forthcoming in a court of law, with an Indian defendant and his family present?

Back to the case with Mark Kamitomo.  Am I the only one who is surprised that the newspapers printed the names of the jurors who allegedly made the racial comments?   Aren’t jurors entitled to a little more privacy about comments that they make during deliberations?  I don’t have any problem with calling out individuals who make such statements publicly, but traditionally the misconduct of jurors is handled with a little more anonymity.  Serving on a jury is compulsory, after all.  Wouldn’t the printing of juror names in this case make it less likely that a potential juror in the future would confess bias during jury selection?  Should Judge Austin have directed the lawyers not to refer to the jurors by name in the court pleadings?

March 2013 Update: The case went to a retrial with a new jury. This time Mark Kamitomo won a verdict of $813,000.00.

At least in Washington State, if a tribal member commits a crime on tribal land, he or she will either be prosecuted in Tribal Court or Federal Court.  In Tribal Court the sentences are generally limited to one year, while in Federal Court the punishments can be up to life in prison.   While the federal punishments are stiff, the federal government rarely takes cases into federal court.  This issue was addressed in an interesting article by K. C. Mehaffey of the Wenatchee World. In the article, the authorities in Nespelem (with the Colville Tribe) are quoted as sharing their frustrations that federal authorities are too slow to take a case federal.  In my experience county prosecutors in Ferry and Okanogan Counties feel the same way, and have felt this way for a long time.  The federal courts just don’t carry the same volume of cases.

A federal court in Arizona raises questions about a Tribe's ability to punish its own members.

For many cases Tribal prosecutors would like to see more than 1 year in jail.  Up until today, I always took it for granted that judges were free to sentence a defendant to one year per count.  I have seen some defendants be sentenced to more than one year for a complaint that alleges more than one offense.   I read a court decision today that suggests that a defendant in Tribal court can only be sentenced to one year total.   I received an email from an attorney who directed me to a post in Turtle Talk , a blog about Indian law and politics.  In this December 16th post, the blog discusses the case of Miranda v. Nielson.  In this case, the defendant Beatrice Miranda brandished a knife and threatened to cut two people.  She was convicted in a trial in Pascua Yaqui Tribal court of eight counts alleging aggravated assault, endangerment, threatening or intimidating and disorderly conduct against two separate victims.  She was sentenced to 910 days in jail (i.e. over one year).  The magistrate interpreted the 1 year maximum in the Indian Civil Rights Act as meaning 1 year per “criminal transaction” no matter how may counts are alleged.  Because a defendant in Tribal Court is protected by the Indian Civil Rights Act rather than the U.S. Constitution, Congress sought to limit the punishments that tribes could inflict.   The court noted that one of the rights that a Tribal member does not have under the Indian Civil Rights Act is the right to an attorney at public expense.   Beatrice Miranda was not represented by an attorney at her trial.

Congress is currently considering enacting the Tribal Law and Order Act which would allow Tribes to begin handing down sentences of up to 3 years in jail.  Much of the motivation seems to be the perceived inability of Tribes to protect Indian women from sexual violence due to jurisdictional problems, see e.g. the Amnesty International article on the subject.  At issue are the rights of the individual tribal member versus the powers of the tribe to self-regulate.  When I read the blog post about the Miranda case on Turtle Talk, I noticed that there was only one comment posted.  The blog is out of Michigan, but the comment was by attorney Brent Leonhard, who served as a public defender with the Colville Tribes around the same time I worked as a prosecutor for nearby Ferry County.  Brent states that he disagrees with the judges decision in the Miranda case that only one year can be imposed.

What does everyone think?  Should a Tribe be able to impose more than one year for a defendant?   If so, does it worry people that Beatrice Miranda did not have the right to an attorney at public expense?  The Colville Tribe does provide an attorney (or spokesperson) at public expense.   Would it be fair to require this of all tribes if Congress allows punishments of up to three years?

Jay McCloskey, a former defender of oxycontin and its manufacturer, is being considered for the position of U.S. Attorney in Maine.  Marianne Skolek and others are raising questions about this.

Before we turn to Jay McCloskey, let’s review where we are on this oxycontin problem in Washington.   We talked in earlier posts about the rash of pharmacy robberies in Washington and how the company that manufactured oxycontin plead guilty to a felony and was fined over $600 million.  Purdue Pharma illegally marketed oxycontin as a safer alternative to percocet and vicodin, and told doctors that oxycontin posed a lower addiction risk than those drugs.   See earlier posts here, and here.   Part of the way that Purdue Pharma’s executives avoided jail time was by paying former prosecutors, like Rudy Giuliani, over a million dollars to go lobby the federal prosecutor that was prosecuting Purdue Pharma.  Another “consultant” for Purdue Pharma was attorney Jay P. McCloskey, who is now under consideration as a potential appointment U.S. Attorney in Maine.  I heard about this story through Marianne Skolek’s column in the Salem-News.com.  Marianne Skolek remembers McCloskey well.  The consideration of Jay McCloskey as a prosecutor is raising eyebrows among people who remember his role in defending Purdue Pharma.

Jay McCloskey used to work as a federal prosecutor in Maine, and witnessed the ravishes of oxycontin on local residents.  But later when hired as a consultant to Purdue Pharma, he defended the company.  See his testimony.  Jay McCloskey suggested the following strategy for defending the company: “You need to have somebody who has clout to get in the door to legitimately make your presentation” (meaning Giuliani apparently)- see story.  The irony of Jay McCloskey defending Purdue Pharma as a criminal defendant wasn’t missed on the local Maine papers who quoted him as saying he had “no regrets”.

By all accounts, Purdue Pharma got off pretty easily in their plea bargain with federal prosecutors.  Even the judge noted this.  Shouldn’t prosecutors strive to treat defendants fairly?  Defendants with better financial resources always seem to do better in this country.  Shouldn’t Jay McCloskey have to explain his position to the people of Maine?

I blogged yesterday (see here) about the discrimination that Haitham Joudeh is facing in North Idaho from inside and outside of the establishment.  His truck was recently vandalized with swastikas.   I mentioned some threats that someone had posted in a comment section of an article in CDApress.com. I guess I was hoping that someone was monitoring this on the weekend and the threat would be removed.  The threat from a local under then alias “idabilly” read:

idabilly wrote on Dec 5, 2009 8:31 AM:

The Klan used hoods to protect their anonymity.  Today the bad apples of North Idaho are anonymously attacking Haitham Joudeh in the comment sections of blogs.

Haitham Joudeh of Coeur d’Alene, Idaho had his truck vandalized Friday.  Haitham Joudeh is a business owner and real-estate developer who is native to Idaho.  Haitham Joudeh is of Middle Eastern descent – the vandalism consisted of the phrase “Go Home Sand Nigger” spray-painted on his truck, along with two swastikas and a slashed tire.  Check out a photo of the damage here and the article here, both from Spokesman-Review.  The Spokesman-Review article kind of hints at some of the background of what Haitham Joudeh has had to face in Idaho, but there is actually more to it.   Haitham Joudeh has been under near constant attack in Coeur d’Alene since he sought zoning approval to build some storage units in Mica Bay.  The local fire district (Mica Kidd Fire District) sought to stop the project and sought to condition the building permit on a requirement that Haitham Joudeh construct a 120,000 gallon water storage unit to prohibit.   Mica Kidd Fire District Chief Robert Crawford announced this new requirement, with a smirk and sarcasm, at a public meeting and drew laughter from the crowd when he predicted that such a requirement would likely be cost-prohibitive for Haitham Joudeh.    Haitham Joudeh alleges that the Fire District and the local grange held anti-Joudeh rallies.  Haitham Joudeh has heard many comments about his religion and his ancestry as he dares to make his living and take public positions.   The county Building and Planning Department actually did not object to the project.  In addition, after a lengthy public hearing where all sides were held, the Hearing Examiner Rebecca A. Zanetti rendered her expert opinion that the project be approved.  The Hearing Examiner studied the facts and the law of the particular case, as was her job.  The problem arose when the county politicians got wind of the anti-Joudeh sentiment in the community.   The politicians were county commissioners Rick Currie, Todd Tondee and Richard Piazza.   The commissioners struck down Haitham Joudeh’s building permit explaining that his project would draw too much traffic.  For those familiar with the rural West, county commissioners are usually pro-growth and constantly defending themselves from conservationists bent on legal challenges.   But when a “middle-easterner” with out-of-town roots proposes a big project, these Idaho private property rights activist types sometimes suddenly turn into Sierra Club types.  No wonder so many locals were confused as to why the commissioners were opposing the project.  [One local asked: ” I’m kinda confused. Most people I hear from don’t want anyone telling them what to do with their property. “My property, my business”..I paid for it, don’t tell me what I can and can’t do with it. I pay taxes. ” Isn’t this what the residents of Mica Flats are doing? Deciding what a property owner can or can’t do? ]

Haitham Joudeh complained that during the rally and the public hearing many negative comments were made about his religion and ancestry.  It is no wonder that Commissioner Rick Currie denied the permit.  He is after all a member of the Mica Grange, the group that allegedly held the anti-Joudeh rally.  Currie boasts of his membership to this group on his re-election website.   Mr. Joudeh’s lawyers raised this issue in a suit, and also pointed out that the commissioners failed to disclose their relationships with members of the Mica Kidd Island Property Owners Association, the most vocal opponents of the project.  The website used to contain links to photos of Commissioner Currie attending events with members of the association.  When you visit the website now of the Mica Flats Grange, you will see them defend this conflict of interest with the following argument: [The applicant claims that because Curry is a Grange member he should not rule on the application. The opposing view is that many elected officials, including judges, belong to Granges.] Well that is a problem too, and as we will discuss below, the judges don’t seem real fair there either.  In addition the Mica Flats Grange should know that their elected commissioner spells his name “C-U-R-R-I-E”.   “Curry” is a word often used to describe Indian food, which I would guess is probably not to popular in Mica Flats.

When Haitham Joudeh sought redress in a local Idaho court, local judge John T. Mitchell said: “You’re making a lot of harsh accusations and you don’t have anything to back it up right now, and that’s frustrating to me….  But you’ve made these accusations against our commissioners, and our commissioners have responded, and you can take all this evidence back down to the commissioners and see what they have to say about that.” This comment really makes me wonder about the judge.  He is supposed to be neutral — why does he refer to the  commissioners as “our commissioners”?  If he works with the commissioners, and they approve his budget, why didn’t Judge Mitchell recuse himself and have a judge from out of town brought in?   How does Judge Mitchell expect discrimination to be proven?  No plaintiff ever comes in on a case with the county commissioners having written in their decision that the permit is “denied due to race” or “denied due to religion.”    Rather the commissioners here overruled their own hearing examiner due to the “increased traffic”, even though the Worley Highway District reported to the county that the project would have “negligible” impact on traffic in the area.  The storage unit would be for high-end items like large boats and RVs.  Just how many times per year is someone going to drive in to pick up their 25-foot yacht?   Answer: Once in the spring and then they return it at the end of the season.

At best this is an instance of a good-old-boy system showing bias against a relative newcomer.  At worst it is the North Idaho of the past — open prejudice of religious and ethic minorities.

Haitham Joudeh has complained about all the racists things said about him online.  A quick review of the problem is that the CDAPress.com doesn’t seem to exercise the proper editorial control over comments submitted on its articles.  The paper gives people who comment the following guidelines:  “No libel (that means no NAME CALLING, OR USING PRIVATE CITIZEN’S NAMES), Use good taste, Be positive whenever possible….  THINK BEFORE YOU POST and ask yourself these questions; Is it a positive remark?  Will I be hurting anyone?” Those sound like good guidelines don’t they?  However these are the comments that are up on today’s story about the spray-paint vandalism that happened to Haitham Joudeh:

• “”I do not agree with what has happened to this man BUT,… I feel this guy brought this on himself. He has cried foul since he got here and I believe people are just plain tired of him.”
• Dollars to donuts that this guy either did this himself or had friends of his do it for him
• majority on here are obviously anti-dark meat
• I’m saying the long necked duck gets the hunters attention.”
• lol hey jim I was wondering when someone would notice the truck “
• Dude didn’t get his way on the Mica Flats deal and pulls the “race and religion card.” No bueno guy- now you’re just asking for trouble, especially with our local “history.” … Trouble finds Dude and he keeps playing the “race and religion card.”  … Trouble fins Dude AGAIN…. perhaps Dude should consider moving to California for the safety of his son.  **Idaho Native [referring to another individual making a post], your comments about the white man are the same type that got Dude in trouble here… sometimes it is better to keep your head low and mouth shut even when you are right. “

Hello CDApress.com?  Can anybody just post whatever they want?  That last comment basically just says that if you are an ethnic minority you better keep your mouth shut if you want to be safe.  That would seem to be an illegal threat that the paper should report to the police along with the commenter’s IP address.  I read a lot of online newspapers, and I just don’t see other papers allowing such statements.  Other papers have a button where you can click “flag for removal” so the comment will be flagged for busy staff to review.  It is not my intent to “blame-the-messenger”, but newspapers need to be careful not to be made unwitting accomplices to those who would seek to run Haitham Joudeh out of town.  During the Jim Crow era of the South, newspapers often were used to whip up mob violence against Blacks and on occasion even announced lynchings in advance.  One more point – as to these cowards who anonymously comment and attack Joudeh – please don’t fool yourself into thinking the commenters  are skinheads or teenagers affiliated with Aryan Nations.  They are likely the same “good citizen” types who hang on the fringe of “civic groups” like the Mica Flats Grange.

In speaking of the suit filed by Joudeh, Commissioner Currie said. “You’re talking about three commissioners that don’t have a racist bone in their body….”    Let’s assume that is true.  But would it be o.k. for the commissioners to deny the permit just because granting it would be politically unpopular or against the wishes of their constituents?  If the will of the people is due to fear of Muslims, or due to xenophobia, should elected officials still do the will of the people?   Commissioner Currie boasts on his re-election site that he is a “4th generation native of Coeur d’Alene [Idaho].”  What if the commissioners were biased against Haitham Joudeh simply because he was a newcomer.  Would that be o.k.?

One commenter to an earlier article said:  “If the commissioners kowtow to this pathetic moron [meaning Joudeh] they cannot expect any respect from any decent citizen around here.”  Haitham Joudeh’s hearing in front of the commissioners was heard in an election year.  At a very minimum the hearing that Haitham Joudeh received on his project was tainted by the conflict of interest that the commissioners had in their association with opposition groups.  The minimum that they should do is grant Mr. Joudeh a re-hearing for his case in front of an impartial body.  The commissioners should appoint a neutral fact-finder.

Haitham is an American, he is a University  of Idaho grad, he is a married man and has a baby boy.  In some online comments Haitham Joudeh has spoke up in his own defense and used his own name.  Look again please at the picture here of Haitham Joudeh standing alone in front of his trashed truck.  He is by himself.  Why are not more people standing up for him?

In Washington, the City of Colville debated whether to remove the police chief position out from under the civil service commission.   Under Washington law, a police chief that is  civil service is no longer an “at will” employee, and can only be removed from his or her position “for cause” and only after a written accusation.   The police chief is then entitled to a hearing in front of the civil service commission to determine if he or she should be removed.   Without this protection, a police chief is at the mercy of the mayor and city council.  One obvious reason why a police chief would want to be protected by civil service rules is that he does not want to be retaliated against for arresting someone who is friends with the mayor or city council.  According to the Statesman-Examiner (see article),  local resident William Emily spoke up at the city council meeting and shared his experience.  He explained that he once worked as the town marshal for Northport, Washington, and explained that during that time he was approached by individual council members and told that there were certain citizens that were not to be bothered and that there were certain laws that were not to be enforced.   I guess the implication is that if a cop’s employment is at the mercy of elected officials, then politics will creep in and taint the principle of equal application of the law.    I think that this is a fair point.  When I worked as a prosecutor, I sometimes worried about police favoritism.  Probably everyone does in smaller towns.

In Colville, the city council voted to keep the position under civil service.   The Statesman Examiner reports council members Eric Ohrtman, Doug Kyle, and Ed Gray voted to remove the position from civil service, but that they were out-voted by Lou Janke, Betty White, Marilyn Haney and Nancy Foll.

Although William Emily made a good point, there are also a lot of city officials who want to make it easier to get rid of police chiefs they have problems with.  In Ferry County,  City of Republic Mayor Elbert Koontz attempted to fire his police chief, and the decision was overturned by the civil service commission.  See story.  In that case, the civil service commission ruled that the Mayor should have taken steps of progressive discipline rather than an abrupt firing.  Any lawyer who represents municipalities will tell the local government to try to build a record of having tried to correct the employee deficiency with written reprimands or short suspensions.   However, it is only human nature to try to avoid these steps and to simply hope that an informal “talking to” will suffice.  Often government employers feel awkward about disciplining an employee then continuing to work with him or her the next day.  These personnel issues in small town governments are always hard.

Another part of the civil service rules is that the commission makes recommendations for hiring.  The rules can be complex.  Earlier this year, Ferry County Sheriff Pete Warner was sued along with Ferry County for allegedly violating the hiring rules in a suit filed in Federal Court.  See story. The jury found the county liable for about $350,000.00.  The suit alleged that Pete Warner engaged in discrimination too.

In Albert Camus’ novel The Stranger, the  narrator, Meursault, is being tried for the murder of a man he encounters at the beach.   At his trial, the prosecutor makes much of Meursault’s demeanor, and the prosecutor focuses on irrelevant information like Meursault’s failure to properly show grief at his own mother’s recent funeral. I read this book back in college and did not understand what Camus was driving at.  However, as a practicing criminal defense attorney, I think of this often whenever the authorities or the news media comment that the accused does not show proper remorse.  I always thought it was basically understood that people grieve in individual and often unpredictable ways.  When I worked as a coroner, I sometimes had the unpleasant task of having to inform people that their family members were dead.   You just never knew what reaction you would get.

A prime example of unfair media coverage on grieving might be the American college student Amanda Knox on trial for murder in Italy.

"I at least have learned to respond to the negativity of my environment as peacefully and calmly as possible..."

The British tabloid Telegraph.co.uk alleged that after Amanda Knox found out her roommate had been murdered, she went out on a shopping spree for lingerie.  See link.  In fact, she had to buy new underwear because the police cordoned off her apartment, and she was not able to get in to retrieve even her personal effects.   Nevertheless, the Telegraph quoted an Italian shopkeep as offering the opinion that she did not show remorse in the right way.  During her trial, an Italian reporter wrote: “Amanda Knox faces life in prison if convicted of killing Meredith Kercher, a British exchange student who was her roommate in picturesque Perugia in central Italy. However, her breezy behavior in hearings over the last three months has set tongues wagging in Italy and abroad.”  Well, the story was picked up by the AP and reprinted in the U.S. – see site and photo.  As you can see from visiting the story Knox is indeed smiling in some of the pictures.  Do people really believe that a defendant will not smile at all during a trial that lasts ten months?  In the photo it is clear that court is not even in session.  I do not view the photographs as inconsistent with what we know about Amanda Knox.  First let’s look at the photographs everyone is talking about:

Now that we have seen the photographs, let’s talk about what we know about Amanda Knox.    Amanda is young and probably like a lot of young people she is capable of being overly optimistic. Amanda Knox very likely believes that being innocent alone will suffice, and that she should just be herself.  I have found that in my practice, the demographic of young/white/suburban/middle-class sometimes brings a naivete to the process.  Poorer people, and sometimes ethnic minorities, will more often recall a negative experience that they or a family member have had with the justice system, i.e. they are aware of the system’s flaws.   It could be that in Amanda Knox’s mind, no amount of prosecutorial misconduct, no amount of sensational news coverage, and no amount of tainted DNA evidence will lead to a break down in the truth finding process.

A second thing to remember is that in most of the pictures Amanda is smiling at the guards.  Although most guards tone it down in court, guards are usually quite talkative with inmates.   This surprises a lot of people, and surprised me when I was a young prosecutor.   This is partly human nature when you spend over a year in close contact with a person.  But additionally,  a guard that gets to know the inmate is practicing good safety.  A guard’s job is dangerous – developing a good read on an inmate and learning his or her baseline or normal behavior, and constantly watching for signs of shifts in mood or mental instability is simply something that is taught in corrections academy.   Look again at the photographs above.  I see in those six pictures what I often see in my practice as a criminal defense attorney.  That is, guards skillfully watching and interacting with a woman in their charge.  And oh yeah, you might notice the guards stifling their smiles a bit more when the cameras come out.  They do that in the U.S. too.

I believe that there are significant cultural differences between the way Americans and Italians view their governments.  Amanda Knox testified at her trial: “I am innocent and I have faith in the Italian legal system.”  To many Italians, this statement (combined with a nonchalant smile in court) is iron clad proof that Amanda Knox is crazy.   Italians, as a whole,  are just not enough naive to say what Amanda said.   But Americans often are – and sometimes we are that way about our own court system too.  In this country, a view of government that is too skeptical is somehow unpatriotic.

Amanda Knox and her family both seem to have a lot faith in the jury.   The best case scenario for Amanda Knox acquits her of all charges and returns her to the U.S. this month.  However, will the same daughter come home that the Knox family sent off over a year ago?   Amanda Knox’s demeanor is probably a comforting sign to her parents Curt Knox and Edda Mellas.

As a former prosecutor I was deeply troubled by Giuliano Mignini’s failure to produce any motive in this case.  Consider the closing argument of the Italian prosecutor.  He surmises that Knox wanted to get back at Kercher (the victim) for saying she was not clean and for calling her promiscuous.  He argued: “Amanda had the chance to retaliate against a girl who was serious and quiet… She had harbored hatred for Meredith, and that was the time when it could explode. The time had come to take revenge on that smug girl.”  See story.  I really have a hard time with that.  What college kid gets along with their roommate perfectly anyway?   Does he really expect a jury to believe that Amanda Knox (who has  no criminal history) stabbed to death her roommate because she was “smug”?   While there are times in our life that we might feel tempted to slap a smug person, Amanda Knox’s record shows no propensity for violence.   Stabbing someone to death is not an “entry level job”; the people who perpetrate such crimes have worked their way up to such deeds by committing school yard fights, animal cruelty,  brandishing weapons, unlawful threats, etc.   Giuliano Mignini described what he called “an unstoppable crescendo of frenzied violence,” “…which began with Knox and Sollecito trying to take off Kercher’s clothes and threatening her.”  See story.   Female on female murder is extremely rare and makes up only 2% of the homicides in this country.  See source.  Giuliano Mignini’s explanation as to motive is pure conjecture, and just does not have the ring of truth.

What do you think about this case?  Do we have prosecutors of this caliber in the U.S.? Think of the college kids that you may know, would you expect them to act much the same way?

In these decks of cards, all 52 are face cards.  Each one bears the face of a victim of an unsolved homicide.  The cards are distributed in prisons with the hopes that an inmate will provide a badly needed tip.

Ernest Jose Cervantes was shot to death during the robbery of his wife's beauty shop in 2003. The beauty shop was closed for Mothers' Day but he and his wife were just returning from selling flowers and balloons on the street for the occasion. The two had finished for the day and were returning the merchandise to the shop when three assailants entered the store.

While it is the high-tech C.S.I. investigation techniques that are featured on TV shows, it is often the low-tech solutions that solve real-life crimes. The idea of these cards apparently comes from the company Effective Playing Cards and Publications. This Florida company has produced cards in 10 states for distribution to inmates.   The company has created thirty different decks and targets the decks to each geographical area.  I received a set in the mail last week that were designed for the San Bernardino area of California.    The cards are created with the support and encouragement of the surviving family members who are glad that the cases are being kept alive and attention is being drawn to the deceased.  No cards exist for Washington State at this time.

In a prison culture where inmates have an abundance of time on their hands, the cards compels attention to the items in ways that a poster could not.  The maker of the cards credit the cards with having solved four different cases across the nation.  One homicide detective explained that distributing the decks is “like interviewing all 2500 inmates about 52 different homicides all at the same time.”

Despite the fact that this idea seems to be of little costs to investigative agencies, it has been a little slow to catch on, and little seems to be known of these cards.  The below youtube video on the subject has been up for over six months, but has received only 68 views. 

In addition to the expense of the cards, there is certainly an expense to sorting out the tips when received from inmates. Inmates are, as a whole, not a very reliable group when it comes to tips. Many could be looking to strike a deal to earn an early release, or could be looking for a way to transform themselves from a societal pariah to a local hero for coming forward. Detectives will look to see if the informant has pertinent information on the case that could not simply be gleaned from reading the newspapers.

Sand Lynn Rollins' body was found in 1995 in a rural area. The card indicates that she was a transient. It appears that the photo used may have been a booking photo where she herself was arrested. Murder victims come from all sorts of different backgrounds, and it is the responsibility of police departments to assure that all cases are given a top priority.

I have learned, in the homicide cases that I have worked on,that in just about every high-profile case you will find attention seekers of all sorts claiming to have important information. Trying to determine the validity of such claims is not as easy as a person might suspect.

The playing cards in question focus on cold cases. Because crimes such as murder do not have a statute of limitations, police maintain an interest in such cases for decades. When I worked as a prosecutor, I often contemplated the value of police work on cold cases. Detectives in Ferry County made important progress in certain cases, see e.g. here. But there also needs to be accountability up the chain of command for time spent on cold cases. In general terms, not necessarily pertaining to my past position, I have feared that police work on cold cases sometimes consisted of having the case file spread out over several desks while a discouraged detective played solitaire. And such work is discouraging. You only need to review past Spokesman-Review articles with respect to the Spokane Serial Killer Task Force to learn how depressing that line of work can be. Big breaks in such cases are rare, and are usually preceded by years or decades of hard work done out of the spotlight. It is not the stuff of C.S.I. or newspaper headlines, but playing cards could, apparently, be a helpful tool in resolving such cases.