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Cole Wilkins convicted again.

Cole Wilkins was convicted of first degree murder in connection with a burglary committed in July, 2006. In 2013, the California Supreme Court reversed that conviction based on an incomplete jury charge. See, People v. Wilkins, 56 Cal. 4 (2013). Although the Supreme Court stated that there was sufficient evidence to retry him, recently a lower court dismissed the charge of first degree murder based on the misconduct of the police and prosecutors in the case- the decision does not prevent the state from retrying Wilkins on the charge of murder in the second degree.

On September 6, 2017 the jury deliberated several hours before convicting Wilkins of second degree murder. In California, murder in the first and second degree both require a showing of ‘malice aforethought’.  The malice required for first degree murder may be either express or implied.  In Wilkins’ case, the state had proved implied malice because a death had occurred during the commission of a felony.

The rule of felony murder is a legal doctrine that broadens the crime of first degree murder when a homicide occurs during the commission of a felony. The rule exists in most states and in earlier times applied to the commission of any crime, however trivial. The commission of a crime provides the necessary mens rea, or specific intent, to any unintended and results in murder. Today, the rule is generally applied to dangerous or specifically enumerated crimes in the codes of the various states. The purpose of this rule is to deter felons by providing strict liability for any accidental or negligent death caused during the commission of the crime.

Wilkins committed a burglary at a Menifee, CA job site stealing numerous appliances and fixtures that had recently been purchased for a home under construction. Prior to leaving the area, Wilkins neglected to close the tailgate or secure the large items that were in the back of the pick-up truck he was operating. After travelling about 60 miles, an unsecured stove – stolen from the construction site – fell out of the truck resulting in the death of an off duty deputy sheriff.

Because the negligent act – failure to secure the load – occurred at the scene of the burglary, that act was found to be the proximate cause of the death that occurred 60 miles later.


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Donuts Unite Police and Probationer

Redford Township is a unique and dynamic community located outside of Detroit, Michigan. Facebook and free donuts earned the gratitude of local police after a probationer surrendered himself to them on October 16, 2017. Earlier this month the Redford police received a private Facebook message from 21 year old Michael Zadel: “get 1,000 shares on the [department’s] Facebook post and [he’d] hand himself over, along with donuts and a promise to clean up litter around public schools.” The police accepted the challenge with a public post proclaiming:  “Donuts!!!! He promised us donuts! You know how much we love Donuts!” Within ten days, the department’s post had been shared over 1000 times.

Prior to this post, the Redford police had threatened to block Zadel, known as  “Champagne Torino”, from commenting on the department’s Facebook page because of prior “veiled threats” and “an inability to engage in constructive dialogue.” However, true to his word, Zadel provided the arresting officers with donuts prior to his surrender. The following morning he was sentenced to 39 days in jail and ordered to pay court fees. The court did not order community service.

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Driving safely

Because of the high correlation between traffic stops and felony arrests, police officers in many jurisdictions are advised to vigorously enforce the motor vehicle laws. Routine traffic stops have led to the arrest of, among others, Oklahoma City bomber Timothy McVeigh, serial murderer Ted Bundy, and Atlanta child killer Wayne Williams. David Berkowitz-Son of Sam- was captured as a result of a parking ticket issued to him at the time he committed one of his offenses. Traffic stops regularly result in criminal arrests, drug interdiction, and criminal investigations. In Wren v. United States, 517 U.S. 806 (1996) the Supreme Court held that the violation of any traffic law justifies the brief detention of a motorist even if the officer’s subjective intent was to investigate an unrelated crime. It stands to reason, therefore, that individuals wishing to engage in criminal behavior and avoid detection are well advised to drive in a cautious and lawful manner.

Some motor vehicle offenses are felonious in and of themselves. One such case involved “a contest of speed” between Roshun Jones and Dennis Waidler who prior to September 23, 1999, had never met. Both, however, were fond of cars and each had acquired and restored late model Ford Mustangs. In the late afternoon that day, Mr. Jones initiated the race when he passed the vehicle being driven by Waidler on Route 138 in Jewett City, CT. Both cars then proceeded north on Route 12, a rural secondary highway, towards Plainfield, CT. Offended by the slight, Waidler pulled alongside of Jones, when his passenger, Renee Hasbrouk, made a derogatory remark about Jone’s car-the only words exchanged during the incident. For the next three and one half miles, the two vehicles raced northbound on Route 12 into the town of Plainfield- driving in tandem and passing each other at speeds well in excess of sixty-five miles per hour. Apparently, the only prize offered to the winner of this contest would be bragging rights which, in the end, neither party claimed.

As Waidler and Jones were racing along, Chad Langlois, was turning north onto Route 12 from Toper Road. Waidler, in the lead at the time, slammed on his brakes and swerved into the southbound lane to avoid Langlois’ car. At that same time Ian Cloutier was driving in the southbound lane taking the the twelve year old daughter of his fiance, Jaclyn Cinque to a dental appointment. Because it was a pleasant early fall day, the two had decided to take Ian’s motorcycle. Waidler attempted to return to the northbound lane after passing Langlois car, but struck Cloutier’s motorcycle in doing so. He then lost control of his vehicle which flipped several times ejecting him and his passenger in the process. Although debris from Waidler’s car punctured on of the tires on Jones’ vehicle, he drove almost one-half mile before stopping. When all was said and done, the accident left four dead and one in prison.

Dennis Waidler survived the accident but his girlfriend, Rene Hasbrouck did not. She was killed as a result of injuries sustained in the collision. Several months later, when Waidler learned of his imminent arrest, he committed suicide. Likewise, Ian Cloutier survived the accident but sustained serious brain injuries and the traumatic amputation of his left leg. Following the accident, his life was in shambles; he broke up with his fiance and lost his job. He lived long enough to testify at Jones’ trial but was found dead in his apartment several years later. It was never determined whether his death was suicide or accidental. His passenger, twelve year old Jacyln Cinque, was killed instantly.

After a jury trial, Roshun Jones was convicted of two counts of misconduct with a motor vehicle, racing, assault in the third degree and reckless endangerment and sentenced to ten years in prison. During his interview for the pre-sentence investigation, he told the probation officer that, upon his release, he wanted to race cars for a living.

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Billy Wayne Cope-What would Homer Cummings do?

The presumption of regularity is a convicted felon’s worse nightmare. An accused is innocent until proven guilty – but only before trial. Once convicted, the presumption of innocence is replaced with the presumption of guilt. Reviewing courts assume that the underlying proceeding was conducted in a fair manner and in accordance with the law. The jury’s verdict is near sacrosanct and rarely disturbed on appeal or in any subsequent proceeding. The problem is that sometimes juries make mistakes. Lies are sometimes believed; the truth, likewise, is occasionally obscured or ignored. The appellate courts are not designed to correct this type of error and will rarely substitute their judgment with that of the jury’s. Unfortunately, when errors of this sort are made, the wrongfully convicted have little recourse.

The case of Billy Wayne Cope is one such example. In the early morning hours of November 29, 2001, his twelve-year-old daughter Amanda was brutally raped and murdered in their Rock Hill, South Carolina home. Two men were arrested, tried, and convicted of numerous offenses relating to the death of this child. Cope was convicted of murder, two counts of criminal sexual conduct, criminal conspiracy, and unlawful conduct towards a child. James Sanders was convicted of murder, first-degree criminal sexual conduct, and criminal conspiracy. The South Carolina appellate courts affirmed the convictions of both defendants. State v. Cope, 385 S.C. 274 (S.C. App. 2009); State v. Sanders, 388 S.C, 292 (S.C. App. 2009).

Cope became the prime and only suspect almost as soon as the crime was reported. The police were disturbed by his odd and seemingly emotionless behavior and his improbable explanation as to the cause of his daughter’s death. Cope was questioned by a number of investigators from both the police and social services. Initially, he denied any involvement. The following evening, the police questioned Cope for several hours into the early morning. In the face of continuing accusations, he repeatedly denied any involvement and offered no objection when the detectives requested a DNA sample. Despite his denials, the police continued to accuse him until finally, in an effort to clear himself, he asked the police to give him a polygraph examination. Experts would later disagree as to whether Cope passed this examination; the polygraph examiner, however told Cope he failed. After that, things went down hill very quickly for Mr. Cope. The accusations continued unabated until, according to Cope, he eventually broke down and confessed to the crime. Several more confessions, including a video taped re-enactment followed over the next couple of days.

Unfortunately for Mr. Cope, his claim that the confessions were coerced and untrue were fully litigated in the trial court and decided against him. Because the jury believed these statements, there is no question that the evidence is legally sufficient to support his conviction. Moreover, that conclusion is binding on reviewing courts and will continue to haunt him through any further post judgment proceedings. The problem is that there is a strong possibility that those statements were false and may in fact be innocent.

The most significant problem is the fact the semen found by the police on and in the body of the victim did not contain the DNA of Mr. Cope. Much to the surprise of the police, the semen was that of James Sanders who was later identified by eye witnesses, fingerprints and DNA evidence found in several unsolved sexual assaults in the surrounding area. At no time did Cope in any of his confessions tell the police that any other person was involved in these crimes. Sanders name did not become known until nine months later when his DNA was found in semen and saliva found on the body and clothes of the victim. By that time Sanders had been identified in the assaults; in he of these he had acted alone; in each case entry was made without damage to the point of entry or waking other any other occupants in the residence.

The most disturbing aspect of this case is the conduct of the South Carolina solicitors (prosecutors). The prosecutor plays a special role in a criminal trial. “He is not only an officer of the court, like every attorney, but is also a high public officer, representing the people of the State, who seek impartial justice for the guilty as much as for the innocent. In discharging his most important duties, he deserves and receives in peculiar degree the support of the court and the respect of the citizens of the county. By reason of his office, he usually exercises great influence upon jurors. His conduct and language in the trial of cases in which human life or liberty are at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice, or resentment.” State v. Ferrone, 96 Conn.160 (1921).

Sadly, the prosecutors in this case divorced themselves from their duty as ministers of justice and chose instead to satisfy the public’s demand for vengeance at the expense of a man probably innocent man and to the detriment of the other who is probably guilty. The DNA tests that exonerated Cope and implicated Sanders presented a formidable obstacle to prosecuting either man. Had Cope and Sanders been tried separately, there was a substantial probability that each man would be acquitted leaving a horrific crime un-avenged. convicted. If the confessions are excluded from the equation – either disallowed by the court or not believed by the jury – Mr. Cope would probably be acquitted of the murder and sexual assault charges, and convicted of most, if not all, of the charges that were or could be filed under the general category of neglect.

Likewise, the case against Sanders was problematic. The crime scene investigators were hampered by the admitted filth and chaos of the Cope home – the residence was strewn with trash, swarming with cockroaches, piles of clothing and unwashed dishes. Because the police believed Cope-and no one else – was responsible, they did not look for evidence of an outside intruder. This inadequate investigation, coupled with Cope’s confession to the crime, might have been enough to raise a reasonable doubt as to Sander’s guilt despite the conclusiveness of the DNA evidence.

To resolve the problems presented by this unique factual scenario, the York County Solicitor came up with what has to be considered a brilliant legal maneuver – they charged Cope and Sanders with criminal conspiracy. Although there was no evidence that the paths of these two men had ever intersected before that fateful November night, they glibly asserted that such proof was not necessary. because the evidence showed that both men were guilty; they argued, it must mean that Cope and Sanders did it together. While legally correct, the precise nature of this  folie a deux has not been satisfactorily explained.

This charging decision did solve a number of problems: it allowed the prosecutors to ignore the glaring deficiencies in the police investigation including the uncomfortable suggestion that the police may have extracted a false confession from an innocent man; more importantly it allowed both men to be tried together rather than separately. The court’s decision to try these men deprived both of a fair trial as it effectively conscripted each defendant to act as a prosecutor of the other – substantially easing the burden of the county solicitors and costs of the taxpayers.

In some jurisdictions, the appellate courts would reverse the convictions of both Sanders and Cope. Solicitor Kevin Brackett’s arguments to the jury were clearly improper and designed to distract the jury from the actual facts. It was improper of him to argue that Sanders could not have committed this crime alone and could only have committed it with the assistance of Cope. While the jury did not hear the evidence of Sander’s other crimes, Solicitor Brackett knew that Sanders was quite capable of surreptitiously entering a residence leaving no trace of forced entry and committing this type of crime without waking the other occupants. Brackett also knew that Cope’s two other children were present and there was no evidence that they were awakened during the evening. Instead, he invited the jurors to speculate that these children did witness the event but were too terrified to testify – a dubious proposition considering Cope had been incarcerated for several years by the time of trial.

It is clear that Solicitor Kevin Brackett never seriously considered the possibility that Cope’s confessions were untrue. His closing statement was replete with instances of improper opinion designed to inflame the passions and prejudices of the jurors. He contemptuously dismissed the defense experts claiming they came to South Carolina from other states only to collect a paycheck. Rather than addressing the issues raised, he instead urged the jurors to apply his standards of credibility – standards not authorized by law and clearly inappropriate. He urged the jurors to apply the “Winn-Dixie” test arguing that the credibility of the defense experts should be determined by the likelihood that a juror might bump into them at a local grocery store. He referenced a rule applying to Naval officers in times of combat to improperly argue that a defense pathologist’s testimony should be ignored because he was not present when the autopsy was performed on Amanda’s body. Most egregious however, was the “McCain test” where he argued that no man would confess to the crimes Cope confessed to unless it was true. He invoked the image of Senator John McCain claiming that even after months of torture in a Vietnamese prison camp, McCain and the other prisoners’ never confessed-a claim that is not only highly improper but also patently false.

Cope’s trial was covered by NBC’s Dateline in July 2010. Although he South Carolina solicitors refused to appear on that show, shortly thereafter, they set up a website to correct the impression that Mr. Cope was “railroaded by a justice system that was both corrupt and inept.” That website provides a wealth of information including the trial transcripts and appellate briefs without which an informed decision would be difficult. While there is little doubt that Cope was railroaded, it had nothing to do with an inept judicial system. To the contrary, the solicitors in this case demonstrated enviable skills of advocacy that is prized in the legal profession. No one can seriously argue that the system is corrupt either. There can be little doubt that Solicitor Brackett sincerely believes that Cope and Sanders committed these crimes together; more likely, his failure was in allowing his beliefs to obscure the facts and used his considerable talents to convince the jurors to do likewise.

Most people have never heard the name Homer Cummings. For many years, Mr. Cummings was a distinguished lawyer in the state of Connecticut. He was the founding partner of the Stamford law firm, Cummings & Lockwood, which still exists and bears his name. He was active in politics throughout his life and, from 1933 to 1939, served as attorney general under President Franklin D. Roosevelt. From 1914 to 1924, Mr. Cummings served as the State’s Attorney for Fairfield County. Although he tried and convicted many serious felonies during that time, he is most remembered for a case he did not prosecute.

Harold Israel was arrested for killing a priest on a Bridgeport street corner in February 1924. Father Hubert Dahme was a popular Catholic priest and the community was outraged by the crime. The police conducted an intense search for the perpetrator and a week later arrested Israel. He met the general description of the gunman and, at the time of his arrest, possessed a revolver of the same caliber as the weapon that killed Father Dahme. The case against him was made stronger when seven eyewitnesses identified him as the gunman. Confronted with this evidence, the weak-minded Israel confessed to the crime. He later recanted his confession and maintained his innocence.

Faced with this mountain of evidence, most defense lawyers would have advised Israel to plead guilty in the hopes of avoiding the death penalty. Most juries do not believe evidence that calls into question the truthfulness of a confession and conclude, “he would not have confessed if he didn’t do it.” Most prosecutors agree that false confessions do occur, but argue that they are the exception rather than the rule and usually do not take such claims seriously. Homer Cummings was different. Despite this overwhelming body of evidence – evidence that most prosecutors would accept at face value – Cummings conducted an independent investigation and concluded that Israel was innocent of the crime. In a decision that surprised and angered the local police, Cummings refused to prosecute the case claiming that Israel’s confession was coerced from an exhausted and overwhelmed person of diminished capacity. In a 90-minute presentation to the court he discredited the all of the evidence that the police has amassed against Israel. At the time, Cummings was criticized for his action; today, he serves a role model for prosecutors as a reminder that their duty is ensure that impartial justice is meted out to the guilty as well as the innocent.15TOAu.AuSt.6.jpeg

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Karen Plants Disbarred – Michigan

The criminal justice system is defenseless against the united forces of a corrupt prosecutor and a perjured witness. When the judicial authority knowingly allows this behavior, the rights guaranteed to every citizen are nothing more than the mouthing of platitudes. In 2005, Alexander Aceval and Ricardo Pena were the victims of such a judicial lynching. In those cases, the prosecutor and the trial judge were aware that the investigating officers and one of the witnesses committed perjury – not once – but several times during the pre-trial hearings and the trials of each man. When advised of the perjury, rather than taking actions to correct it, the police, prosecutors, and even the judge conspired to allow this perjured testimony to be used against each defendant.

The testimony concerned the role of a paid police informant. The defendants were told that a confidential informant was used in the investigation leading to their arrests. Only two people could have been that informant – Chad Povish or Bryan Hill. Povish had set up the deal with Aceval. Prior to this investigation he had cooperated in several other investigations and was paid by the police for his cooperation. Povish and his companion were both well known to the officers investigating this case. Yet in sworn affidavits and in subsequent court hearings they claimed that both these men were strangers to the police when the drugs were exchanged and the arrest went down. Neither Hill or Povish where charged with any crimes. In fact, Povish testified at both the preliminary hearing and in the separate trials of Aceval and Pena. Povish testified that he was unaware of the fact that the duffel bag he and Hill were delivering contained 47 kilos of cocaine when in fact he intended to net 10% of the proceeds of the sale.

The prosecutor, Karen Plants, knew this shorty after the arrest. When she asked the arresting officer why Povish and Hill were not charged, she was told that Povish was a paid confidential informant. During the preliminary hearing, the officers and Povish falsely denied any prior relationship. To her credit, Plant informed her supervisor about the perjury and queried an appellate attorney on her ethical obligations. The matter was brought to the attention of the trial judge; however, Plant asked the court, ex parte to overlook this felony based on a belief that Povish would be targeted for retribution if this information was disclosed to the defendants. Later, during the trial of each defendant, she instructed the witnesses how to answer the questions and successfully objected each time the defense attorney attempted to elicit this information. Again, the trial court sanctioned this procedure.

The two defendants were charged with conspiring to deliver 47 kilos of cocaine and tried separately.  Pena was convicted; Aceval’s jury did not reach a verdict. While the appeal was pending, the county attorney disclosed the misconduct, apologized to Mr. Pena and offered him a new trial. Having seen the error of his ways, Pena agreed to plead guilty to a lesser offense and offer testimony against Aceval. While the state’s case was now considerably stronger, Aceval was undeterred, unrepentant, and ready for his second trial. Just as a paranoid person may have real enemies, a perjured witness may also speak truthfully. Chad Povish and the lying police would now confess their sins and testify that while they were untruthful about some facts, they had not lied about others – specifically, that Mr. Aceval was an integral part in the distribution of a large quantity of cocaine.

Mr. Aceval decided to fight fire with fire and employed his own perjured witness. Unfortunately for him, his perjured witness had an epiphany and confessed his sin to the judge and prosecutor during the course of his second trial. In addition to the other evidence, now his own witness would condemn him. Mr. Aceval had little alternative but to change his trial strategy; he pleaded guilty and appealed to the higher courts. While he fought the good fight, prosecutorial misconduct rarely results in a dismissal of the criminal charges. After five years of legal wrangling, his sentence of ten to fifteen years was finally affirmed in December, 2010.

The phrase “corrupt prosecutor” is not entirely accurate. There is nothing in the record to suggest that Karen Plants was motivated by any ill will towards either man or desire for personal gain. In fact, her motive is better described as misguided altruism: she allowed the perjured testimony to protect the safety of a witness. While her motives may not have been impure, her actions were clearly illegal. She, along with the two investigating officers were later charged with conspiring to suborn perjury. Later, she pleaded guilty to felony misconduct in office and sentenced to six months imprisonment.

Ms. Plant’s troubles did not end there. There is no greater threat to the integrity of the judicial system than the use of perjured testimony. The prisons are full of people all too happy to reduce their stay by implicating others in their crime. Sometimes they tell the truth; other times they simply tell the police and prosecutors what they want to hear. While this type of testimony is inherently suspect, all too often prosecutors are simply indifferent to its truth reasoning that it is a matter for the judge or jury to decide. In these cases however, it was clear that Plants knew of the perjury and did everything in her power to make sure the jury did not know the true facts. The local grievance panel, noting her unblemished record and remorse, took pity and only suspended her from the practice of law for two years. Unsatisfied, the grievance administrator sought review with the state Discipline Board which disbarred Plant – the most serious sanction that could be imposed. The Board’s decision is a ‘must read’ by all prosecutors.

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That Dingo didn’t eat no baby!

In any prosecution it is generally permissible for a defendant to introduce evidence that someone other than the accused committed the offense. The evidence is admissible if it establishes a direct connection between a third party and the crime charged. In the early 1980’s Lindy Chamberlain was charged with murder in connection with the death of her nine week old daughter. Her husband, Michael, was also charged as an accessory after the fact for the same offense. The Chamberlains’ defense was that a third party was responsible for the death of their infant daughter, Azaria. The alleged perpetrator in her case, however, was not another human being, but rather a dog-more specifically canis lupus dingo, or dingo, a wild dog native to Australia. The case first drew national attention in Australia and later international fame when Lindy’s ordeal was the subject of a movie A Cry in the Dark starring Merly Streep.

The case has significant parallels to the matter of the West Memphis Three. The parallels are remarkable not because of the similarities, but rather, the dis-similarities as the facts of each case are as diametrically opposed as the respective hemispheres where the incidents occurred. The defendants in the West Memphis Three were three youths; the Chamberlains’ were the parents of three young children. The prosecutor in the West Memphis case argued that the victims were killed as part of a satanic ritual. In the Chamberlain case, an unstated subtext of the police investigation and the prosecution’s case was that the crime was a sacrificial rite committed by religious fanatics-the Chamberlains were both members the Seventh Day Adventists Church. While science was to play a pivotal role in correcting each miscarriage of justice, the Australians acted with relative swiftness, releasing Lindy three years into her prison term and quashing the convictions of each parents two years later (her husband received a suspended sentence). On the northern side of the equator, the West Memphis Three waited over seventeen years before they were begrudgingly released and only after pleading guilty under the Alford doctrine. While Lindy was financially compensated for her wrongful conviction, the West Memphis Three were rewarded with probationary terms following their release. Since Lindy’s conviction, two separate inquiries have been held in an attempt to determine the actual cause of Azaria’s death. To date, the West Memphis prosecutors have done little more than pay lip service to the evidence of third party culpability that exists in those cases. The common theme of each conviction, however, is that ignorance and prejudice were substantial factors that contributed to the verdicts of each trial.

Azaria Chamberlain went missing on August 17, 1980 in the Australian Outback. Her parents, and two brothers, Aiden and Reagan, ages 6 and 4 were on a camping vacation in Uluru the aborigine name for Ayers Rock, a giant red monolith located in the Northern Territory of Australia. On the second night of their stay, several campers heard a low growl followed by a baby’s cry. When Lindy returned to her tent she saw a dingo running off. The tent where her daughter was sleeping was empty; there were dingo paw prints in the area and blood on the bedding inside the tent. Despite an intensive search of the surrounding area, the body of Azaria was never found; a week later, bloody clothing worn by the infant was found near a boulder at the base of Ayers Rock. Although the authorities had received reports of dingo attacks on children only weeks before Azaria’s disappearance, they doubted that a dingo had the strength to carry off the child in the manner described and suspected that the child was murdered by her mother.

At the first inquest, concluded on February, 20, 1981, the coroner, Denis Barritt, found that the child was probably killed by a dingo. However, the authorities, media, and general public were not satisfied and continued to suspect the couple. Bigotry concerning the Chamberlains’ adherence to the Seventh Day Adventists faith-believed by many Australians to be nothing more than a devil worshiping cult- produced a stream of bizarre rumors including the claim that the name Azaria meant “sacrifice in the wilderness”. Later that year, the police searched the Chamberlain’s home and auto in Cooranbong, New South Wales, some 1700 miles from Uluru. During the search, they found what was believed to be blood spatter on the front seat of the family car. Further investigation of the child’s clothing claimed that the tears were caused by scissors rather than an animal. Aided by inept investigation techniques, dubious scientific evidence and harsh public opinion, the Supreme Court for the Northwest Territories quashed the findings of the first inquest and ordered a second. At that hearing, Coroner Gerry Galvin committed Lindy Chamberlain for trial for the murder of Azaria and her husband, Michael, on the charge of being an accessory after the fact.

The prosecution theorized that Lindy, in the space of five to ten minutes, had slashed her daughter’s throat in the front seat of the car, stuffed it into a camera bag and returned to the barbeque area until an opportunity presented itself to blame a dingo for the baby’s disappearance. They further claimed that Chamberlains later buried the body and planted the clothing in the area it was eventually found. The most damning evidence was a contentious forensic report claiming to have found fetal haemoglobin, typically present in infants six months or younger, in the Chamberlains’ car. Years later, further analysis showed the substance to be a combination of baby’s milk and a chemical sprayed during the manufacture of the automobile. Evidence of Lindy’s innocence fell on the jurors’ deaf ears. The un-contradicted evidence of witnesses who observed Lindy to be a devoted and affectionate mother to the baby and her sons was overshadowed by the media created impression left by her apparent coldness in her pre-trial interviews with the press. Evidence that there were dingos sighted in the vicinity of the campground, dingo paw prints leading from the tent, as well as their prior attacks on children was, likewise, ignored. On October 29, 1982, the jury convicted both parents of the offenses.

Ironically, it was the unrelated death of a hiker that led to the exoneration of the Chamberlains. In February, 1986, after the Federal Court and Austrian High Court had rejected their appeals, the police were investigating the disappearance of missing man last seen climbing Ayers Rock. During the course of their search, they found the matinee jacket worn by Azaria near a dingo den and were confronted with the reality that the criminal justice system had failed. A week later, the government of the Northern Territory released Lindy from prison and announced that there would be a new inquiry into Azaria’s death. In the lengthy report issued by Justice Trevor Morling, he discredited much of the original evidence and concluded that the case against the Chamberlains was insubstantial and the verdicts were “unsafe”. Several months later, the government of the Northern Territory enacted special legislation that allowed the Chamberlains to apply to the Criminal Appeals to have their convictions quashed. Finally, on September 15, 1988, the appellate court unanimously quashed the convictions.

A third inquest held in 1995, Coroner John Lowndes returned an open finding, meaning the baby’s death was registered as “cause unknown” – a finding that will likely be overturned by a fourth inquest now underway before Coroner Elizabeth Morris. In that hearing, an investigator testified that between 1990 and 2011 there have been over two hundred documented attacks by dingos on humans including three fatal attacks on children and fourteen other significant attacks. The lawyer assisting the coroner, Rex Wild, a former director of public prosecutions in the Northern Territory, has asked the court to “accept on the balance of probabilities that the dingo theory is the correct one.”

Despite the evidence, there are still those who will continue to believe that Lindy Chamberlain-Creighton (now divorced and remarried) murdered her daughter. It is a sad commentary that the ignorance and prejudices of some allows them to afford a “presumption of innocence” to a wild dog but not to the devoted and loving mother of a newborn. UPDATE June 12, 2012. The coroner has ruled that the cause of Azaria Chamberlain’s death was “the result of being attacked and taken by a dingo.” The death certificate will be changed to reflect this new finding.

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Lex Talionis and a dog named Blue

Prosecutors are not desensitized to the outrage felt by the community when a crime is committed against a defenseless animal. The laws protect this class of victims and the public expects that those who kill, torture or abuse these creatures will be severely punished. In legal history, the canine species is treated differently than other quadrupeds with gentler dispositions. Most law students remember from their tort class the common law axiom that “every dog gets a free bite.” While not entirely accurate, it reflects our understanding that even domestic animals, that are expected to be docile and defenseless, can be vicious and expose their owners to civil and even criminal liability.

Cases involving dogs occupy an inordinate amount of time for the police, prosecutors and courts. Relations between otherwise amiable neighbors quickly break down when a roaming dog tramples flower beds, bites their child, chases their cat, defecates, or incessantly barks at all hours of the day and night. While the owners of these animals may be sued civilly, or even prosecuted criminally, lex talionis, or the law of revenge, is not an uncommon response to this type of nuisance. To their surprise, the perpetrators of such vengeful acts quickly learn that the vigilante is labeled a criminal, not a victim.

One of the rudely awakened in such circumstances was a man by the name of Luis “Carl” Fiochhi. By all accounts, Mr. Fiocchi was a hard working, intelligent and otherwise law abiding man with a problem. He was loved by his wife, daughter, horse, cat, and the twelve silver laced wyandotte chickens that resided with him in the bucolic community of South Glastonbury, CT. It was not so much his problem as that of the chickens. They were being harassed and bothered by Blue, a four year old Brittany Spaniel owned by a neighbor, John Bunker. On several occasions prior to June 23, 1986, witnesses had seen Blue, untethered, engaging in mischievous behavior and maliciously attacking the Fiocchi capons. On the evening of June 23, Mr. Fiocchi, tired of the reign of terror endured by his fowl, ended this problem by shooting the hound three times in the head. While a godsend to the defenseless chickens, it created additional problems for Mr. Fiocchi as he was charged with cruelty to animals, criminal mischief in the third degree and unlawful discharge of a firearm.

Mr. Fiocchi’s problems were compounded by the fact that he was presented on these charges in G.A. 12 in Manchester, CT. At that time, the local prosecutor, Rosita “Bea” Creamer was running roughshod over defendants unfortunate enough to appear in that venue. Now retired, during her long career, she was well known as a tough, hard nosed, uncompromising, and aggressive prosecutor. The defense bar labeled her overzealous-an assessment shared, though not openly, by some colleagues on her side of the aisle. At one point, the Division of Criminal Justice, was obliged to send in reinforcements to deal with the backlog of cases that followed in her wake. The Fiocchi matter was one such case.

A client with principles and deep pockets is a rare and welcome find for a criminal defense lawyer. The beneficiary of this particular bonanza was A. Paul Spinella, a prominent lawyer and the author of the oft cited tome Connecticut Criminal Procedure. Before allowing the state to slap his client on the wrist, he required the taxpayers of Connecticut to pay dearly. Eight impartial citizens were impaneled and took several days from their schedules to patiently listen to the evidence and argue amongst themselves over the defendant’s guilt. Eventually, they convicted him of a single count of unlawful discharge of a firearm. Unhappy with the brief period of probation imposed by the court, he appealed and the taxpayers were again obliged to pay for the defense against his claims of trial error. Three appellate court justices, along with their research clerks, listened to the arguments of counsel and waded through the lengthy briefs before affirming the judgement. The case also required the attention of the Connecticut Supreme Court who reviewed, and denied, the petition of certiorari giving Mr. Fiocchi’s conviction the imprimatur of finality held sacrosanct by the law.

While it is not appropriate for a prosecutor to resolve cases solely on a cost/benefit analysis, it is a factor that cannot be ignored. Prosecutors cannot be expected to fold their tents every time they are confronted with an unyielding defendant that steadfastly maintains his innocence. On the other hand, they should be mindful of the fact that crimes do not occur in a vacuum and make an attempt to understand the motivations that precipitated the conduct. While not privy to any of the pre-trial wranglings, my belief was that the somewhat abrasive and uncompromising nature of both attorneys prevented any resolution of this matter short of trial. With 20/20 hindsight, one can only question whether the costs in terms of dollars and manpower did anything other than provide a measure of job security to those involved in the process.

Unbeknownst to the jury, the factual questions they were charged with resolving were of the type and magnitude of disputes common in a bygone era. Had the trial taken place in a more stately and antiquated courtroom such as New Haven, rather than the relatively modern facility in Manchester, a witness to the proceeding would feel as if he had returned to a time before cars, airplanes, telephones, computers and the other amenities that are now taken for granted-a time before CSI, DNA, and all the other acronyms that litter today’s legal landscape. The witnesses called by the state and defense were common country folk and their colorful testimony reflected the simple values of an earlier time. One witness, when asked of the dog’s reputation in the community responded that “he was a nuisance that had not become a menace yet.” Another, when asked how often she has witnessed the animal roaming stated that she was uncertain but explained that “it was frequent enough that I would say, oh, no, there is that spaniel again.” The jurors were also fortunate to witness two skilled advocates plying their trade in what was a hotly contested affair. Their ultimate decision-convicting the defendant of one charge and acquitting him on the other two-was a testament to the quality of representation provided by each attorney to their respective client.

Mr. Fiocchi may or may not be aware of the fact that his name, now emblazoned in the Connecticut Appellate Reports, has become part of the rich legal history surrounding the complicated relationship that has always existed between man and his four legged friends. His problem, and the solution he employed, were no different than the problems and solutions employed by many others throughout history. When viewed against the backdrop of this history, the published opinion is disappointing and provides little guidance to the practitioner. It has been cited as precedent only seven times since 1989 on issues having nothing to do with the summary execution of canines. Absent from the bland and sterile opinion are the eloquent and turgid prose of earlier decisions. In fact, the court barely addressed the defendant’s claim of justification and focused instead on the more mundane issues popular in criminal appeals of the eighties.

In addressing the justification claim, the appellate court, relying on Connecticut General Statutes, § 22-358(a), held that the killing was justified only if the dog was pursuing or worrying the Fiocchi poultry. Because the trial court had correctly instructed the jury on that defense, and because Blue-the protagonist of this story-had not been in the active pursuit of the fowl, the court found no error. In three sentences, the court dismissed the the defendant’s claim that there was a general non-codified justification defense and concluded that the only recognized defenses were those set out in the general statutes. The did not discuss the competing interests between pet owners and their neighbors that has existed for hundred, if not thousands of years.

From time immemorial, dogs have held their lives at the will of the legislature. As early as 1930 BC, the Mesopotamian Code of Eshnunna recognized the problems caused by these animals and imposed heavy fines on the owners of rabid dogs who bit another person. Under the common law, property in dogs was considered imperfect or qualified in nature. Because the property interest in a dog was considered to be of a base and inferior kind, he was entitled to less regard and protection than other domestic animals, By the mid eighteen hundreds, a number of states, including Connecticut, had enacted statutes allowing municipalities to regulate and tax dogs. In 1875, the legislature authorized both civil and criminal sanctions for the unlawful killing of a dog. In 1897, the United States Supreme Court held that the regulation of these animals was a proper exercise of the state’s police powers. Sentell v. New Orleans & Carrollton Railroad Co.

The Sentell case offers some interesting and prolix observations on the nature of dogs and their owners. At one point the court notes that “although dogs are ordinarily harmless, they preserve some of their hereditary wolfish instincts, which occasionally break forth in the destruction of sheep and other helpless animals. Others, too small to attack these animals, are simply vicious, noisy, and pestilent. As their depredations are often committed at night, it is usually impossible to identify the dog or to fix the liability upon the owner, who, moreover, is likely to be pecuniarily irresponsible.” Later, they state that dogs “are peculiar in the fact that they differ among themselves more widely than any other class of animals, and can hardly be said to have a characteristic common to the entire race. While the higher breeds rank among the noblest representatives of the animal kingdom, and are justly esteemed for their intelligence, sagacity, fidelity, watchfulness, affection, and, above all, for their natural companionship with man, others are afflicted with such serious infirmities of temper as to be little better than a public nuisance. All are more or less subject to attacks of hydrophobic madness.”

Recognition of the dual nature of these animals is replete, and equally prolix, in legal history. The statute relied on in the Fiocchi decision has its roots in colonial times. In 1765, the legislature first adopted “An act for preventing mischief by dogs” (ST. 1769, p.323) which allowed a person to kill “any dog found mad, or suspected to be mad; or otherwise shall be found doing mischief, or attempting to do the same, when alone, out of the possessions of his owner, and distant from the care and command of any person having the charge of such dog”. In our neighboring state, Massachusetts, a similar statute dates back to 1742. The term “mischief” was construed to mean worry, chase, frighten, or annoy either a person or animal thus legitimizing most canine killings including the rather innocuous behavior of sleeping on crops or flowers. Simmonds v. Holmes, 61 Conn.1 (1891). Ten years after the Simmonds case that changed with the Court’s decision in Ford v. Glennon, 74 Conn. 6 (1901).

The victim in Ford was a large, good natured, and jovial St. Barnard with a penchant for chasing cats. In charge of this massive beast, was a petite six year old girl who lost control of the animal when it gave chase to a neighbor’s cat. The cat ran up the stoop of the defendant’s house and sustained minor injuries during the chase. The dog’s attention was diverted by the screams of the defendant’s wife which allowing the cat to leap off the porch and find refuge in a nearby tree. Out of harms way, the cat looked down in fright at the huge animal standing with its forepaws on the tree. The defendant immediately shot and killed the dog rather than attempt to chase him off. The court acknowledged that the dog was clearly engaged in an act of “mischief” when shot. Nonetheless, it concluded that more reasonable and less drastic alternatives were available to the defendant. Several years later, the statute was amended to its present form-replacing the term “mischief” with the requirement that the dog may only be shot if it is pursuing or worrying domestic animals or poultry. The courts have interpreted this statute to prevent the killing of a dog for finished or anticipated misconduct.

There are several lessons to be learned from all this: 1. If you own a dog, do not let him roam or otherwise bother your neighbor. Sooner or later, your neighbor will either shoot you and/or the dog, report you to the police, or sue you. 2. If your neighbor owns a dog, don’t shoot it (or your neighbor) even if you feel justified in doing so. The police will ask a lot of questions. You should not answer as you will probably be arrested no matter what you tell them. 3. Finally, good fences make for good neighbors

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The West Memphis Three

The notion of “due process” is often little more than a speed bump in an overcrowded criminal justice system. Those accused of crimes are expected to admit their culpability and accept the consequences for their behavior. Plea bargaining is an accepted and necessary part of American jurisprudence and, in its absence, the courts would effectively shut down. The majority of criminal defendants are, in fact, guilty of something and, to their credit usually, if not begrudgingly, accept responsibility for their behavior. The legislature and courts provide rewards for doing so in the form of diversionary programs and reduced or suspended sentences. When a defendant claims he is “innocent”, but wants to avoid a trial, the court requires what is called an Alford plea where he acknowledges his understanding that the legal system is designed to grind him into submission and it is in his best interest to accept whatever daily special the prosecutor is offering. The defendant who insists on his day in court is a monkey wrench in this slow grinding process and treated in the same manner one would treat an annoying hemorrhoid.

The government, with its seemingly unlimited resources, will spare no expense to remove this hemorrhoid tissue from society. Those with the resources to adequately defend against the onslaught are cynically accused of using their wealth to manipulate the process; those that are acquitted are vilified for “beating the system”. The public assumes that government resources are being used appropriately and are more likely to direct their ire at those that would defy it than those charged with its administration. Confident of the public’s support, the police and prosecutors often behave like children that have been bestowed with super powers and charged with the task of removing the blight of crime from society. Unfortunately, the gift of infallibility is not a power that can be granted by legislative fiat. Even more unfortunate, is the inability of these bureaucrats to acknowledge this legislative deficiency.

On August 19, 2011, three Arkansas men, Damien Echols, Jason Baldwin, and Jessie Misskelley, collectively known as the West Memphis Three, pleaded guilty under the Alford doctrine to charges stemming from the deaths of three eight-year-old boys. More than most, these men knew the painful and slow grinding process that the innocent must endure in an “infallible” criminal justice system. They had spent more than eighteen years behind bars for these crimes despite the fact that most reasonable people concluded long ago that their convictions were unjust. The american public watched as numerous documentaries disabused the evidence that had established their guilt. That same public witnessed the transformation of these defendants from confused and troubled teenagers into mature, articulate, and intelligent adults. As mature adults, they understood that maintaining their innocence would result in further incarceration; only a guilty plea would bring them the freedom they sought.

The pleas were made possible in November, 2010 when the Arkansas Supreme Court granted the three convicted men the right to present evidence of their innocence in a habeas petition. During their original trials in 1993, the science of DNA (deoxyribonucleic acid) was in its infancy and the juries did not hear that there was no DNA to connect any of these defendants to the crime scene or the victims. While a major victory for the West Memphis Three, the decision meant that they must return to the trial court and present “compelling evidence that a new trial would result in acquittal”-a process that could take years to complete. The prosecutors, knowing that a new trial would likely be granted, offered a deal that would free, and hopefully shut up, the three men and also save the state of Arkansas millions of dollars.

Accepting responsibility for one’s misdeeds can be a costly proposition and the Arkansas bean counters were probably happy with this result. The guilty pleas meant an end to almost two decades of costly litigation and precluded the three from filing wrongful-imprisonment suits for the time they spent in prison. Unlike their counterparts in Arkansas, prosecutors in Illinois admitted their mistake in the case of Thaddeus “T.J.” Jimenez after another man confessed to the murder he had been convicted of. Recently, a federal jury awarded Mr. Jimenez $25 million dollars after he had spent sixteen years in prison for a crime he did not commit. While the specter of civil liability was one factor, the cost of having to retry an eighteen year old case based on tenuous evidence would not sit well with any prosecutor. But there is another cost incurred by society when the innocent are wrongly convicted-a guilty person has been allowed to go unpunished.

It is doubtful the authorities in Arkansas will ever prosecute any other person for the deaths of these children. The DNA evidence that was not available in 1993 did implicate two other people-Terry Hobbs and his friend David Jacoby. Hobbs, the step-father of Steven Branch, was not initially considered a suspect but the evidence against him is compelling to say the least. He has a history of violent and sexually deviant behavior and cannot be eliminated as the source of a hair fiber found in a ligature binding Michael Moore. Additionally, he gave several different accounts of his whereabouts during the time the boys went missing and has no verifiable alibi. Natalie Maines Pasdar, a singer for the Dixie Chicks and supporter of the West Memphis Three, was sued by Hobbs in 2008 for defamation after she publicly reiterated the evidence against Hobbs. The case was a disaster for Hobbs. The previous allegations and innuendo became sworn depositions as Hobbs was required to defend his past behavior, his criminal record and his actions the night the children went missing. Under scrutiny, Hobbs stories became inconsistent and incoherent. The case was dismissed a year later and Hobbs was ordered to pay over $17,000 in legal fees to Pasadar.

Scott Ellington, the current prosecuting attorney, has stated that he would re-examine the case and, if credible evidence was produced, re-open the case. The West Memphis Three are well advised not to hold their collective breaths waiting for any official action. While prosecutors are quick to assign blame, they are reluctant to accept responsibility. History has taught that the best response to claims of “actual innocence” is simply ignore them and hope they go away. Three men have admitted that the state has sufficient evidence to prove their guilt and, under the circumstances, it would be political suicide to initiate a prosecution with a the central theme of “oops, we made a mistake.” The reputations of the police and prosecutors involved are far more important than the rights of the three convicted felons.

It has been said that the best revenge is to live well and towards that end, I can only wish the West Memphis Three a long, happy and prosperous life.

NOTE: Much more has been written and publicized about these cases than I could possibly write. Professor James Elkins, of the West Virginia College of Law has compiled a list of resources concerning this case including the trial transcripts as well as links to the various media reports about the cases. I first became aware of the West Memphis Three in 1996 after watching HBO’s documentary Paradise Lost, The Child Murders at Robin Hood Hills. At that time, while I was not convinced that the boys were factually innocent, I had grave reservations about the proof that had convicted them of these crimes, particularly the evidence against Damien Echols and Jason Baldwin. Jessie Miskelly, Jr., had given the police a statement that implicated Echols and Baldwin as well as himself in these crimes He later recanted this statement and claimed it had been coerced.

Because the statement implicated the other co-defendants, Miskelly was tried first and convicted. Faced with a sentence of life, plus forty years, the prosecutors believed he would testify against the co-defendants in exchange for a reduction of that sentence. It appears that there were negotiations between Miskelly and the prosecution but, for whatever reasons, no deal was made and he was not called as a witness. Without his testimony, and based on my limited knowledge of the case, it was my opinion that while these three probably committed the crimes, I didn’t think the state had proved its case against two of the defendants.

At the time, my view was that this was one of those cases where there was “probable cause” to believe the defendant’s guilt, but not proof “beyond a reasonable doubt”. This is they type of case which should, but usually does not, create an ethical dilemma for a prosecutor. The Rules of Professional Conduct, § 3.8(1), applicable in Connecticut, prohibit a prosecution only where the case is not supported by “probable cause”. Other jurisdictions have adopted the ABA standards which are more stringent and state that a prosecutor should decline prosecution in the absence of “sufficient admissible evidence to support a conviction”. See, ABA, Criminal Justice Standards, § 3-3.9. In applying this standard, appellate courts will view the evidence in a light most favorable to sustaining the conviction. As such, appellate courts are ill equipped to deal with a wrongful conviction based on an error of fact. It simply looks to see if the direct and circumstantial evidence, if believed, establishes each element of the charged crime.

Notwithstanding the legal sufficiency of the evidence, the ABA standards allow a prosecutor to decline prosecution, when he or she has a “reasonable doubt” about the accused’ guilt. This is a gate keeping function where the prosecutor, with regard for the presumption of innocence, is expected to use his or her judgment and examine and weigh all the evidence, whether inculpatory or exculpatory. In this situation, the standard leaves the decision of whether or not to prosecute to the discretion of the prosecutor.

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Rex Fowler – a Scientologist run amuk.

After just two hours of deliberation, a Colorado jury found Rex Fowler guilty of first-degree murder in the slaying of his former business partner Thomas Ciancio. The case was fairly strait forward and the trial lasted only a few days. There was no question that Fowler killed his business partner; the only question was whether the crime was first or second degree murder. The state claimed the killing was premeditated and intentional; Fowler asserted that Ciancio’s death was not intended but, rather, a tragic accident. He maintained that Ciancio interrupted a botched suicide attempt and was killed in the ensuing melee.

As a practical matter, the jury’s verdict made little difference. His conviction of murder in the first-degree resulted in a mandatory sentence of life imprisonment. Had the jury convicted him of second-degree murder, he was exposed to a maximum penalty of forty-eight years incarceration. At age fifty-nine, it is unlikely that his life expectancy would exceed the likely prison term.

The victim, Thomas Ciancio, age 42, was a decent, hard-working and likable man. Married to his high school sweetheart and the father of four young children, he had been the Chief Operating Officer of Fowler Software Design in the Denver area for several years. He resigned in November 2009 after a dispute with the founder of the company, Rex Fowler. The parting of ways was not amicable and each claimed the other owed them money. Finally, Fowler agreed to pay Ciancio approximately $10,000 in severance pay. A meeting was arranged so that the final settlement papers could be signed. Ciancio,  happy to put the matter behind him, met with Rex Fowler for the final time on December 30, 2009.

When Ciancio arrived at the company, he was shown into a conference room adjoining Fowler’s office. After the formalities concluded, Fowler drew a 9-millimeter Glock pistol and fired three shots any of which, would be fatal, into Ciancio’s head. Fowler then turned the gun on himself and fired one shot. Fowler’s aim on this occasion was not so good; the shot did not kill him and he stumbled into the street – alive but seriously wounded. While no one saw the shooting, several witnesses heard the shots and called the police. Initially, it was thought that Fowler was a victim and, believing the gunman to be alive and armed, the SWAT team was dispatched. A couple of hours later, they gained access to the business and discovered Ciancio’s lifeless body.

Ciancio’s murder, and Fowler’s arrest three weeks later, was local news and generally would not have attracted much attention outside the state of Colorado. Fowler’s case, however, became international news when it was learned that he was a scientologist – not just a garden-variety run of the mill scientologist – but an Operating Thetan level number seven (OT 7) – one of the highest and costliest states of spiritual awareness available in the market of spiritual ideas. The glossy promotional pieces used in the church’s direct mail campaign advertise that, by following their copyrighted practices – and at a substantial price – man can attain total spiritual freedom and truth. When one reaches the state of OT, they have the ability, according to the church’s website, to “handle things without having to use a body of physical means” and “handle things without physical support or assistance.” When a man like Fowler – with powers and abilities far beyond those of mortal men – is involved in a murder/suicide attempt, that is something that will attract some media attention. The case was newsworthy, however, not because Fowler possessed some awesome spiritual power unavailable to the impecunious – rather, it drew attention because Fowler, despite having achieved this status, lacked the ability to conform his conduct to even the most basic and fundamental rules of civilized society.

The church of scientology attracts more critics than a stray dog does fleas. Why would a religion that provides the keys to spiritual enlightenment of the magnitude advertised – albeit at a high financial cost -cause so much disconcert among so many people? The most obvious reason is that it does not deliver as advertised. When trying to impress new converts, they claim to be a precise science, while at the same time denying their critics the right to scientifically test their theories. The fact that Rex Fowler discharged a firearm four times and fail in his stated intent to end his own life is a sad testimonial the effectiveness of this religion and a tragic reminder of the injuries that conduct may have on any ‘bystanders’.

Second, there is evidence to suggest that the processes used by the church may, in fact be dangerous. The most noteworthy proof of this claim is the tragic case of Lisa McPherson who died while in the care of the church. As a result of her death, adherents of the religion must now sign a release prior to receiving spiritual counseling from the church.

A final reason for criticism is the church’s ruthless treatment of its critics. The victims of this fraud, after spending years of their time and hundreds of thousands of their dollars, are not allowed to complain without invoking the wrath of church management. Unlike Christianity which preaches that one should “turn the other cheek”, the religious scriptures of scientology command them to “to find or manufacture enough threat against [their enemies] to cause them to sue for peace. Don’t ever defend. Always attack.” Hubbard not only sanctioned, but urged the use of “black propaganda” to “destroy reputation or public belief in persons, companies or nations.” According to the church, this policy, called ‘fair game’, was cancelled in 1968-a claim that is disproven by the large number of documented instances of harassment and black propaganda that follows in the wake of any criticism. It is a reasonable conclusion that the application of fair game tactics remains a cornerstone of scientology practices.

In a decision widely quoted, judge Breckenridge of the Los Angeles Superior Court wrote “ . . .[scientology], under the pretext of ‘freeing humans’ is nothing in reality but a vast enterprise to extract the maximum amount of money from its adepts . . . The organization clearly is schizophrenic and paranoid, and the bizarre combination seems to be a reflection of its founder [L. Ron Hubbard].” Many former adherents agree with this assessment. In recruiting new members, their practices work with scientific precision. They claim they are a religion when they are attempting to justify their tax exempt status, deny their staff members a living wage an avoid government regulation. To their membership, however, they are a business that must charge exorbitant prices for the services they render.

When the critic community learned the facts surrounding Fowler’s arrest, it added fuel to their belief in the corrupt nature of this sect. Ciancio had quit the firm because he was upset that Fowler had taken over $150,000 from the company and donated it to some arm of the church of scientology. This type of unauthorized expenditure – a prosecutor might call it embezzlement – along with the general economic downturn, caused the business to fail. Fowler was clearly despondent over his financial ruin and clearly suicidal.

Critics believed that many of the abusive financial practices of the church would become evidence in the trial. The governing financial policy of scientology is, according to Hubbard, to “MAKE MONEY, MAKE MORE MONEY, MAKE OTHERS PRODUCE SO AS TO MAKE MONEY.” According to former members, the church practices “crush regging” where high-pressure sales tactics are employed and the registrars are directed to: “rob the person of every opportunity to say ‘No’”. This “art of hard sell” is incorporated into the sacred and copyrighted writings of the church. The critics were, however, disappointed; Judge Francis Wasserman, who presided over Fowler’s trial, allowed very little evidence of Fowler’s faith and no evidence of the abusive practices previously alleged – a decision that shortened the trial immeasurably and caused many critics to cry conspiracy. Judge Wasserman’s decision was correct – this evidence, while interesting, had little relevance to the charge of murder.

Fowler and his wife had been dedicated scientologists for several decades; both had attained the revered status of OT. While it is not known how much money the Fowlers donated to the church over this period, by most people’s standards the amount would be staggering. The $150,000 dollar misappropriation apparently was just a drop in the bucket. Earlier in the year, they had sold their home for over a half million dollars. Like many committed scientologists, the Fowlers had financed the ‘Bridge to Total Freedom’ with credit cards, personal loans and mortgages. With the economic downturn in 2008, credit sources dried up and business turned sour.

Fowler was not the only scientologist to be stung by the credit crunch and recession. In May, 2009, Stephen Brackett, a successful contractor, was despondent over his financial troubles and jumped several hundred feet to his death in Monterey, CA. He was also an OT and had contributed over one million dollars to the church. There are a number of other instances of suicides or attempted suicides among OTs; some resulting from the despondency of financial ruin, and others from the psychosis attributed to the harmful practices of the religion. Most, however, do not commit suicide but are left financially ruined by the ‘donations’ made under the constant demands by the church for ‘MORE MONEY’.

By the time of trial, Fowler was indigent and represented by the public defender’s office. It is the Colorado taxpayers that should be outraged by this fact. When stolen money is ‘donated’ to a church by a defendant, it is difficult to comprehend why the church does not have an ethical or legal obligation to return this money.

While he sits in prison, Rex Fowler should reflect on the sad fact that he is just one of many scientologists that can add ‘convicted of a felony’ to what would otherwise be an impressive resume. He follows in the footsteps of the church founder, L. Ron Hubbard, who was convicted, in absentia, of fraud by a French court in 1978. Hubbard was also an un-indicted co-conspirator in the Snow White case an spent the last years of his life in seclusion hiding from the authorities. Operation Snow White has been described as the largest infiltration of the United States government in history. It involved the use of 5000 covert agents who engaged in the illegal wiretapping and theft of government documents. In August 1978, eleven high-ranking scientologists, including Hubbard’s wife, Mary Sue, were convicted of obstructing justice, burglary, and theft of government property. In September 2003, Reed Slatkin, another OT 7 was sentenced to 14 years for fraud, money laundering, and obstruction of justice for his part in a Ponzi scheme that netted him millions of dollars – much of that money ending up in the coffers of the church of scientology. In October 2009, two branches of the church’s operations and several of its leaders were convicted of fraud in a French court. Additionally, there are dozens of other cases involving scientologists – convicted of a wide array of criminal behavior that would serve as a useful primer to students of criminal law.

In November 2009, Nick Xenephon, a member of the Australian Senate, labeled the church of scientology a criminal organization alleging that it engaged in blackmail, torture, violence, labor camps, forced imprisonment, and coerced abortion. He was instrumental in spearheading legislation forming a charities commission charged with ensuring that churches and other charitable organizations are held accountable and satisfy a public benefit test before being afforded charitable status. Such action is long overdue in the United States. After the Supreme Court’s decision in Hernandez v. Commissioner, 490 U.S. 680 (1989) denying the church tax exempt status, the IRS inexplicably did an about face and entered into a number closing agreements with the church in 1993. The details of those closing agreements remained a secret for several years but, at the time, were lauded by church officials as the holy grail – giving them, in the form of tax-exempt status, the legitimization they had long sought after. To this day, the IRS has largely ignored numerous allegations that mirror those made in Australia and failed to revisit the church’s status as a tax-exempt entity – allegations that span decades and include a widespread pattern of abusive behavior and obstruction of justice.Rex-Fowler-shooting

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