History > 2006 > USA > State Justice (II)

Mr. Newton, cleared by DNA evidence, rejoices with relatives upon his release.

Ozier Muhammad/The New York Times        July 5, 2006

Freed by DNA, and Expressing Compassion for Rape Victim        NYT         7.7.2006
http://www.nytimes.com/2006/07/07/nyregion/07rape.html

Court Ruling Clears

Mother in Son’s Suicide

August 29, 2006
The New York Times
By AVI SALZMAN

STAMFORD, Conn, Aug. 28 — The Connecticut Supreme Court on Monday overturned the conviction of a woman who prosecutors said had kept such a messy home that it endangered the safety and mental health of her 12-year-old son, who killed himself in 2002. The case had sparked a national debate over parental responsibility for a child’s suicide.

The case of Judith Scruggs, a single mother from Meriden, and her son, Daniel, was the first in which a Connecticut parent was charged criminally in a child’s suicide, experts said. It also brought national attention to the issue of child bullying after it was revealed that Daniel had been abused repeatedly by his classmates.

The Supreme Court ruled unanimously that prosecutors could not point to “objective standards for determining the point at which housekeeping becomes so poor that an ordinary person should know that it poses an unacceptable risk to the mental health of a child.”

Justice William J. Sullivan wrote the majority opinion, and a separate concurring opinion was signed by two justices.

The ruling reversed Ms. Scruggs’s conviction on one felony count of putting her child at risk by creating an unhealthy and unsafe home. She was sentenced to probation and 100 hours of community service in 2004.

Ms. Scruggs did not return messages left with her lawyer and a friend on Monday, but the friend, Lisa Toomey, said she spoke to Ms. Scruggs after the decision was released and described her as “ecstatic.”

During the trial, prosecutors were careful to separate the charges against Ms. Scruggs from Daniel’s death, noting that they were not seeking to prove that Ms. Scruggs’s conduct led to her son’s suicide. Nonetheless, the trial presented a narrative of Daniel’s misery, which ended on Jan. 2, 2002, when he hung himself in his bedroom closet.

Witnesses testified that Daniel was punched, kicked and spat on in school and that he regularly skipped classes and even defecated in his clothes so he could be sent home.

The Scruggs home was opened up for jurors through photographs and witnesses’ accounts; investigators testified that clothes, household items and debris were piled throughout the house, and that there was no clear surface in the kitchen to eat or prepare food.

One police officer testified that the house smelled like a “dirty clothes hamper” and had “an odor of garbage.” In the closet where Daniel was found, the police found a spear and three long knives.

M. H. Reese Norris, Ms. Scruggs’s lawyer, argued in the trial that Daniel was far more traumatized by his experiences in school than by the mess at home.

A state report later found that Daniel had been let down by numerous agencies, including the state Department of Children and Families, which had closed an investigation into Daniel’s situation just days before he died.

Ms. Scruggs is suing the Meriden school system and the city in connection with her son’s death. That case is pending, lawyers said.

At her sentencing, Mr. Norris described Ms. Scruggs, who is in her mid-50’s, as a struggling single parent who was working 60 hours a week at two jobs when Daniel died. The judge faulted her for failing to show remorse and for blaming her problems on others.

Douglas Nash, who represented Ms. Scruggs in her appeal, said the charges had placed blame where it did not belong.

“All you had here was a cluttered house,” he said.

Ms. Toomey, a business owner from Wallingford who started an anti-bullying advocacy group after reading about Daniel’s suicide, said the Supreme Court’s ruling showed prosecutors had “taken the attention off the root of the problem.”

She said, “She absolutely should not have been charged, because it wasn’t the cause of his suicide.”

Ms. Toomey’s group worked to get legislation passed in the state legislature holding schools accountable for bullying and making it easier for students to report abuse. She said Daniel’s case made parents more willing to speak out about bullying.

Lawyers and legal experts said the court’s opinion would probably not shift precedent in cases in which a parent is accused of neglecting a child’s needs. Still, prosecutors will be hard pressed to charge another parent whose home is unsuitable for children, said Leon F. Dalbec, who prosecuted the case.

“It’s going to be difficult because of this decision,” he said. “It’s got to be really, really bad conditions. It’s got to be so obvious that there would be no other opinion on the matter.”

    Court Ruling Clears Mother in Son’s Suicide, NYT, 29.8.2006, http://www.nytimes.com/2006/08/29/nyregion/29mother.html

Ramsey Case Suspect Cleared After DNA Tests

August 29, 2006
The New York Times
By KIRK JOHNSON

BOULDER, Colo., Aug. 28 — The case against John M. Karr in the 1996 killing of 6-year-old JonBenet Ramsey collapsed Monday when DNA tests refuted Mr. Karr’s claims that he had committed the crime.

The announcement by the Boulder County district attorney, Mary T. Lacy, incited a storm of questions about why Mr. Karr, 41, had been believed in his admissions and how he could have led prosecutors into what became an elaborate global farce. Hordes of reporters had tracked Mr. Karr’s journey, from his apprehension in Thailand nearly two weeks ago to his return to the United States.

In a motion asking a judge to dismiss the arrest warrant, Ms. Lacy wrote that Mr. Karr’s obsession with the case and its details, combined with his own statement of guilt, had compelled her to act first and test later. But in the end, she said, his words were all there was.

“No evidence has developed, other than his own repeated admissions, to place Mr. Karr at the scene of the crime,” she wrote. “Mr. Karr was not the source of the DNA found in the underwear of JonBenet Ramsey.”

The resulting anger, in a case that has produced numerous investigative blunders over the years, was immediate.

“They took this man and dragged him here from Bangkok, Thailand, with no forensic evidence confirming the allegations against him and no independent factors leading to a presumption that he did anything wrong,” Mr. Karr’s lawyer, Seth Temin, said outside the Boulder County Jail, where Mr. Karr was still being held Monday afternoon. “We’re deeply distressed.”

The Ramsey family has been at the center of the story for years, part of that time under suspicion by prosecutors. Patsy Ramsey, JonBenet’s mother, died from ovarian cancer in June at age 49. Her sister, Pamela Paugh, said Monday that the search for the real killer would continue.

“He wasn’t the only name on the list,” Ms. Paugh said of Mr. Karr.

What is next for Mr. Karr is uncertain. He still faces five misdemeanor counts in California of possessing child pornography on his computer. In 2001, he was held in the Sonoma County Jail for six months and then released, with bail waived. When he failed to appear at a court date, the judge issued a warrant for his arrest.

The district attorney in Sonoma, Stephan R. Passalacqua, said in a written statement that Mr. Karr would be extradited back to face those charges.

“We filed this case against Mr. Karr in 2001,” Mr. Passalacqua said, “and the same merits in proceeding with the case then still exist today.”

Although the public defender said earlier Monday that extradition for a misdemeanor case was unusual, Mr. Passalacqua said: “Defendants convicted of possessing child pornography are required to register with local authorities as sex offenders. Mr. Karr should be no exception.”

In her five-page motion to dismiss the case, Ms. Lacy said that Mr. Karr’s interest in young girls, largely revealed in e-mail correspondence and telephone conversations with a University of Colorado journalism professor, Michael Tracey, supported the notion that Mr. Karr’s talk of a personal involvement in the Ramsey killing might have been real.

Under the pseudonym Daxis, Mr. Karr told Professor Tracey that he had been involved romantically and sexually with young girls, that age 6 was his preference, and that he had accidentally killed JonBenet Ramsey by leaving a garrote around her neck longer than he intended, then striking her on the head. Daxis said he wanted the information included in a book that Professor Tracey was intending to publish.

“Daxis provided details of his recollection of how JonBenet died,” Ms. Lacy wrote in the letter, “in a way that supported the conclusion that he firmly believed that he loved JonBenet Ramsey, that he had involved her in sexual activities that included temporarily asphyxiating her and that he had ‘accidentally’ killed her.”

Only after his detention, she said, were investigators able to question people about his past and his whereabouts on Dec. 25 and 26, 1996, the time of the crime. His family in Georgia provided “strong circumstantial evidence” that he had been with them that Christmas.

“In addition,” Ms. Lacy wrote, “no convincing evidence could be found that placed him in or near Boulder.”

In e-mail transcripts released by the district attorney on Monday, Daxis enthused about the crime.

“I DID provide information that only her killer would know,” he wrote. “Furthermore, I provided information that only a person in close proximity to her, within inches, would know. Thank you, Michael. I only wish we would have met on a different note. I await your response to my idea for a book with you.”

Professor Tracey, who has refused to discuss the contents of his e-mail correspondence with Mr. Karr, declined in a brief telephone interview to second-guess the prosecutors or his own role.

“The process took its path, and that’s what the D.A. did,” he said. Asked if he felt the evidence had been adequate to take Mr. Karr into custody, he replied: “I think people are going to see, for example, when the arrest warrant is unsealed. The arrest warrant was 95 pages.” He declined to comment further.

Criminal justice experts said the case demonstrated the difficulties sometimes presented by DNA evidence, even as it becomes a standard of proof in more prosecutions. Rules vary on how and when samples can be taken and on what constitutes consent from a suspect.

“This is an area of law that is very much developing, on what occasions a government can demand the surrender of biological material for DNA analysis,” said Mimi Wesson, a law professor at the University of Colorado.

In her letter to the court, Ms. Lacy said Mr. Karr had twice refused requests after his detention in Thailand to provide cheek swabs for DNA, then later consented at a time when investigators were not expecting it and did not have the necessary kit.

Only after his return to Boulder last Thursday, she wrote, could a search warrant be obtained to get a swab. The testing was completed Saturday and was conclusive.

Katie Kelley contributed reporting from Denver for this article, and Carolyn Marshall from San Francisco.

    Ramsey Case Suspect Cleared After DNA Tests, NYT, 29.8.2006, http://www.nytimes.com/2006/08/29/us/29ramsey.html?hp&ex=1156910400&en=011b20bddccc5198&ei=5094&partner=homepage

One of 2 Charged in Serial Killings Proclaims His Innocence

August 8, 2006
The New York Times
By RANDAL C. ARCHIBOLD

PHOENIX, Aug. 7 — Handcuffed and in black-and-white striped prison clothes, one of two men charged in a series of killings in the Phoenix area shuffled into a jail break room Monday and told reporters that he was innocent and that his roommate may have taken his car and guns to commit the crimes.

“Absolutely not,” said the prisoner, Dale S. Hausner, 33, when asked if he had anything to do with the crimes, which, along with an unrelated series of sexual assaults, robberies and murders in the past year, have cast fear over this city.

Mr. Hausner, a janitor at the city’s international airport and an aspiring boxing photographer, said his two sons had died in a car accident more than a decade earlier and that his 2-year-old daughter was terminally ill, “so I know what it is like to suffer the loss of a child, and I would not want anybody to go through that.”

Mr. Hausner and his roommate, Samuel J. Dieteman, 30, were arrested Thursday and booked Friday on suspicion of first-degree murder and attempted murder in connection with two of the seven killings and 13 of 37 shootings of people and animals over more than a year that the police believe may be linked.

The police said on Monday that they had added the seventh murder to the list, that of a 39-year-old man killed while riding his bicycle in May 2005 in what may have been the first victim of the attacker the police call the Serial Shooter.

The Maricopa County Sheriff’s Department said it had arranged the news conference after Mr. Hausner agreed to speak with reporters. Mr. Dieteman declined requests for interviews, and Mr. Hausner’s appearance was cut short when his public defender arrived and advised him to stop.

But for 15 minutes, Mr. Hausner calmly answered questions and tried to explain away incriminating evidence. The police said Mr. Hausner and Mr. Dieteman had driven around at night taking turns shooting in what the police termed “random recreational violence.’’

Mr. Hausner said he had not confessed to the crimes.

Mr. Hausner said he had kept rifles, ice picks, a blow-dart gun and other weapons in his apartment because “I am a gun collector and I have lots of weapons, as do most Americans.” He said he was disorganized and had left his car keys lying around, making them accessible to Mr. Dieteman.

“He was using my vehicle without my knowledge,” Mr. Hausner said, adding that Mr. Dieteman also had access to the weapons, though “I never saw him as a full-blooded killer.”

When it was pointed out that a video camera at a Wal-Mart showed the two together shortly before an arson there, Mr. Hausner denied any involvement in that crime and others.

Mr. Hausner said he had kept news clippings about the two series of killings because “it is kind of interesting, what is going on in Phoenix.”

An ex-wife’s statement in a divorce filing in 2001 that he had driven her to the desert and threatened to shoot her “is just ex-wife stuff,” he said. Mr. Hausner then attacked her for falling asleep at the wheel of a car in 1994, killing their two sons.

Mr. Hausner said that his brother had introduced him to Mr. Dieteman and that they all had socialized together. Mr. Hausner said he had taken Mr. Dieteman in because Mr. Dieteman had been “down on his luck” and working only now and then as an electrician.

“He is someone with a low-self-esteem problem,” Mr. Hausner said.

The interview was halted when a man who later identified himself as Mr. Hausner’s public defender entered, whispered in Mr. Hausner’s ear and then said, “This news conference is over.”

The man, Garrett Simpson, said that a supervisor in the public defender’s office had just handed him the case and that he had rushed to the jail after learning of the news conference.

“It’s real important to let the process work,” Mr. Simpson said afterward. “We have to remember he is presumed innocent.”

The Phoenix police, meanwhile, sought to remind the public about the other serial killings case, that of someone they call the Baseline Killer. They have linked 23 crimes, including eight killings and several rapes and robberies, to that attacker.

“We don’t want the public to relax in terms of heightened awareness,” Sgt. Andy Hill of the Phoenix police told reporters.

James Alan Fox, a criminologist at Northeastern University in Boston who has studied serial killings, said that several other major cities had at times had two or more serial killers operating at once. Mr. Fox said the two in and around Phoenix, one of the nation’s fastest-growing metropolitan areas, were probably “one symptom of urban growth.”

“When you continue to grow, so do the chances of having had one or more than one serial killer,” he said.

    One of 2 Charged in Serial Killings Proclaims His Innocence, NYT, 8.8.2006, http://www.nytimes.com/2006/08/08/us/08phoenix.html

After 10 Years and Many Turns, Murder Trial Starts in Nashville

August 7, 2006
The New York Times
By THEO EMERY

NASHVILLE, Aug. 6 — It was a warm September day in 1996 when the police arrived at the dead-end street where Perry and Janet March had built their home. Detectives fanned out to search the woods and combed nearby properties for the missing Mrs. March.

The search of the secluded neighborhood on the outskirts of the city turned up no sign of her. Neither did a search of Mr. March’s law office, nor of a remote park.

A decade later, Mr. March, 45, goes on trial this week, accused of murdering his wife, whose remains have not been found. What began as a missing person report eventually sprawled to Mexico from Tennessee in a tangled skein of cases that riveted Nashville, and included an admission by Mr. March’s father that he helped dispose of the body and a murder-for-hire plot to kill Mr. March’s in-laws.

Mr. March has been charged in four cases — three in state court and one in federal court. He was convicted in June in state court of conspiring to kill his wife’s parents, and in April of stealing from his father-in-law’s law firm. He is scheduled to go on trial in October on federal charges related to the murder-for-hire scheme.

Perry and Janet March seemed like a couple bound to make a mark on Nashville. Janet March was an artist and the daughter of a prominent Nashville lawyer, Lawrence Levine. Perry March worked at his father-in-law’s firm.

The young couple bought land in Forest Hills, an exclusive enclave in southern Nashville. There, they built Mrs. March’s dream home.

Things were not always peaceful between the Marches and their neighbors who lived off the cul-de-sac, said Ashton Lackey Jr., who lived with his mother on nearby Crater Hill Road. Mr. March once got into a shouting match with Mr. Lackey’s mother over a minor property dispute, Mr. Lackey said, and would yell at neighbors who ventured up the private road to the house.

“He had a really bad temper,” Mr. Lackey said.

On Aug. 15, 1996, Mrs. March disappeared, leaving behind her husband and their two children, ages 5 and 2. Mr. March reported her missing two weeks later, telling the police that she had just packed her bags and left.

Then Mrs. March’s car was found at a west Nashville apartment complex. The police began treating Mr. March as a suspect, and in September executed search warrants of the home. Dozens of police officers descended on the neighborhood.

“My mouth was wide open when I saw it on the news,” Mr. Lackey said.

The search for Mrs. March dominated the headlines and the nightly news like few other recent cases, and speculation was rampant.

But no body was found. Mr. March moved back to his native Chicago with the children, as his in-laws fought for visitation rights with their grandchildren. In 1999, he moved with the children to Ajijic, Mexico, where his father, Arthur W. March, 78, had a retirement home. Mr. March remarried in 2000.

Over the years, Perry March battled with his in-laws over custody of the children. The Levines, who had filed a wrongful death lawsuit against Mr. March, were awarded $113 million in damages by a jury; the award was later thrown out.

Then, last year, the case blew wide open. The police announced in August that Mr. March had been indicted months before for second-degree murder, abuse of a corpse and evidence tampering. He had been arrested in Mexico and was returned to Nashville.

The case took another turn in October, when Mr. March and his father were charged with trying to hire a hit man to kill the Levines. Arthur March was arrested in January in Mexico, and was returned to Nashville.

In February, the elder March admitted that his son had killed Janet March, and that he and his son had disposed of the body in Kentucky. Under a plea agreement, Arthur March was sentenced to 18 months in federal prison and agreed to cooperate in the case against his son.

Jury selection will begin Monday in Chattanooga; the rest of the trial will be held in Nashville.

Mr. Levine and a lawyer for Arthur March, Fletcher Long, declined to comment, citing a judge’s order prohibiting discussion of the case. William Massey, a lawyer for Perry March, also declined to comment through an assistant.

The Levines have custody of the March children, Samson, 15, and Tzipora, 12.

    After 10 Years and Many Turns, Murder Trial Starts in Nashville, NYT, 7.8.2006, http://www.nytimes.com/2006/08/07/us/07trial.html

Minivan Driver Faces Manslaughter Charges

July 31, 2006
The New York Times
By JULIA C. MEAD

RIVERHEAD, N.Y., July 31 — An East Hampton woman was arraigned this morning on felony manslaughter charges in connection with the death of a retired Roman Catholic priest, who was killed by a minivan as he strolled in the hamlet of Springs. But prosecutors said the woman, who has been accused of driving while intoxicated, may face even more serious charges.

The driver of the minivan, Karen L. Fisher, was charged today with vehicular manslaughter, manslaughter and a host of lesser charges in Suffolk County Criminal Court. Her lawyer entered a plea of not guilty for her. State Supreme Court Justice Robert W. Doyle, who splits his time between the state court and the Suffolk County court, set bail at $250,000.

But the Suffolk County district attorney, Thomas J. Spota, said today that his office was still reviewing evidence and that he anticipated seeking a grand jury indictment on the charge of second-degree murder by depraved indifference.

The police said Ms. Fisher was driving her 2003 Dodge Caravan on Woodbine Drive shortly before 8 p.m. on July 18 when she hit the priest, Msgr. William F. Costello, 79, with such force that his body smashed through the windshield. They said the driver then struck a fence and drove up a neighbor’s lawn, where Monsignor Costello’s body fell to the ground.

The police said Ms. Fisher, 42, of 126 Woodbine Drive, fled to her house less than 100 yards away, where they arrested her a short time later. She was charged in Town Justice Court with leaving the scene of an accident and driving with a suspended license, both felonies, in addition to two misdemeanor counts of driving while intoxicated.

Ms. Fisher was taken to Southampton Hospital, where she was given a blood alcohol test, the police said. She was found to have a blood alcohol content of 0.28 percent, more than three times the legal limit of 0.08, according to Robert Clifford, a spokesman for the Suffolk County district attorney’s office.

Monsignor Costello, who was out for a stroll near his sister’s house when he was hit, was pronounced dead at Southampton Hospital, the police said.

Monsignor Costello spent most of his 54-year career in Nassau County parishes and was named a monsignor in 1998, the same year that he retired, according to the Roman Catholic Diocese of Rockville Centre. He had resided since then at St. Anne’s Church in Garden City.

Ms. Fisher, who is married and has three children, has faced charges of driving while intoxicated before. She was charged the first time in 2003, later pleading guilty to a reduced charge of driving while impaired, the police said. She was arrested a second time last April, and charged with driving while intoxicated and endangering the welfare of a child. The police said she ran her vehicle off the road into the woods while two of her children were inside. That time, her blood alcohol level was 0.31 percent, the police said.

Carla Baranauckas contributed reporting from New York for this article.

    Minivan Driver Faces Manslaughter Charges, NYT, 31.7.2006, http://www.nytimes.com/2006/07/31/nyregion/31cnd-drunk.html?hp&ex=1154404800&en=1e0ad9b9f0f34201&ei=5094&partner=homepage

Op-Ed Contributors

The Insanity Defense Goes Back on Trial

July 30, 2006
The New York Times
By MORRIS B. HOFFMAN and STEPHEN J. MORSE

IN June, the Supreme Court upheld a narrow Arizona test for legal insanity, which asked simply whether mental disorder prevented the defendant from knowing right from wrong. Last week, a Texas jury used a similarly narrow test to decide that Andrea Yates was legally insane when she drowned her five children in a bathtub, allegedly to save them from being tormented forever in hell.

Many scientists and legal scholars have complained that tests like these, used by the law to determine criminal responsibility, are unscientific. Given recent advances in our understanding of human behavior and of the brain, these critics argue, the legal test for insanity is a quaint relic of a bygone era.

These criticisms misunderstand the nature of criminal responsibility, which is moral, not scientific. On the other hand, legislation that has eliminated or unduly constrained the insanity defense, often in response to unpopular verdicts of not guilty by reason of insanity, is likewise off the mark. Between these two attacks, the concept of the morally responsible individual seems to be disappearing.

For centuries we have had a rough idea of the categories of people whom we should not hold criminally responsible. Early cases labeled them “the juvenile, possessed or insane.” The idea was that only people capable of understanding and abiding by the rules of the social contract may justly be declared criminally responsible for their breaches. Someone who genuinely believes he has heard God’s voice command him to kill another does not deserve blame and punishment, because he lacks the ability to reason about the moral quality of his action.

In an effort to hold most people accountable, and recognizing both the difficulty of establishing what was in the defendant’s mind at the time of the crime and the defendant’s incentive to lie about it, the law sought to establish strict standards for responsibility. As a result, legal insanity tests were drawn quite narrowly. They did not excuse most defendants whose intentional conduct broke the law, even if they might have suffered from mental disorders or other problems at the time of the crime.

The rise of various materialistic and deterministic explanations of human behavior, including psychiatry, psychology, sociology and, more recently, neuroscience, has posed a particular challenge to the criminal law’s relatively simple central assumption that with few exceptions we act intentionally and can be held responsible. These schools of thought attribute people’s actions not to their own intentions, but rather to powerful and predictable forces over which they have no control. People aren’t responsible for their crimes: it’s their poverty, their addictions or, ultimately, their neurons.

Lawyers and policymakers brought these academic explanations into the courts and legislatures, many of which responded to the pressure by expanding the doctrines of mitigation and excuse. Predictably, however, the public tired of many of the broader uses of the defense, especially after John Hinckley Jr. was found not guilty for reason of insanity for the attempted murder of President Ronald Reagan and others. Congress responded by adopting a narrow insanity defense, and many states followed suit. Four states have abolished the insanity defense entirely.

Once we agree that there may be some small percentage of people whose moral cognition is seriously disordered, how can the law identify those people in a way that will not allow the materialism of science to expand the definitions of excusing conditions to include all criminals? That is, if paranoid schizophrenia can provide part of the basis to excuse some criminal acts, why not bipolar disorder, or being angry, or having a bad day, or just being a jerk? After all, a large number of factors over which we have no rational control cause each of us to be the way we are.

The short answer is that we should recognize that the criteria for responsibility — intentionality and moral capacity — are social and legal concepts, not scientific, medical or psychiatric ones. Neither behavioral science nor neuroscience has demonstrated that we are automatons who lack the capacity for rational moral evaluation, even though we sometimes don’t use it. Some people suffer from mental disorder and some do not; some people form intentions and some do not. Most people are responsible, but some are not.

Punishing the deserving wrongdoers among us — those who intentionally violate the criminal law and are cognitively unimpaired — takes people seriously as moral agents and lies at the heart of what being civilized is all about. But being civilized also means not punishing those whom we deem morally impaired by mental disorder. Convicting and punishing a defendant who genuinely believed that God commanded him to kill is not unscientific, it is immoral and unjust.

We should be skeptical about claims of non-responsibility. But, if insanity-defense tests are interpreted sensibly to excuse people who genuinely lacked the ability to reason morally at the time of the crime, and expert testimony is treated with appropriate caution, the criminal justice system can reasonably decide whom to blame and punish.

Wrong insanity verdicts are possible, of course, but wrong verdicts are always possible. We should not respond by abandoning a defense that justice requires. A sensible test for legal insanity, fairly applied, can help prevent the concept of the responsible person from disappearing, either because the law naïvely accepts a cacophony of untestable excuses, or because cynical legislators overreact by permitting the conviction and punishment of blameless defendants.

Morris B. Hoffman is a state trial judge in Denver and a fellow at the Gruter Institute for Law and Behavioral Research. Stephen J. Morse is a professor of law and psychiatry at the University of Pennsylvania.

    The Insanity Defense Goes Back on Trial, NYT, 30.7.2006, http://www.nytimes.com/2006/07/30/opinion/30hoffman.html

Ohio Supreme Court Rejects Taking of Homes for Project

July 27, 2006
The New York Times
By IAN URBINA

The Ohio Supreme Court ruled unanimously yesterday that a Cincinnati suburb cannot take private property by eminent domain for a $125 million redevelopment project.

The property rights case was the first of its kind to reach a state’s highest court since the United States Supreme Court ruled last year that municipalities could seize property for private development that public officials argue would benefit the community.

The Ohio decision rejected that view, and is part of a broader backlash. Since the ruling last year, 28 state legislatures have passed new protections against the use of eminent domain.

“This is the final word in Ohio, and it says something that I think all Americans feel,” said Dana Berliner, a lawyer with the Institute for Justice, a public-interest law firm in Arlington, Va., who argued on behalf of the homeowners before the Ohio court. “Ownership of a home is a basic right, regardless of what the U.S. Supreme Court may have decided.”

Since the Ohio case was argued based on the state’s Constitution, yesterday’s decision cannot be appealed to the United States Supreme Court, which decides matters involving federal law.

The United States Supreme Court decision last year made it clear that state constitutions could set different standards for property rights.

“The Ohio decision takes the loophole that was left by the U.S. Supreme Court decision and drives a Mack truck right through it,” said Richard A. Epstein, a law professor at the University of Chicago.

Mr. Epstein said the decision was especially surprising coming from the Ohio Supreme Court, which he said had rarely reached unanimous decisions and had often sided with developers. “But this decision indicates that the justices were entirely distrustful of planning officials and developers working under nebulous criteria.”

The Ohio decision involves the city of Norwood, which moved in 2002 to seize about 70 houses for a project to build offices, shops and restaurants in a neighborhood widely viewed to be deteriorating. Virtually all the property owners sold their land voluntarily, often at prices greatly above their audited value, state officials said. All but three of the houses at the site have been bulldozed.

“We’re just grateful that this is still a constitutional republic,” said Joy Gamble, one of the plaintiffs in the lawsuit against the state. “We raised our children in that home, we lived there for 35 years, and we planned to live out our retirement there.”

Mrs. Gamble said that after being evicted in February 2005, she and her husband, Carl, moved in with their daughter across the Ohio River in Independence, Ky.

“We were nervous because we knew that the same developer who built the mall across from us with help from the city and eminent domain was the one who wanted our land,” said Mrs. Gamble, whose house is one of the three still standing on the contested site. “But in the end, the city and developer took it away and the courts gave it back, which makes you feel like there is real justice.”

In a 5-to-4 decision last year in a Connecticut case, Kelo v. City of New London, the United States Supreme Court ruled that economic development is an appropriate use of the government’s power of eminent domain. That decision gave New London the authority to condemn houses in an aging neighborhood to make way for private development.

The legal debate over eminent domain has not been whether governments could condemn private property to build a public amenity like a park or a highway. That power was established by the Fifth Amendment, provided that property owners are given “just compensation.”

The conflict has been over government attempts to take private homes or businesses for redevelopment projects that at least partly benefit private entities.

Two months after the ruling in June 2005, Justice John Paul Stevens, who wrote the majority opinion, said he was bound by the law and legal precedent. But in responding to criticism, he called the outcome “unwise,” and said that had he been a legislator he would have opposed it.

Ms. Berliner of the Institute for Justice said the Ohio decision was a reaction to the growing use of eminent domain by developers and local officials. Since the Kelo decision, more than 5,700 properties nationwide have been threatened with seizure or have been seized through eminent domain, a threefold increase from the numbers before that decision, she said.

The Ohio decision was a blow to Norwood officials, who hoped to gain $2 million a year in tax revenue through the seven-acre project.

“The city is running one hell of a deficit,” said Mayor Thomas Williams, who predicted that the city would run out of money for its operating budget in October. “We’re just trying to generate enough income to keep our doors open.”

The developer, Jeffrey R. Anderson Real Estate, could not be reached for comment on whether the project would go forward.

The 58-page Ohio decision said that while economic factors may be considered in determining whether governments can take private property, the economic benefit to the government and community cannot be the only justification used for seizure.

“For the individual property owner, the appropriation is not simply the seizure of a house,” Justice Maureen O’Connor wrote. “It is the taking of a home, the place where ancestors toiled, where families were raised, where memories were made.”

The decision said that justifying the seizure by claiming that the area is deteriorating was unconstitutional because the term is too vague.

Christopher Maag contributed reporting from Cleveland for this article.

    Ohio Supreme Court Rejects Taking of Homes for Project, NYT, 27.7.2006, http://www.nytimes.com/2006/07/27/us/27ohio.html

Washington Court Upholds Ban on Gay Marriage

July 27, 2006
The New York Times
By ADAM LIPTAK and TIMOTHY EGAN

In an angrily divided 5-to-4 decision, the Washington Supreme Court yesterday upheld a state law banning same-sex marriages.

The justices issued six opinions in the case, with some in the majority emphasizing that the Legislature remained free to extend the right to marry to gay and lesbian couples.

The four dissenting justices said the majority relied on speculation and circular reasoning to endorse discrimination.

Massachusetts remains the only state that sanctions same-sex marriages. New York’s highest court, by a vote of 4 to 2 earlier this month, upheld state laws limiting marriage to opposite-sex couples. The New Jersey Supreme Court is expected to rule soon on the legality of same-sex marriages there.

Legal scholars said the closeness of the Washington and New York decisions suggested that the legal status of same-sex marriages would remain unsettled and controversial. That alone, they said, represents a significant change in public and judicial attitudes.

When the Washington courts last addressed the question of same-sex marriage in 1974, by contrast, an appeals court unanimously voted against the plaintiffs and the State Supreme Court refused to hear the case.

“You’ve gone in 32 years from something that was more or less a slam dunk to where the court is almost evenly and very bitterly divided,” said William B. Rubenstein, a law professor at the University of California, Los Angeles, and author of “Sexual Orientation and the Law.” “The issue is in play.”

Opponents of same-sex marriage said yesterday’s decision demonstrated that the public and the courts remained opposed to altering the traditional definition of marriage.

“Today is a great day for marriage and the family,” said Mathew D. Staver, the chairman of Liberty Counsel, a group that opposes the legal recognition of same-sex marriages. “We are pleased that this latest attempt by the homosexual agenda to radically redefine our culture has been stopped dead in its tracks.”

The decision consolidated two cases in which state trial courts had struck down a 1998 state law prohibiting same-sex marriages. The cases were brought by 19 gay and lesbian couples seeking the right to marry or to have their marriages from other jurisdictions recognized. State and local laws in Washington protect people there from discrimination based on sexual orientation and provide some benefits to same-sex couples, but the state has no civil-union law.

Beth Reis, one of the plaintiffs, said the decision was a setback for her, her partner, Barbara Steele, and their four children.

“We are saddened that the court has said that my 28-year committed relationship and my children, grandchildren and great-grandchildren aren’t entitled to the same legal protections and obligations as other Washington families,” Ms. Reis said.

The controlling opinion in yesterday’s decision, signed by three justices, reversed the lower court’s, holding that the 1998 law, the Washington Defense of Marriage Act, was supported by rational reasons.

“Limiting marriage to opposite-sex couples,” Justice Barbara A. Madsen wrote in that opinion, “furthers procreation, essential to the survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents.”

In a dissent signed by three other justices, Justice Mary E. Fairhurst questioned the logic of that assertion. “Would giving same-sex couples the same right that opposite-sex couples enjoy injure the state’s interest in procreation and healthy child rearing?” Justice Fairhurst asked.

Justice Bobbe J. Bridge, also dissenting, equated the majority’s position with the endorsement of racial discrimination. The majority, Justice Bridge wrote, contended “that it is not our place to require equality for Washington’s gay and lesbian citizens.” Under that reasoning, she said, “there would have been no Brown v. Board of Education,” the 1954 United States Supreme Court school desegregation case.

Justice Madsen repeatedly emphasized the limited nature of the court’s ruling. All that was required for the 1998 law to pass constitutional muster, she wrote, was some rational basis.

“We see no reason, however,” Justice Madsen added, “why the Legislature or the people acting through the initiative process would be foreclosed from enacting the right to marry to gay and lesbian couples in Washington.”

The justices who signed the controlling opinion said they were sympathetic to the fact that “many day-to-day decisions that are routine for married couples,” including ones involving children, health care and death, “are more complex, more agonizing and more costly for same-sex couples.”

The decision seemed to invite targeted constitutional challenges to the denial of equal treatment to homosexual couples.

Jane Schacter, a law professor at Stanford, said the reaction to the 2003 decision of the Massachusetts Supreme Judicial Court legalizing same-sex marriage there might have left other courts gun-shy about making sweeping rulings.

“There is a real self-consciousness in this decision and the New York decision about the role of the courts,” Professor Schacter said. “We’ve traditionally looked to the courts to buck public opinion to defend liberty and equality, but we’re not seeing that here.”

Gary Randall, the president of the Faith and Freedom Network and Foundation, a Washington religious group, took the opposite view, saying the decision was “a decisive victory that upholds the values of the faith community.”

Two justices in the majority, James M. Johnson and Richard B. Sanders, took a harder line in opposing same-sex marriage in a concurring opinion. There is, Justice Johnson wrote, “a compelling governmental interest in preserving the institution of marriage.”

“This conclusion,” he continued, “may not be changed by mere passage of time or currents of public favor and surely not changed by courts.”

    Washington Court Upholds Ban on Gay Marriage, NYT, 27.7.2006, http://www.nytimes.com/2006/07/27/us/27gay.html?hp&ex=1154059200&en=a12efe7a97e6e4e6&ei=5094&partner=homepage

Yates found not guilty in kids' deaths

Wed Jul 26, 2006 10:35 PM ET
Reuters
By Wendy Grossman

HOUSTON (Reuters) - Texas mother Andrea Yates was found not guilty by reason of insanity on Wednesday in her second trial for drowning her five young children in a bathtub in 2001.

The verdict was a sharp reversal of the one in Yates' 2002 trial when a different jury convicted her of capital murder and sentenced her to life in prison.

Yates, 42, will not go free because of Wednesday's verdict, but will be sent to a state mental hospital for treatment. She will remain there until state District Judge Belinda Hill decides she is sane and safe enough to be released, a process that could take years.

Yates, who is being treated with anti-psychotic drugs, looked stunned and tears welled in her eyes when the verdict was read. She hugged defense attorney George Parnham, who also defended her in the first trial, before she was led away by a court bailiff.

"The right thing was done," Parnham told reporters. "This case is almost a watershed for mental illness and the criminal justice system."

"It's a miracle," tearful ex-husband Rusty Yates said of the verdict. "The prosecution spent five years trying to come up with a motive in this case and missed the most obvious one -- that she was psychotic."

Todd Frank, foreman of the six-man, six-woman jury agreed, saying that while some jurors wanted a finding of guilty, it was impossible not to see that Yates was very ill.

"It was very clear to us all that (the doctors who cared for her) believed she had psychosis before, during and after" the crime, he told reporters.

"I hope this will help to prevent something like this from every happening again," said Frank, a 33-year-old marketing manager.

Yates had to be retried after the 2002 conviction was overturned on appeal because of flawed testimony by the prosecution's star witness.

HISTORY OF MENTAL PROBLEMS

Yates had a history of mental illness and suicide attempts when, on June 20, 2001, she drowned Noah, 7, John, 5, Paul, 3, Luke, 2, and Mary, six months, one by one in the family bathtub while Rusty Yates was at his job at NASA's Johnson Space Center.

Witnesses for the defense said Andrea Yates suffered from a delusion induced by postpartum psychosis that drowning the children would spare them from the devil and damnation.

Prosecutors agreed that Yates was sick but said she was sane enough to know killing the children was wrong.

"We are extremely disappointed with the verdict," lead prosecutor Joe Owmby told reporters.

Yates was being tried for the murder of only three of her children, but Owmby said he would recommend to District Attorney Chuck Rosenthal that he not seek a trial for the other two.

The case became a cause celebre for women's groups and mental health advocates, who said postpartum depression was inadequately treated in many cases.

Betsy Schwartz, executive director of the Mental Health Association of Greater Houston, said the verdict "reflected the growth in public understanding" of mental illness.

"It offers justice to a woman whose severe mental illness was never in question," she said in a statement.

In the first trial, prosecutors sought the death penalty for Yates, a former nurse and high school valedictorian, but the jury gave her a life sentence.

Yates was in prison most of the past four years before her conviction was thrown out because forensic psychologist Park Dietz testified for prosecutors that she might have gotten the idea for the crime from an episode of the television program "Law and Order."

It turned out that no episode similar to the case ever aired. Dietz testified again in this trial but did not repeat his false testimony nor did Hill permit questioning about it.

Rusty Yates divorced Andrea last year and has remarried, but said they remain good friends who speak often of their lost children.

    Yates found not guilty in kids' deaths, NYT, 26.7.2006, http://today.reuters.com/news/newsArticle.aspx?type=domesticNews&storyID=2006-07-27T023535Z_01_N26367901_RTRUKOC_0_US-CRIME-MOTHER.xml&WTmodLoc=Home-C5-domesticNews-2

Judge Dismisses a Connecticut Murder Case After Those Who Saw Shooting Disappear

July 22, 2006
The New York Times
By AVI SALZMAN

Rafael Gomez was shot through the jaw and neck in front of at least six people on a street corner in Bridgeport, Conn.’s rough East End about 4:45 in the morning on Oct. 17, 2003. Bleeding profusely, he staggered 165 feet before collapsing in a pool of his own blood. He was pronounced dead at a local hospital.

Nearly three years later, the case came to trial this week in Superior Court in Bridgeport. But as the prosecutor prepared to put his three star witnesses on the stand on the fourth day of the trial, he ran into a problem. None of them could be found.

As a result, Judge Lawrence L. Hauser dismissed the case against Arlyn Williams, 25, who is in state prison on a drug conviction. He is scheduled to be released in September and cannot be tried again on the murder charge.

Joseph T. Corradino, a senior assistant state’s attorney for the Fairfield Judicial District who tried the case, said he became concerned early in the week that his witnesses would not show up after the police were unable to find them. He said he “tap-danced for the first few days to give us more time” to locate them.

But when Thursday came and the witnesses were still missing, he told Judge Hauser that he could no longer prosecute the case.

“In this city we’ve got an amazing problem with not just witness apathy, but with witness fear,” Mr. Corradino said.

Prosecutors also struggle nationwide to persuade frightened witnesses to testify. The fears are not unfounded. In New York City, for instance, at least 20 witnesses to crimes have been killed since 1980.

Five members of Mr. Gomez’s family had followed the case closely and attended the first three days of the trial. Mr. Gomez’s parents, who were among them, broke down in tears when they heard the news, said Richard Mancini, the victim advocate for the Fairfield district.

“They were crushed,” he said. “Their spirit was almost broken.”

The family did not return a request for comment left with the victim advocate.

On the day of his death, Mr. Gomez had acted as the middleman on a PCP sale in the East End and had argued with local dealers after the drugs turned out to be bad, Mr. Corradino said.

The dispute escalated in front of a grocery store at the corner of Stratford Avenue and Fifth Street, where gun violence is not unusual. A few men attacked Mr. Gomez, Mr. Corradino said, and then one shot him once in the face. Police showed up just a few minutes later, but most of the witnesses had disappeared.

Neighbors who had watched cars peel away were hesitant to talk, Mr. Corradino said. Their fear, he said, “was palpable.”

Further complicating the investigation, Mr. Corradino said a videotape from the grocery store’s security camera had a gap for the period when the murder occurred.

The police nonetheless were able to build a case over the next few months by interviewing local drug dealers.

Three witnesses said Mr. Williams had fired the fatal shot. One even brought in a picture of Mr. Williams that he had cut from his 1999 Harding High School yearbook, according to a police affidavit.

Based on those witness accounts, the police arrested Mr. Williams in September 2004 and charged him with murder, punishable by up to 60 years in prison.

As the trial approached, Mr. Corradino asked the Bridgeport Police Department and its fugitive task force to find the three witnesses and present them with subpoenas. He also put investigators from the prosecutors’ office on the case. They dropped off subpoenas at the witnesses’ last known addresses and questioned people in their neighborhoods about their whereabouts.

But the police and investigators had little success, Mr. Corradino said, and giving them more time would not likely have made a difference.

“I don’t think the outcome would have been different,” he said.

Mr. Corradino was not the only lawyer in the case dealing with reluctant witnesses. Miles Gerety, the public defender representing Mr. Williams, said he had planned to argue that another man killed Mr. Gomez. At least two witnesses had identified that man as the killer, Mr. Gerety said. But one of those witnesses was “absolutely terrified” to take the stand, he said, and in the end, the case was dismissed before he was to testify.

Although Mr. Corradino said he had worked on cases in which witnesses failed to testify, he had never had a trial dismissed because his witnesses could not be located. As of Thursday, the investigation into Mr. Gomez’s death was closed, Mr. Corradino said.

“Any case where the victims don’t come forward is egregious,” he said. “It offends my sense of responsibility as a public servant.”

    Judge Dismisses a Connecticut Murder Case After Those Who Saw Shooting Disappear, NYT, 22.7.2006, http://www.nytimes.com/2006/07/22/nyregion/22bridgeport.html

Psychiatrist says Andrea Yates killed kids to help herself

Posted 7/18/2006 1:28 PM ET
AP
USA Today

HOUSTON (AP) — Andrea Yates drowned her five children in their bathtub because she was overwhelmed and felt inadequate as a mother, not because of any altruistic or religious motive, a forensic psychiatrist testified Tuesday in her murder trial.
"In my professional opinion, Andrea Yates drowned her children to help herself, not to help her children," Dr. Michael Welner told jurors.

He said Yates had become detached from 6-month-old Mary, 2-year-old Luke, 3-year-old Paul, 5-year-old John and 7-year-old Noah and showed no remorse.

No symbols were found at the scene that would suggest a religious motive, and when Yates initially told police she killed the children, she didn't say that she sent them to heaven or was trying to save them from hell, as she later told a jail psychiatrist.

Yates was convicted of capital murder in 2002, but the conviction was overturned by an appeals court that said some erroneous testimony may have influenced jurors. Her retrial traces much of the same ground as the original.

If convicted, Yates will be sentenced to life in prison. If the jury instead sides with her plea of innocent by reason of insanity, she could be committed to a state hospital.

Her attorneys say she suffered from severe postpartum psychosis and meets Texas' definition of insanity: that because of a severe mental illness a person does not know while committing a crime that it is wrong.

However, Welner testified Monday he found 60 examples in his examination of how Yates knew drowning the children was wrong. She filled the tub after her husband left, he said, and removed the bath mat so that the youngsters would have no traction to try and escape.

"Her behavior demonstrates self-discipline, self-control and efficiency in carrying out the drownings of her five children," Welner said as he testified for the prosecution in its rebuttal phase at Yates' second murder trial.

In an excerpt of Welner's videotaped interview with Yates played for jurors, he asked why she had been more determined on that day, June 20, 2001.

"I had made up my mind that I would to it. I just thought it had to be done," she said, adding that it was because of "just the prospect of them growing up to be unrighteous."

When Welner asked what made that day different from other days, she finally answered after a long pause: "I had just — I didn't want them to go to hell."

    Psychiatrist says Andrea Yates killed kids to help herself, UT, 18.7.2006, http://www.usatoday.com/news/nation/2006-07-18-yates_x.htm

Law Officials Say Bouncer Is Indicted in 3 More Deaths

July 13, 2006
The New York Times
By MICHAEL BRICK

A bouncer who was charged with shooting patrons outside a Chelsea nightclub in May, killing one, has also been charged with three killings in Brooklyn, court and law enforcement officials said yesterday.

In a sealed indictment, a grand jury handed up murder charges in the Brooklyn cases against the bouncer, Stephen Sakai, said the officials, who were granted anonymity because the cases were not yet public. Mr. Sakai, 30, is scheduled for arraignment in State Supreme Court in Brooklyn tomorrow.

A lawyer for Mr. Sakai, Edward D. Wilford, said he was not aware of the charges.

“If there’s been a step forward,” Mr. Wilford said, “we will litigate those matters as well.”

In the Chelsea case, Mr. Sakai was arraigned yesterday in State Supreme Court in Manhattan, pleading not guilty to charges of second-degree murder, attempted murder, assault and criminal possession of a weapon. He is accused of firing into a crowd on May 23 outside Opus 22, a dance club at 559 West 22nd Street, killing one man and wounding three others.

In court, prosecutors filed documents providing details of his statements to the police about the Manhattan shooting and the Brooklyn cases.

The cases all relate to Mr. Sakai’s work as a bouncer, both at Opus 22 and at Sweet Cherry, a strip club on the waterfront in Sunset Park, Brooklyn, where Mr. Sakai worked intermittently. Sweet Cherry, a dark place that maddened neighbors, prosecutors and city officials for years, agreed to close last month as part of a broad civil and criminal settlement.

Mr. Sakai’s arrest in May — two months after the unrelated arrest of another bouncer, Darryl Littlejohn, in the killing of a college student, Imette St. Guillen — focused scrutiny on nightclub security, a business largely conducted in cash, without regulation, in the dark and around lots of drunken people.

Detectives were investigating Mr. Sakai in the three killings in Brooklyn in the months before the Chelsea shooting, law enforcement officials have said. The new indictment in Brooklyn accuses Mr. Sakai of killing three men.

One of the men, Irving Matos, 42, was employed by Sweet Cherry as a sort of job broker for bouncers, the man who decided who worked and when. Mr. Matos was found in his apartment on Nov. 16, shot in the head with the television on. Law enforcement officials have said Mr. Sakai and Mr. Matos were in a disagreement over money.

The club was also a hangout for the second victim, Wayne Tyson, 56, who was found stabbed to death in his apartment on Sept. 1.

The third victim, Edwin Mojica, 41, had worked as a bouncer at Opus 22. He was found shot in the back of the head at his home in Williamsburg, Brooklyn, on Nov. 28.

In his statements to the police filed in court yesterday, Mr. Sakai said he knew Mr. Tyson but had not seen him for about a year and thought he had left the city. In a telephone interview, Mr. Wilford, the lawyer, disputed the validity of the statements.

“I don’t think the statements were reliable,” Mr. Wilford said. “I think they were coerced.”

When questioned about the Matos killing, Mr. Sakai said, “Oh, now I guess you are going to put Irv’s murder on me.”

He told investigators he had shot Mr. Matos in the cheek or the leg or maybe someplace else and added: “I got the gun from some guy I know from a club in Brooklyn. He rides a motorcycle. I won’t give you his name, and I don’t want to be a snitch,” the police said.

Then he changed the story, according to the police report, saying that Mr. Matos had actually been shot by someone named Diggum in a fight over a woman.

An assistant district attorney, Joan Illuzzi-Orbon, said in court yesterday that Mr. Sakai had made a videotaped statement confessing to a “shooting spree” outside Opus 22.

In a written statement to the police filed in court yesterday, Mr. Sakai said he was clearing out a party when a patron refused to leave.

“I heard a shot and felt pressure in the back of my head and my head went forward,” Mr. Sakai said in the statement. “My body felt like a tingle from the back of my head all the way down to my legs. I felt like control of my body was not mine. I felt that a bullet was in the back of my head. I started to think about my life, things that I’ve done, things that I wanted to do.”

Mr. Sakai, who was not shot, said he was carrying a gun purchased for $13 and change from a “drug abuser in my neighborhood.”

“I had the gun in my waistband,” he wrote. “I don’t remember taking the gun out of my waistband, although I heard a group of gunshots and voices sounded like they were under water. I don’t remember shooting anyone, and I don’t remember putting the gun back in my waistband. Everything looked black and white and twisted.”

Anemona Hartocollis contributed reporting for this article.

    Law Officials Say Bouncer Is Indicted in 3 More Deaths, NYT, 13.7.2006, http://www.nytimes.com/2006/07/13/nyregion/13bouncer.html

Yates defense expected to finish this week

Updated 7/10/2006 1:17 PM ET
AP
USA Today

HOUSTON (AP) — A videotaped jail interview played for jurors Monday showed Andrea Yates weeping after she told a psychiatrist why she drowned her five children in a bathtub.

"In their innocence, I thought they would go to heaven," Yates told Dr. Lucy Puryear about five weeks after the June 20, 2001, drownings. "I just — since they were so young," she stammered before trailing off and starting to cry.

Puryear, an expert on reproductive-related psychiatric disorders, was called by the defense at Yates' murder trial.

Yates has again pleaded innocent by reason of insanity. If the jury agrees, she could be committed to a state hospital, with periodic hearings to determine whether she should be released. A guilty verdict would mean life in prison. An appeals court overturned her 2002 conviction because erroneous testimony might have influenced the jury.

Her attorneys say Yates suffered from severe postpartum psychosis and did not know that killing 6-month-old Mary, 2-year-old Luke, 3-year-old Paul, 5-year-old John and 7-year-old Noah was wrong.

Court ended at midday Monday because of a scheduling conflict. Testimony resumes Tuesday. Defense attorneys had said they planned to wrap up their case this week.

On Friday, Dr. George Ringholz, a neuropsychologist who evaluated Yates about six months after the children were drowned, told jurors that Yates was suffering from a delusion and thought killing the children was right.

Yates' attorney Wendell Odom said Friday he is not sure whether the defense or state will call Rusty Yates, who divorced Andrea Yates last year and remarried in March.

Rusty Yates, who was sworn in as a witness before the trial began, has repeatedly said he believes Andrea Yates was insane at the time of the killings, and he testified for the defense at the first trial. If the defense calls him this time, it may wait until the rebuttal phase.

Prosecutors say Andrea Yates may be mentally ill but did not meet the state's definition of insanity, because she called 911 to report the crime and later told a detective that she killed the youngsters because she was a bad mother and wanted to be punished.

After the defense rests its case, prosecutors will begin their rebuttal phase.

    Yates defense expected to finish this week, UT, 10.7.2006, http://www.usatoday.com/news/nation/2006-07-10-yates_x.htm

John Evander Couey, 47,
is escorted into the Lake County Judicial Center in Tavares, Fla., for the first day of jury selection in his trial.
Couey is accused of kidnapping, raping and killing 9-year-old Jessica Lunsford.

By Stephen J. Coddington, AP

 Jury selection begins in Lunsford murder trial        UT        10.7.2006
http://www.usatoday.com/news/nation/2006-07-10-lunsford-case_x.htm

Jury selection begins in Lunsford murder trial

Updated 7/10/2006 5:37 PM ET
AP
USA Today

TAVARES, Fla (AP) — Potential jurors were questioned for the first time Monday for the murder trial of a convicted sex offender accused of kidnapping, raping and killing 9-year-old Jessica Lunsford.

John Evander Couey, 47, appeared in court wearing a gray suit as officials began preliminary questioning of a pool of 284 potential jurors. Jessica's father, Mark Lunsford, sat in court behind the prosecutors' table, across the courtroom from Couey, a former neighbor.

The girl's disappearance and the discovery of her body in March 2005 prompted tougher laws for sex offenders, shocked and outraged residents of rural Citrus County and was chronicled by news outlets nationwide.

Because of the pervasive publicity in the county, state Circuit Judge Ric Howard moved jury selection to Tavares in Lake County, northwest of Orlando.

Couey is charged with first-degree murder, sexual battery, kidnapping and burglary. He has pleaded not guilty, although investigators say he admitted to the crimes. Prosecutors will seek the death penalty if he is convicted.

Before beginning jury selection, Howard ruled that defense attorney Dan Lewan could not question Mark Lunsford about his finances or introduce evidence of pornography found in the delete bin of a computer in his home after his daughter disappeared.

Howard also said he would decide later on a motion by Lewan to keep the jury from seeing photographs of Jessica's body. Lewan said the photos are "difficult to look at" and would be prejudicial.

The state's job to convict Couey was made more difficult when Howard ruled June 30 that his taped confession could not be used as evidence in the trial because investigators had ignored his requests for an attorney.

Howard ruled, however, that prosecutors can still use the discovery of Jessica's body buried outside the mobile home where Couey had been living, as well as a bloody mattress from the mobile home that has Jessica's DNA on it.

Other incriminating statements he made later to investigators and a jail guard also can be used during the trial. Prosecutors say they are confident they have enough evidence to convict him.

Jessica was found March 19, 2005, buried with her stuffed dolphin behind the mobile home, which was across the street from her house in Homosassa. She had been kidnapped from her bedroom three weeks earlier. The day before her body was found, Couey had told investigators where to look.

The third-grader was alive when she was buried in garbage bags with her hands bound by speaker wire, an autopsy found. The medical examiner ruled she died of asphyxiation.

Outrage over Jessica's slaying prompted the Florida Legislature to pass a bill establishing a mandatory sentence of 25 years to life behind bars for people convicted of certain sex crimes against children 11 and younger, with lifetime tracking by global positioning satellite tracking after they are freed. At least 11 other states have followed suit.

Since his daughter's death, Mark Lunsford has become a somewhat reluctant but nationally recognized advocate for tougher legislation to keep track of convicted sex offenders.

But it becomes intensely personal for him again this week.

"I want to see the person who murdered my daughter be found guilty and be given the death penalty," he said earlier.

    Jury selection begins in Lunsford murder trial, UT, 10.7.2006,http://www.usatoday.com/news/nation/2006-07-10-lunsford-case_x.htm

Evan Savoie enters a Grant County Superior Courtroom in Ephrata, Wash.
Savoie was sentenced Monday to more than 26 years in prison
for beating and stabbing a playmate to death three years ago

By Don Seabrook, The Wenatchee World via AP        USA Today
Washington teen sentenced for killing playmate        UT        10.7.2006
http://www.usatoday.com/news/nation/2006-07-10-playmate-stabbing_x.htm
 
 

Washington teen sentenced for killing playmate

Posted 7/10/2006 9:58 PM ET
AP
USA Today

EPHRATA, Wash. (AP) — A boy convicted as an adult of stabbing a playmate to death when he was 12 years old was sentenced Monday to the maximum 26 years in prison.

A jury convicted Evan Savoie, now 15, of first-degree murder for the 2003 stabbing death of 13-year-old Craig Sorger, who was developmentally disabled.

Savoie's attorneys have said they will appeal the verdict.

Savoie has repeatedly proclaimed he is innocent. He said Craig fell from a tree while they were playing and that he left him injured — without a pulse — on a trail but didn't kill him.

The prosecution said the victim had been beaten and had 34 stab wounds.

Prosecutors alleged Savoie had planned the killing. They told jurors he had blood on his clothes, access to knives, and lied to investigators, at one point deliberately leading searchers away from Sorger's body but later admitting that.

Savoie showed no reaction as the sentence was read, but he smiled when he was led from the courtroom in handcuffs.

"Somebody is going to have to figure out how a 12-year-old can be so violent so young," Grant County Superior Court Judge Ken Jorgensen said as he imposed the maximum sentence.

The Sorger family had pushed for the maximum sentence.

"In your worst nightmare, you never believe this could happen to you," the victim's mother, Lisa Sorger, wrote in a letter read to the court.

The key to the prosecution's case was the testimony of Jake Eakin, another playmate who pleaded guilty last year to second-degree murder by complicity. He is serving 14 years in prison.

Eakin led investigators to the murder weapon and identified Savoie as the killer. On the witness stand, he described the brief attack in wrenching detail, saying Sorger repeatedly cried out: "Why are you doing this to me?"

    Washington teen sentenced for killing playmate, UT, 10.7.2006, http://www.usatoday.com/news/nation/2006-07-10-playmate-stabbing_x.htm

In Bronx Murder Case, Use of New Terrorism Statute Fuels Debate

July 8, 2006
The New York Times
By TIMOTHY WILLIAMS

For the past three years, a 24-year-old construction worker named Edgar Morales has been in jail, awaiting trial on murder and terrorism charges that could send him to prison for life. Mr. Morales, however, does not belong to Al Qaeda or Hamas.

Instead, prosecutors say, he is a member of the St. James Boys, a group of recreational soccer players who formed a street gang that terrorized the Mexican and Mexican-American population of the west Bronx for several years and killed a 10-year-old girl in 2002.

When the case — which is making its way through State Supreme Court in the Bronx — comes to trial this summer, Mr. Morales will be the first person tried under the state's 2001 antiterrorism statute. His case is being monitored by both conservative and liberal legal groups to see how the apparently novel use of the statute plays out, with some raising concerns.

"In our system, we balance two concerns: security and liberty," said Ronald D. Rotunda, a professor at George Mason University and a senior fellow at the Cato Institute. "When laws are used in ways in which they are not intended, the balance is broken."

The Bronx district attorney, Robert T. Johnson, says the law is an apt tool in his effort to prosecute violent street gangs.

"The obvious need of this statute is to protect society against acts of political terror," Mr. Johnson said in a statement. "However, the terror perpetrated by gangs, which all too often occurs on the streets of New York, also fits squarely within the scope of this statute."

At least 36 states approved antiterrorism laws in the weeks and months after the Sept. 11 attacks; in Virginia, prosecutors used that state's antiterror law to get a verdict of death against John A. Muhammad, who was convicted of masterminding 16 sniper shootings in the Washington area in 2002 that killed 10 people.

When the New York statute was passed by the State Legislature and signed into law by Gov. George E. Pataki within six days of Sept. 11, some of the lawmakers who voted for the bill said they thought it would never be used, given that prosecuting terror suspects had traditionally been the domain of the federal government.

"It was meant to deal with terrorism," said Assemblyman Jeffrey Dinowitz, a Bronx Democrat who voted for the bill. "We were talking about Osama bin Laden, not gang members."

State Senator Michael A. L. Balboni, the Long Island Republican who sponsored the legislation, said he had envisioned "mass effect" cases of terrorism like the World Trade Center attack and the Oklahoma City bombing in 1995 when he submitted the bill.

Mr. Johnson's use of the legislation, he said, is an "unanticipated application." Mr. Balboni declined to say whether he supported the use of the law in Mr. Johnson's prosecution.

"His is a literal interpretation of the statute," said Mr. Balboni. "We'll write the laws, and it's up to the prosecutor to apply the law and for a jury to decide."

Legal scholars say the expansion of targets under the terrorism laws is similar to that of antiracketeering laws meant to prosecute the Mafia that have in recent years been used to try cases involving anti-abortion protesters, gang members, illegal drug enterprises and corporate corruption.

But Donna Lieberman, executive director of the New York Civil Liberties Union, said existing criminal law was sufficient to prosecute the crimes of groups like the St. James Boys.

"This was really rammed through the Legislature without significant debate and without giving the public the opportunity to weigh in or to even know what was in the bill," she said. "This was pitched as something far narrower than what it really is."

The statute increases the penalty of a crime like assault or murder by one degree — the difference between a 15-year sentence and mandatory life in prison, for example — if the act is found to have been committed to "intimidate or coerce a civilian population."

In the case of Mr. Morales, who is also known as Puebla, prosecutors say that population was the Mexican community in an impoverished area of the west Bronx just north of Yankee Stadium.

On Aug. 18, 2002, Mr. Morales and a group of friends showed up uninvited at a christening party at St. Paul's Lutheran Church in the Parkchester neighborhood, a few miles east of where they usually hung out. At one point, several people commandeered the disc jockey's microphone, and before long a fight broke out, followed by gunshots.

A 10-year-old girl, Malenny Mendez, was struck in the head by a .38-caliber bullet and died. Another guest was left paralyzed.

The district attorney's office charged Mr. Morales not with murder, but with misdemeanor trespassing. He served 11 months in jail. Detectives originally believed that the gunman had escaped and fled to Mexico.

But in May 2004, a Bronx grand jury charged Mr. Morales and 18 others under a 70-count indictment for crimes including second-degree murder, conspiracy, gun possession and gang assault for a series of criminal acts committed between 2001 and 2004. Mr. Morales and several others were also charged under the terrorism statute for several of the crimes, including the murder of Malenny.

Last year, Justice Steven Barrett of Bronx County Supreme Court ruled that the antiterrorism statute could be applied in the Morales case over the objections of Mr. Morales's lawyer. So far, 9 of the 18 defendants in the case have reached plea deals with the district attorney. Eight others are at large, believed by prosecutors to have gone to Mexico. The 18th may testify in the Morales case.

There is little question that the St. James Boys were a menace to Mexican-Americans and Mexican immigrants in the area around St. James Park. When gang members were not playing soccer, according to the district attorney's indictment, they robbed restaurant patrons, fired shots into crowds, beat and harassed strangers and slashed rivals with knives.

Prosecutors said their activities were all part of an effort to be the toughest Mexican gang in a swath of the Bronx running from 170th to 205th Streets and from University Avenue in the west to Webster Avenue in the east.

Unlike many other contemporary gangs however, the 100 or so members of the St. James Boys did not seek to make money through drug sales or by controlling prostitution or gambling. They sought only power — and they tormented only those identifiable as being of Mexican origin. Everyone else was left alone.

It is not precisely clear how large a role Mr. Morales played in the gang, but his lawyer, Dino Lombardi, denies Mr. Morales was a gang member. And Mr. Morales's stepfather, Inocencio Hernandez, said that gang members might have befriended his son, but that the relationship ended there.

The real culprits, said Mr. Hernandez, have fled to Mexico.

"He was in the wrong place at the wrong time," said Mr. Hernandez, who helped raise Mr. Morales.

The terrorism charges, Mr. Hernandez said, were little more than a joke.

"I'm laughing," he said, though his voice was edged with worry. "I'm laughing because they need some person to make all the charges. They need somebody to cover the whole thing."

    In Bronx Murder Case, Use of New Terrorism Statute Fuels Debate, NYT, 8.7.2006, http://www.nytimes.com/2006/07/08/nyregion/08antiterror.html

Freed by DNA, and Expressing Compassion for Rape Victim

July 7, 2006
The New York Times
By TIMOTHY WILLIAMS

Before Alan Newton was taken out of his holding cell and escorted into a Bronx courtroom yesterday, three other criminal cases had to be adjudicated — of people charged with theft, drug possession and assault.

Only then, after 22 years spent in prison for crimes he did not commit, did Alan Newton get his chance.

He blinked in the courtroom's bright light and appeared tense as lawyers talked on either side of him.

His lawyer, Vanessa Potkin — of the Innocence Project, a legal service that seeks to free convicts through DNA evidence — told the judge that newly tested DNA evidence had cleared her client of the 1984 rape, robbery and assault charges on which he had been sentenced to 13 1/3 to 40 years.

The prosecutor, Elisa Koenderman, agreed. Judge John N. Byrne of Bronx Criminal Court looked at the defendant for a moment and said, "Motion is granted," concluding Mr. Newton's improbable journey into the recesses of the American criminal justice system, and back.

It took another two hours for Mr. Newton, 44, to walk out a free man: Judge Byrne had to sign the release order, the court clerk had to fax it to the city's Department of Correction, and various papers had to be stamped and filed in triplicate.

And then, Mr. Newton walked out of the courtroom — not into the wonder of a sun-splashed day, as may have been the story's cinematic conclusion, but into a dark corner of a Bronx courthouse where journalists were waiting for a man who had spent the Bloomberg, Giuliani and Dinkins years, and a part of the Koch administration, behind bars.

He wore a blue shirt, a yellow tie and a beige Calvin Klein suit bought for him by Bobby Thomas, his best friend from childhood. The suit was a bit loose, in contrast to the close-fitting versions favored by Mr. Newton when he worked as a bank teller before his arrest.

One of the first things Mr. Newton said at the news conference was how bad he felt for the victim, identified as "V J," though his conviction had rested largely on her identification of him and on her trial testimony.

The victim, who selected Mr. Newton's picture from about 200 photographs of potential suspects in 1984, acknowledged that on the night of the attack she had drunk about 11 beers and had also taken Dilantin, an epilepsy medication, which is not to be mixed with alcohol.

But yesterday, even before he was asked about the victim, Mr. Newton said he was sorry his exoneration "opens an old wound and denies her closure."

Mr. Newton said he wanted a home-cooked meal prepared by one of his sisters, but he settled yesterday afternoon for a meal at Amy Ruth's, a soul food restaurant in Harlem.

He also wanted to visit the World Trade Center site, in part because he had once worked at the trade center for New York Telephone Company, which has long since ceased to exist.

Mr. Newton also visited his wife, to whom he was married about 10 years ago, while he was in prison.

Most important, he said, he wanted to see his mother's grave in New Jersey. She died shortly after he was sent to prison.

"The stress killed her," said Mr. Newton's brother, Anthony Newton. "It's that simple."

For his part, Alan Newton seemed intent on moving forward. "I try not to stay angry," he said, "because if you stay angry, you can't grow."

He hopes to finish the five courses he needs to earn a bachelor's degree in business administration. He started taking college courses after he was sent to prison, at age 23.

In prison, Mr. Newton had repeatedly rejected a slot in a sex offender treatment program, which could have led to an early release. He thought it would have been tantamount to an admission of guilt, he said yesterday.

On many days in prison, family members said, Mr. Newton grew deeply depressed, but he said yesterday that he had never entirely given up on the possibility that he would be freed. "I kept my hope alive," he said. "I just didn't know when it was going to happen."

Ms. Koenderman, chief prosecutor of sex crimes in the Bronx, said Mr. Newton's conviction was a tragedy. She was thanked repeatedly by Mr. Newton's defense team for helping to prod authorities to look for the DNA evidence that eventually led to his release.

The victim's "rape kit" was found in a police storage unit after the Police Department had repeatedly said it had been destroyed.

"My job is to see justice done, and if justice means exonerating someone, I'm not afraid to look at the evidence and get it done," she said. "We're here to see the ends of justice, no matter how that turns out."

After the news conference, Mr. Newton posed for photographs and shook the hands of strangers before jumping into a green Ford Explorer.

Soon he was chatting away on a cellphone, looking immediately comfortable with the unfamiliar device, as he was sped away down 161st Street toward Manhattan, looking like any other New Yorker.

    Freed by DNA, and Expressing Compassion for Rape Victim, NYT, 7.7.2006, http://www.nytimes.com/2006/07/07/nyregion/07rape.html

Big Award on Tobacco Is Rejected by Court

July 7, 2006
The New York Times
By MELANIE WARNER

Tobacco companies in the United States won a major legal victory yesterday when the Florida Supreme Court upheld a decision to toss out a $145 billion judgment against them.

The ruling, in what is one of the last remaining personal injury class-action cases against tobacco companies, is a crushing blow to plaintiffs' lawyers, who have pushed for large class-action cases with the potential for multibillion-dollar verdicts. The six-judge Florida court stated that smokers' cases "are highly individualized" and "do not lend themselves to class-action treatment."

Investors applauded the decision, which sharply reduces the possibility of large, bank-breaking awards in tobacco cases. Shares of the two largest companies named in the suit, Altria Group, the parent of Phillip Morris, and Reynolds American, which owns R. J. Reynolds, were up sharply. Altria closed up $4.43, or 6 percent, at $77.76, and Reynolds American closed up $4.59, or 4 percent, at $118.95.

The ruling is perhaps most important for Altria, which is preparing to spin off its Kraft Foods unit. The company has said that the long-running lawsuit, originally led by a Miami Beach pediatrician, Howard A. Engle, who has emphysema, was one of the major litigation hurdles the company needed to clear before it could restructure.

Dawn Schneider, an Altria spokeswoman, said the company would not comment on when a breakup would take place.

Altria consists of Philip Morris USA, Philip Morris International and Kraft Foods, which is 86 percent owned by Altria.

Yesterday's ruling follows another industry-friendly outcome in a large case in Illinois. In December, the Supreme Court of Illinois threw out a $10 billion judgment against Philip Morris USA in a class-action consumer fraud suit that had accused the company of deceiving smokers by marketing its "light" cigarettes as having lower levels of tar and nicotine.

Despite these two victories, analysts say Altria will probably hold off announcing details of a restructuring until after there is a ruling on a civil racketeering case filed by the Department of Justice against Philip Morris and several other large cigarette makers. The government, which originally filed its case in 1999 during the Clinton administration, seeks damages of $14 billion over 10 years as well as fines if youth smoking rates do not decline and government monitoring of company research and development.

A nine-month trial concluded a little more than a year ago and tobacco companies say they are expecting a ruling from Judge Gladys Kessler of Federal District Court in the District of Columbia within the next few months.

Among investors, hopes are high for another tobacco-friendly outcome in the Department of Justice case. Tobacco companies have already won several victories in the case, including a ruling in February 2005 that the government cannot seek financial penalties from tobacco companies for previous wrongdoing, only for future infractions. In response, the Justice Department cut its financial demands from $280 billion to the current $14 billion.

"The D.O.J. case has already been emasculated," said David Adelman, an analyst at Morgan Stanley. "It can't be ignored, but it isn't something that's going to prevent an Altria breakup."

In a research note, a Citigroup analyst, David Driscoll, said a Kraft spin-off could take place two months after the Justice Department case was resolved.

Altria is eager to restructure because it believes it would have greater value as two or three separate units. While sales and earnings at Philip Morris USA and Philip Morris International have been on an upswing, Kraft's business has stagnated in recent years and may be dragging down the value of the tobacco business. Altria's price-to- earnings ratio trails that of Reynolds American, though Philip Morris is the global and domestic market leader in cigarette sales.

Some analysts say an Altria breakup could be good for Kraft, the country's largest maker of packaged food. Mr. Adelman of Morgan Stanley said an independent Kraft could use its stock to make large acquisitions and to help retain and attract talented managers.

In June, the directors of Kraft Foods ousted the chief executive, Roger K. Deromedi, and the company has recently experienced a number of high-level departures.

But it is unclear if a Kraft spinoff would bolster the food company's sluggish stock price. Mr. Driscoll of Citigroup said a Kraft spinoff could drive down Kraft's stock, because Altria shareholders who receive Kraft shares in the deal may sell some of them.

Though it is now much less probable there will be a class-action verdict that could bankrupt a tobacco company, yesterday's decision in the Engle case could open the door to a lot of small cases being filed in Florida by individual smokers.

While the Florida court struck down the $145 billion award, it has upheld two individual damage awards to Florida cancer patients: $2.9 million to Mary Farnan and $4 million to the estate of Angie Della Vecchia, who died in 1999.

The court also supported a part of the jury's original verdict in the Engle case that found that smoking causes a variety of diseases and that tobacco companies concealed information and acted negligently. The ruling means any new case filed in Florida can start with those claims already proved.

"This is going to open up a whole new chapter of cases in Florida where you could see a large number of smaller verdicts," said Matthew L. Myers, president of Campaign for Tobacco-Free Kids, an antitobacco group. Both Altria and R. J. Reynolds say they will probably appeal those portions of the court's ruling.

Charles Blixt, general counsel for R. J. Reynolds, said that even if many of these individual cases do come forward, they do not represent a significant financial threat to tobacco companies. "There's always been the potential for large numbers of individual lawsuits being filed," he said. "I think it's proven that we can defend successfully against those kinds of cases."

Jeremy W. Peters contributed reporting for this article.

    Big Award on Tobacco Is Rejected by Court, NYT, 7.7.2006, http://www.nytimes.com/2006/07/07/business/07tobacco.html

    Related http://fl1.findlaw.com/news.findlaw.com/nytimes/docs/tobacco/fla145vrdct70606.pdf

Convicted Child Molester Gets New Trial

June 23, 2006
By THE ASSOCIATED PRESS
Filed at 2:20 a.m. ET
The New York Times

WORCESTER, Mass. (AP) -- A man convicted of molesting five children at a daycare center and sent to prison two decades ago was granted a new trial and could be freed on bail.

The judge said Bernard Baran's original attorney was incompetent, calling into question whether he got a fair trial during the national hysteria over child-care sex abuse cases in the 1980s.

On Thursday, Judge Francis Fecteau set bail at $50,000 cash -- a sum Baran's lawyer says he cannot yet meet.

The judge said his ruling was not a statement on Baran's guilt or innocence. ''The defendant still has a long road in front of him, still uphill,'' he said.

If Baran can come up raise the bail, the judge must decide whether he can be released given that he has been classed as a sexually dangerous person. Baran is incarcerated at a treatment center for sex offenders.

Prosecutor David Capeless is appealing the judge's ruling for a new trial.

The case against Baran, who is openly gay, began when a mother complained she didn't want ''a queer'' working with her child. When the Pittsfield daycare center did not fire him, she called police a month later alleging abuse. Another parent also alleged a daughter was abused.

During the investigation, state social workers went to the daycare and staged a puppet show for children, demonstrating the difference between good touches and bad touches. After the show, two boys said they saw Baran touch the other.

A fifth alleged victim came forward the day Baran's trial began. His attorney at the time allowed Baran, then 19, to be prosecuted for the fifth charge, even though he had been given no time to prepare a defense.

    Convicted Child Molester Gets New Trial, NYT, 23.6.2006, http://www.nytimes.com/aponline/us/AP-Day-Care-Abuse.html

Yates trial highlights power of an expert witness

Posted 6/20/2006 11:48 PM ET
USA TODAY
By Laura Parker

During the murder trial of Andrea Yates in 2002, only one of a dozen mental health experts who testified concluded that the Houston mom was legally sane when she drowned her five children in the family bathtub.

That witness, called by prosecutors, was Park Dietz, a renowned forensic psychiatrist. As the prosecutors' only mental health expert, Dietz and his testimony helped convict Yates. The conviction later was overturned. When Yates is retried beginning Thursday, much of the attention again will be on Dietz, who is back on the prosecution's witness list. And now, there are questions about Dietz's conclusions in the Yates case because of his testimony in another trial involving a Texas mother who killed two of her children.

Among them: whether Dietz, as Yates' attorneys plan to argue, improperly injected religion into his diagnosis when he concluded that Yates was sane when she killed her children on June 20, 2001.

Such questions have added intrigue to a case in which prosecutors' initial decision to seek the death penalty ignited a national debate over how mental illness and postpartum depression are viewed in criminal courts. The Yates case now has become a symbol of the influence that expert witnesses wield in trials across the USA each day — and a test of how psychiatrists' opinions are used in court.

The standards judges use in deciding whether to admit psychiatric opinions in court are less precise than those used to vet testimony about scientific evidence that is more obviously measurable, such as DNA or fingerprints.

In the Yates case, the issue is not whether Dietz qualifies as an expert on psychiatry. His 65-page résumé cites his multiple academic degrees and work as a university professor, practicing psychiatrist and consultant to the FBI, the Drug Enforcement Administration and the Secret Service. Dietz, 57, has testified — usually for the prosecution — at hundreds of trials, including those of John Hinckley, who shot President Reagan; "Unabomber" Theodore Kaczynski; and serial killer Jeffrey Dahmer. Dietz was paid $100,000 for his work on the Yates case, he said.

George Parnham, Yates' lead attorney, said the defense hopes to raise doubts about Dietz's analysis of Yates. The defense, Parnham said, will focus particularly on why Dietz found Yates to be sane — and therefore legally responsible for her actions — and why he came to the opposite conclusion in 2004 in a similar case involving Deanna Laney, a Texas mother who killed two of her sons.

Kaylynn Williford, a Harris County prosecutor, said Dietz's analysis in other cases is not relevant to the Yates case. She says she will ask the judge to limit Dietz's testimony to his analysis of Yates. If convicted, Yates could face life in prison, but not execution. That issue was settled at her first trial, when the jury rejected execution.

Texas law defines insanity as the inability to know right from wrong. At Yates' trial four years ago, Dietz testified that Yates knew that drowning her children was wrong. Jurors agreed with Dietz's opinion and rejected her insanity defense.

Two years after Yates was convicted and sentenced to life in prison, Dietz testified for the prosecution in the murder trial of Laney, a mother from Tyler, Texas, 100 miles east of Dallas. Laney had killed her sons Joshua, 8, and Luke, 6, with a rock and had maimed a third, Aaron, 2.

The similarities between the cases were striking. Laney and Yates, now both 41, were deeply religious, stay-at-home moms when they killed their children. After interviewing them, Dietz found each woman to be mentally ill, psychotic and delusional, according to transcripts from both trials.

However, in Laney's case, Dietz testified she was insane because she had thought attacking her kids was the right thing to do. The jury agreed with Dietz's analysis and acquitted her by reason of insanity. She now is in a mental hospital.

A key difference in the Yates and Laney cases: Laney told Dietz she attacked her sons at God's direction. Dietz testified he took that as a sign she didn't know right from wrong. "I think it's understood that the ultimate test that God could ask of someone is to kill your own child," Dietz testified at the Laney trial. "The Bible has information on that very point."

On the other hand, Yates had told Dietz that she had drowned her children — Noah, 7; John, 5; Paul, 3; Luke, 2; and Mary, 6 months — at the direction of Satan, according to the trial transcript. She also told Dietz she thought it was wrong.

In an interview with USA TODAY, Dietz recalled why he came to different conclusions about the mental health of Laney and Yates.

"Mrs. Laney expected that her actions would result in her going to heaven," he said. "Mrs. Yates expected she would go to hell for her actions. She told me that. The big thing is that Mrs. Laney did not think what she was doing was wrong. Mrs. Yates did. Mrs. Laney did not see killing the children as a sin. Mrs. Yates did. Mrs. Laney thought God approved of the killing. Mrs. Yates thought God disapproved of the killing. Mrs. Laney did not expect punishment. Mrs. Yates did."

Transcripts from their trials indicate the two women told Dietz more about what they were thinking when they killed their kids. Yates told Dietz she was saving them from eternal damnation, Dietz testified. And at Laney's trial, he testified that Laney "would know it was illegal to kill" her kids.

In the interview, Dietz further explained his views: "Let's assume both of them understand that killing is against the law. Mrs. Laney believed herself to be doing the right thing at God's direction. Mrs. Yates believed herself to be doing the wrong thing, with Satan's prompting, and that it was sinful."

Yates' attorneys say Dietz improperly injected religion into his diagnosis. "There's no question," Parnham said. "He's used religious symbols inappropriately."

Michael Perlin, a professor at New York Law School who specializes in mental disability law, said societal values about good and evil should not be factors in determining whether a defendant is sane.

"It shouldn't make any difference where the voices come from, whether God or Satan or a pop star or Napoleon," Perlin said. "If you're responding to voices, that suggests a lack of a grasp on reality. They're responding to an extra-worldly command in a delusional state."

Dietz disagrees. "Under Texas law, if a mentally ill person commits a murder in response to command hallucinations from God, they would surely be insane," he said. "If they did it at the direction of the chief of police, they are arguably insane. If they believed it at the direction of a gang leader, at the direction of Napoleon, at the direction of Satan, they are not insane. Gang leaders, Napoleon and Satan do not have moral authority in Texas.

"The issue is: Does the person believe they are doing the right thing or the wrong thing?"

Enlightenment or confusion

Expert witnesses have been around for centuries.

In what could be called the O.J. Simpson case of its time, barristers defending an English aristocrat accused of murder in 1699 summoned 10 physicians and a seaman to offer opinions about why a drowned body would float.

According to a trial transcript supplied by Seton Hall law professor Michael Risinger, the experts backed the defense's claim that the victim, a young Quaker woman, had killed herself by leaping into a pond — and had not been killed by the defendant. He was cleared.

By 1995, when Simpson was tried on murder charges in Los Angeles, the demand for expert witnesses had created an industry in which some law firms specialize in rounding up such witnesses.

The Simpson case became a battle of experts. In defending Simpson against charges that he had killed his former wife and a waiter, Simpson's legal team assembled a squad of footprint and blood experts to counter every footprint and blood expert called by prosecutors.

Simpson's acquittal led to several academic studies about whether expert witnesses enlighten or confuse juries. By the time of Simpson's trial, federal courts already were beginning to restrict the use of expert witnesses.

In 1993, the Supreme Court set rules for such witnesses amid concerns that false "scientific" evidence, layered with opinion, was being allowed into civil court trials involving product liability, personal injuries and other issues.

The court told federal judges to examine the scientific methods used to support evidence presented by expert witnesses, and to admit only evidence that was scientifically "relevant and reliable." That rule has been adopted by state courts across the nation.

"Before the (1993) decision, I was seeing the most outlandish testimony. People with no credentials offered conclusions without explaining themselves," said Elizabeth Whitaker, a defense lawyer in Dallas who has written about expert witnesses.

The ruling's impact was so sweeping, scholars say, that some civil courts have kept qualified experts from testifying. "At times, it's too rigid a view of what scientists would treat as admissible," said Margaret Berger, a professor at Brooklyn Law School in New York.

The Supreme Court's rule for expert witnesses has had less impact in criminal trials. Most experts in such cases — such as DNA and hair follicle analysts and fingerprint technicians — are called by prosecutors to testify about obviously measurable evidence. Few defendants are able to mount a Simpson-like challenge to such testimony.

Where standards get murky

As courts have reined in expert testimony, there have been persistent questions about how to apply such standards to experts who deal with mental health and behavioral sciences — witnesses who provide courts with evidence that can be particularly difficult to verify.

In death-penalty cases, prosecutors often ask mental health experts to predict whether a convicted killer will be violent in the future. Such demands reflect state laws, such as those in Texas and Virginia, that ask jurors to decide whether a defendant is likely to be "a continuing threat to society."

The American Psychiatric Association has said such predictions are unreliable. In 2004, the Texas Defender Service concluded in a study of 155 inmates that psychiatrists' predictions about future violence were wrong 95% of the time.

Christopher Slobogin, a University of Florida law professor, says some scholars have pushed to limit testimony of mental health experts to verifiable facts. He says that idea won't fly in courts. "Past mental state is unknowable. That's the basic conundrum," he said. "One possible approach is to prohibit experts from addressing past mental state. But judges and juries want to know what the expert thinks of the facts. They want the facts tied together with a coherent story."

Parnham, Yates' attorney, said that in challenging Dietz's analysis, the defense will have to overcome Dietz's commanding presence in court. "He is charismatic," Parnham said. "He is extremely intelligent. He is able to deliver his opinion to the jury in a concise and logical way."

    Yates trial highlights power of an expert witness, NYT, 20.6.2006, http://www.usatoday.com/news/nation/2006-06-20-expert-witnesses_x.htm

Mich. Man Sentenced to Life Without Parole

June 8, 2006
By THE ASSOCIATED PRESS
Filed at 1:57 p.m. ET
The New York Times

FLINT, Mich. (AP) -- A man accused of killing three people in a crime spree after he was mistakenly released from prison was sentenced Thursday to life in prison without parole.

Patrick Selepak, 27, pleaded guilty last month to first-degree murder and other charges in the shooting and strangling of 53-year-old Winfield Johnson Jr.

He also said he would plead guilty to murdering Scott and Melissa Berels at their New Baltimore home a few days before Johnson's death.

''You rank at the top of the list of the bad cases I've seen,'' said Genesee County Circuit Judge Geoffrey L. Neithercut, who also sentenced Selepak to two more life sentences for armed robbery.

Selepak's girlfriend, Samantha Bachynski, 20, of Imlay City, has pleaded not guilty to the charges and faces trial Aug. 8 in Johnson's killing. The two were arrested together in Johnson's truck, but Selepak has refused to implicate Bachynski.

Corrections officials have acknowledged that Selepak should have been in prison at the time of the killings. He was released in June 2005 after serving eight years for armed robbery but was arrested again in November on a parole violation charge. When he didn't get a parole hearing with 45 days of his arrest, he was released.

The release has led to employee suspensions, investigations and policy changes within the Department of Corrections.

During the sentencing hearing Thursday, Selepak turned to apologize to Johnson's family, but family members said they did not believe him.

    Mich. Man Sentenced to Life Without Parole, NYT, 8.6.2006, http://www.nytimes.com/aponline/us/AP-Michigan-Slayings.html

Mom faces life in prison for boys' deaths

Posted 6/3/2006 1:20 AM ET
USA Today

SAN FRANCISCO (AP) — Prosecutors decided Friday not to pursue the death penalty for an Oakland mother charged with murder for throwing her three boys into chilly San Francisco Bay.

Lashuan Harris, 23, has pleaded not guilty to three counts of murder. Under a special circumstance alleging multiple deaths, she was eligible for the death penalty.

Prosecutors, however, decided instead to pursue a life sentence after reviewing new information presented at Harris' May 25 preliminary hearing, Debbie Mesloh, spokeswoman for the San Francisco district attorney's office, said in a statement. She did not elaborate on what information influenced the decision.

Her lawyer claims Harris is a paranoid schizophrenic.

According to testimony at the hearing, Harris told police and a psychiatrist after the Oct. 19 drownings that God told her to sacrifice her children — Treyshun Harris, 6, Taronta Greeley Jr., 2, and Joshoa Greeley, 16 months.

In her videotaped confession to police, Harris described how she struggled with two of her boys as she stripped them and plunged them from Pier 7 in an area where tourists stroll along the waterfront. Her youngest boy laughed, thinking it was a game.

One of the bodies was recovered, but the others were never found.

Harris' arraignment was scheduled for June 8.

    Mom faces life in prison for boys' deaths, UT, 3.6.2006, http://www.usatoday.com/news/nation/2006-06-03-mother-bay_x.htm

Highest Court in New York Confronts Gay Marriage

June 1, 2006
The New York Times
By ANEMONA HARTOCOLLIS

ALBANY, May 31 — As the issue of gay marriage finally reached New York State's highest court on Wednesday, the six judges who heard the passionate arguments from both sides put forth a fundamental question: Has marriage been defined by history, culture and tradition since the dawn of Western civilization, or is it an evolving social institution that should change with the times?

During the two and a half hours of oral argument, the judges on the Court of Appeals grappled with essential questions of social values, asking tough questions without tipping their hands as to their ultimate decision.

They wanted to know whether there were studies showing that children raised by mothers and fathers turned out better than those raised by same-sex couples, and they wanted to know whether opening the door to gay marriage would also open the door to bigamy or polygamy.

They wanted to know whether asking the courts to rewrite New York State's marriage laws was a way of letting the State Legislature escape responsibility for taking a position on a social controversy.

The case before the court was a challenge to New York State's marriage laws, filed by 44 same-sex couples. Their lawyers argued that marriage was a fundamental right, and compared laws assuming marriage to be a union of a man and a woman to the laws prohibiting interracial marriage, which the Supreme Court struck down in 1967.

Lawyers defending the marriage laws argued that even if the institution had evolved, it was the job of the Legislature — not the courts — to change them.

The plaintiffs' lawyers argued that the court merely had to change the gender-based language of the current law, which refers to "husband" and "wife," to something neutral, like "spouse." If the court agreed to legalize same-sex marriages, New York would become only the second state, after Massachusetts, to do so.

The judges' questions pointed to the precedent-setting nature of the debate. "Isn't this the only one where you have literally the whole history of Western civilization against you?" asked Judge Robert S. Smith of the state's domestic relations law. "That does go back right to the dawn of civilization."

After first citing traditional views of marriage, Judge Smith then asked whether the time was ripe for the courts to approve same-sex marriage. Judge Smith also wondered whether the issue of same-sex marriage deserved special attention because of the history of discrimination against gay people.

"Aren't homosexuals about the classic example of people who have been abused and discriminated against," and who therefore need the protection of the courts? he asked.

Peter H. Schiff, senior counsel to the state attorney general, said there was no urgent need to change the law, and pointed out that same-sex couples accounted for only 1.3 percent of all households in New York State, a "very small" number.

"I don't think anybody 100 years ago was thinking about this issue," Mr. Schiff said. "It wasn't on the radar screen."

The main lawsuit in this case was filed by a gay and lesbian rights group, Lambda Legal Defense and Education Fund, on behalf of five same-sex New York City couples against the city clerk, Victor L. Robles, who issues marriage licenses.

In New York, the legal dispute over same-sex marriage goes back two years. In February 2005, a State Supreme Court judge in Manhattan found that state marriage law violated the State Constitution. That decision was overturned last December by the Appellate Division of State Supreme Court, which said it was up to the Legislature to change the law.

In yesterday's hearing, the New York City plaintiffs were joined by three other groups of plaintiffs from across the state. New York City's lawyer, Leonard Koerner, said yesterday that even in its own case law, the Court of Appeals had affirmed the reason for marriage as "the begetting of offspring," not, as the plaintiffs argued, as the sanctioning of a loving and committed union between two people.

Mayor Michael R. Bloomberg has said that New York City is appealing the case to clarify the issue, and that he supports legislative change.

Roberta A. Kaplan, arguing for same-sex marriage on behalf of 12 of the couples across the state, said there were 46,000 families with children headed by same-sex couples in New York State, and that they could not wait until their children were grown for the law to change.

The seventh judge on the Court of Appeals, Albert M. Rosenblatt, removed himself from the case. His daughter, a lawyer, has argued on behalf of advocates for same-sex marriage in California. Judge Rosenblatt has been perceived as a swing vote in many cases. A spokesman for the court said that in the event of a 3-3 tie, another judge could be brought in. He said a tie had occurred only once in the last 20 years or so.

Judge Victoria A. Graffeo asked whether, under the plaintiffs' argument, the Legislature should afford more rights and benefits to other types of family arrangements, such as two sisters raising children. "Was the Legislature denying them due process or equal protection?" she asked.

Judge George Bundy Smith asked what the consequences of legalizing gay marriage had been in Massachusetts.

"Basically nothing," Ms. Kaplan replied. "There is not a breakdown of civil society in Massachusetts and there certainly isn't a breakdown of marriage."

Judge Bundy Smith also asked why gay couples were not satisfied with civil unions — a remedy that the plaintiffs argued would make them second-class citizens.

Chief Judge Judith S. Kaye said the court would have to decide the constitutional questions, "whether we do it frontally or whether we do it in some more subversive way," like changing language about gender.

To which Terence Kindlon, a lawyer for same-sex couples in Albany, replied, "Subversive is one of the words I've liked all my life, your honor."

    Highest Court in New York Confronts Gay Marriage, NYT, 1.6.2006, http://www.nytimes.com/2006/06/01/nyregion/01marriage.html