The development and widespread use of DNA testing has revealed a shocking truth:  The criminal justice system sends innocent people to prison far more often that anyone had imagined.  The National Registry of Exonerations lists 2870 people sent to prison for crimes they did not commit.

The actual number of innocent people behind bars likely is much larger simply because they have no one on the outside willing to spend the time and effort needed to get a court to take another look at a convict's case.  Every dog may have his day in court, as the saying goes, but it is a rare dog who gets two.

In the past few decades, a number of law schools have established innocence projects.  Attorneys and law students screen requests from prison inmates.  When a conviction looks particularly dubious, they take the case.

The various innocence projects have created an innocence network.  It now includes 68 innocence organizations in the United States and 10 other countries.  To call attention to the number of innocent people still in prison, the Innocence Network designated October 2 "International Wrongful Conviction Day."

 Maybe Oklahoma officials are not trying to inflict cruel and unusual psychological punishment on death row inmate Julius Jones but right now he must feel he's riding an emotional roller coaster.  As a previous post reported, in 2002, a jury convicted him of murder he consistently has maintained he did not commit.

Lawyers at an innocence project took on his case and an ABC television documentary focused on the efforts to exonerate him.  Kim Kardashian also became involved, attracting further public attention to the case.

These developments gave Jones a reason to hope.  However, the past three weeks brought ups and downs.

On September 13, the Oklahoma Pardon and Parole Board voted, 4 to 1, to recommend that the governor commute Jones' sentence from death to life in prison with possibility of parole.  At that point, no execution date had been set.  But days later, a court scheduled Jones for death on November 18.

The governor had not yet acted on the parole board's recommendation to commute Jones' sentence.  So, there was reason to hope.

However, on September 28, the governor announced that he was sending the case back to the parole board for another hearing.  The board had conducted a commutation hearing on September 13, but the governor wants the board to conduct a clemency hearing.


There's a difference.  Jones did not testify at the commutation hearing.  However, he would have that opportunity at a clemency hearing.  The board is going to conduct such a hearing this Tuesday, October 5.

 

Banner based on photo by  Teemu Mäntynen, via Wikimedia Commons.

On September 13, the Oklahoma Pardon and Parole Board recommended that Governor Kevin Stitt take Julius Jones off death row and commute his sentence to life in prison with the possibility of  parole.  The Jones case has divided public opinion so markedly that the governor's decision will be criticized no matter what it is.

A news story about the parole board’s action drew comments which starkly illustrated the split.  One reader wrote:

Gov. Stitt needs to do the right thing and let this innocent man out of jail. It is a complete tragedy what has happened here. I don't know how ANYONE can say this man is quilty after you take in ALL of the evidence!. PLEASE GOVERNOR STITT DO THE RIGHT THING!!!!

However, another reader thought exactly the opposite:

Gov Stitt will see to it that this monster gets his just desert! Julius is 100% guilty and deserves the death penalty! NOW!!

In 1999, a carjacker murdered Paul Howell.  Jones denied committing the crime, but in 2002, a jury found him guilty.  He has been on death row 19 years and could be executed later this year if the governor rejects the parole board’s recommendation.

The Innocence Project has championed Jones and so has celebrity Kim Kardashian.  Portions of the ABC documentary series “The Last Defense” focused on his case.

On the other side, the Oklahoma attorney general  emphatically argues that Jones committed the murder.  So does Oklahoma City district attorney David Prater, who told the parole board, “If the Board objectively considers the truth, they will quickly vote to deny the killer's commutation request.”

Some of the victim’s relatives also attended the parole board meeting and spoke against a reduction in Jones’ sentence. “I was there when my brother Paul Howell was murdered,” Megan Tobey said, I know beyond a doubt that Julius Jones murdered my brother.”

But some parole board members did have doubts.  Adam Luck said he believed that before executing someone, there should be no doubt about the person’s guilty: “I have doubts about this case”  which he could not ignore, “especially when the stakes are life and death.”However, some believed it improper for the parole board to consider the issue of innocence or guilt, a matter already decided by a jury, whose verdict was affirmed on appeal.  The murder victim’s brother, Brian Howell, complained that the board had not followed its own rules but instead had relitigated facts already decided by the jury.

“Our family continues to be victimized by Julius Jones and his lies," Howell said.  "Almost 20 years ago, we trusted the jury in this case and over the last 18 years, we have trusted the appellate process.”

In Oklahoma, the governor is free to follow or reject the recommendation of the parole board.  It stands to reason that if the governor properly can take into account doubts about whether Jones committed the crime, then the parole board likewise may take into account whether Jones is actually innocent.

It seems appropriate to allow a governor to consider the possibility of actual innocence because the power to grant clemency is both a safeguard to prevent injustice - part of the scheme of checks and balances - and also an act of mercy.  We don't know yet whether Governor Kevin Stitt will consider mercy appropriate in this case.

However, we do know that in 2019, Governor Stitt believed that there were too many people in Oklahoma prisons.  So the governor made two appointments which you might not expect from a Republican.  He put two “bleeding hearts”  - Kelly Doyle and Adam Luck - on the parole board.

 

A 2019 law created an expedited process for commutations. Doyle and Luck went to work. In a November 2019 newspaper article, Doyle wrote:

This month, Oklahoma saw the largest single-day commutation in our nation’s history. The Oklahoma Pardon and Parole Board recommended, and Gov. Kevin Stitt approved, the commutation of more than 500 people serving time for drug possession and low-level property crimes.

District attorneys went ballistic.  The Oklahoma District Attorneys Association, a private organization, filed a broad open records request to obtain Luck’s emails.  Various DAs also have accused Luck and Doyle of bias and requested they disqualify themselves.

Additionally, before the parole board's hearing concerning Julius Jones, Oklahoma City district attorney David Prater went so far as to  file a lawsuit seeking to have Doyle and Luck disqualified.  The Supreme Court ruled against Prater.

Luck's lawyer called Prater's lawsuit a veiled attempt to attack the executive power of the governor.  The lawyer, Evan Gatewood, said "Mr. Prater thinks his idea of what the parole board should look like should override what the governor of this state thinks the parole board should look like."

Why do the district attorneys, and  particularly DA Prater, object so strenuously to Doyle and Luck?  Shouldn't the district attorneys be upset with the elected officials who decided to lower the number of people in prison, rather than those carrying out the new policy?

Both Doyle and Luck have "day jobs" with nonprofit organizations.  Doyle helps manage a charity which assists convicts in finding jobs when they leave prison.  Luck heads a nonprofit which provides shelter to the homeless.  (Amazingly, some of the district attorneys claim that Luck's job creates a conflict of interest.  They argue that he would be motivated to let more people out of prison so that there would be more homeless individuals for his organization to serve!) 

 Perhaps Prater's earlier career explains some of the hostility.  Before going to law school he was a police officer.

In fact, Prater may have been a bit of a Supercop.  In addition to serving on the police department’s tactical unit, he belonged to the department's underwater rescue team and its pistol team, and was a firearms instructor.  Prater received more than 20 commendations.  Then he went to law school at the University of Oklahoma.

By comparison, Luck has a masters degree in public policy from Harvard.  He speaks Korean and served  in the Air Force as a “cryptologic linguist.”   He describes his background in this TEDx talk.

Kelly Doyle has a masters degree from the University of Chicago.  When announcing her appointment, the governor's office noted that Doyle had worked for an international aid agency, “completing tours in Darfur, South Sudan, and the hurricane-affected areas of Louisiana and Mississippi” before beginning her work helping released convicts find employment.

With these differences in background, it would be unlikely for Doyle and Luck to agree with Prater about everything.  And some disagreements are not only inevitable but productive.

But it seems quite unusual, even extreme, that a district attorney would go to court to disqualify members of the parole board from considering a particular case.   Moreover, DA Prater has extensive legal experience, so it's reasonable to assume he realized he had a thin case.  What motivated him to go ahead anyway, despite the risk?  Politics?

Execution chamber photo in update is from the California Department of Corrections, via Wikimedia Commons.

Almost a year before George Floyd's murder, 3 Aurora, Colorado, cops and 2 paramedics killed 23–year–old Elijah McClain.  Local officials took no actions against the perpetrators.

However, protests by the public prompted action at the state level.  In 2020, the Colorado legislature enacted a law banning the use of choke holds, restricting law enforcement's use of the sedative Ketamine, and not allowing police to assert qualified immunity when sued for misconduct.

The Colorado attorney general began an investigation.  Now, two years after McClain's death, a grand jury has indicted Aurora police officers Randy Roedema, Nathan Woodyard and Jason Rosenblatt and paramedics Peter Cichuniec and Jeremy Cooper.  Each faces charges of manslaughter, criminally negligent homicide and assault.
 
In the past two decades, the city of Aurora has been sued at least 16 times by plaintiffs alleging police misconduct directed towards minorities.  The city has paid more than 4.5 million dollars to settle a number of these lawsuits.  The death of Elijah McClain sheds some light on what's wrong with the Aurora police department.

The following brief summary of what happened to McClain can only hint at the senselessness and horror of the young man's death.  On the evening of August 24, 2019, McClain was walking home from a grocery store, where he had bought iced tea.  He was wearing a jacket and ski mask even though it was summer.  His family later explained that he had anemia, which caused him to feel cold.

McClain appeared suspicious to someone, who called the police.  In fact, a bodycam recorded one officer telling McClain, "I have a right to stop you because you're being suspicious."

Two of the now-indicted officers had served in the Marine Corps.  Roedema had spent 8 years and Woodyard 5 years on active duty.  In contrast, McClain was a massage therapist who weighed 143 pounds, was a vegetarian, played the violin and liked cats.  Another difference: McClain was Black.

The grand jury's indictment stated that Officer Woodyard arrived first and told McClain to stop.  The indictment continues:

WOODYARD did not see Mr. McClain with any weapons, but he noted a grocery bag and that, in his opinion, Mr. McClain was 'suspicious.'  Immediately after WOODYARD contacted Mr. McClain, ROSENBLATT joined WOODYARD and the stop quickly turned physical.  ROEDEMA later told investigators that in Aurora, as opposed to other police departments, they tended to 'take control of an individual, whether that be, you know, a[n] escort position, a twist lock, whatever it may be, we tend to control it before it needs to be controlled.'

Roedma's words shed light on why so many people have filed lawsuits against the city for police misconduct.  Aurora police, unlike those in other departments, "tend to control it before it needs to be controlled."  Translation: These cops get physical when there is no need.

So, 3 bullies, two of them ex-Marines, don't like the looks of this little guy and decide to do something about it.  But these bullies also had guns and badges.  The indictment continues:

The officers grabbed Mr. McClain's arms then forcibly moved Mr. McClain over to a grassy area near where the officers first contacted Mr. McClain and pushed him up against the exterior wall of a nearby apartment building.  ROEDEMA grabbed the grocery bag out of Mr. McClain's hands and threw it to the ground.  He didn't examine the bag's contents.  The bag contained cans of iced tea.

It appears that McClain reacted to this abuse by fighting back.  That proved to be a fatal mistake.

The cops applied "carotid controls," often called "choke holds," twice.  The first didn't work but the second rendered McClain temporarily unconscious.

While officers held McClain down, the paramedics injected him with the anesthetic Ketamine, but they gave him too much.  McClain's heart stopped in the ambulance.  The paramedics managed to restore a pulse but he never regained consciousness.

A Toxic Culture

Preventing a repetition of this tragedy will require a change in police culture.  How some officers reacted to McClain's death, and the resulting public outcry, reveals a very unhealthy attitude.

A couple of months after McClain's death, 3 cops went to a memorial near the location where he had been stopped.  These officers did not take part in the events lading to his death and 2 of them weren't even at the scene.  But as a joke, they smiled for a picture while one of them pretended to perform the "carotid hold."  Then, they sent the picture to a group chat where other cops could see it.

In the past, this action likely would not have gotten the officers in trouble.  For almost 2 decades, people had been suing the police department and the city had been paying money to settle the cases, but little else had changed.  However, things did start to change when Vanessa Wilson became police chief.

The new chief did not learn about the photo immediately, but when she did, she discharged two of the officers in the picture.  She would have fired the third but he resigned.

One of the officers now facing manslaughter charges had seen the picture and had replied "haha."  The chief fired him, too.  The chief also announced that if any officer considered the photo to be acceptable, "I will gladly accept your resignation today."

The fact that police officers would mock the death of a young man - and do so at a memorial to him near where he was fatally harmed - indicates more than a lapse of manners.  It is a symptom that they have become so tribal, so wrapped up in themselves, they have forgotten duty.  Choking a little guy is not the way to serve and protect.

A statement by the police officers union also reflects such an insular culture.  When outrage over McClain's death resulted in public protests, the police officers union responded that the cops had done no wrong.

That comment might well be expected from a union.  It's job, after all, is to represent and defend its members.  But the union went beyond denying that the officers were not culpable.  It denigrated the protesters, claiming that they were harming the police department.

That response reflects a seriously misplaced loyalty, a fealty to tribe stronger than duty to the public.  Have these cops forgotten that the job of the police is to protect life, not take it?

The pull of tribalism has replaced honor.  But can this culture of aggressive entitlement be changed?  Will the indictments and the discharges be enough?

Clearly, it won't change on its own.  In July of this year - well before the announcement of the indictments in the McClain case - another Aurora cop, John Haubert, made a violent arrest.  He now faces felony charges and is on leave without pay.

The new Colorado law requires an officer to intervene when another cop acts unlawfully.  Officer Francine Martinez was with Haubert but did not try to stop him.  She has been charged with a misdemeanor.

How many indictments will it take?  That remains to be seen, but one thing is clear.  Colorado state officials and Aurora Police Chief Wilson are setting a good example which other states and police departments should follow.

    As this blog reported earlier, a former Houston police officer awaits trial for murdering a man and a woman, in their bed, on January 2019.  The officer, Gerald Goines, had lied on an affidavit to obtain a no-knock search warrant.

    The affidavit claimed that a confidential informant had stated that the couple were drug dealers and that Goines had confirmed this information by making a drug buy.  Totally false.  There was no informant, Goines hadn't made a drug buy, and the man and woman were not drug dealers.

    While the couple was asleep, Goines and other cops not in uniform battered their door open.  It woke the man, who managed to wound Goines and 3 other intruders before dying in the rain of gunfire which also killed the woman.

    Goines' story fell apart.  He and another officer, Felipe Gallegos, now face federal civil rights charges as well as state indictment for felony murder.  Some other officers in the same narcotics squad have been charged with other offenses. 

    The District Attorney for Harris County, which includes Houston, became concerned that Goines had lied in other cases.  The DA, Kim Ogg, dismissed several dozen pending cases and assigned staff to review thousands of past cases.

      One of those cases involved Otis Mallet.  In 2011, he had been convicted of a drug offense based solely on Goines' false testimony that Mallet and his brother had sold Goines drugs.  Mallet spent 3 years in prison.

     An investigation convinced the DA that Goines had lied and that the two Mallet brothers were innocent.  When Otis Mallet's lawyer petitioned the court to clear his client's record, the DA agreed and argued that he should be exonerated.

    Goines could not avoid being called to the witness stand, but took the Fifth Amendment.  The court recommended that Mallet be exonerated and the Texas Court of Criminal Appeals agreed, declaring him actually innocent.  In a separate proceeding, Mallet's brother also was exonerated.

 
    Mallet received $260,417 in compensation from the state.  However, that hardly makes up for the ordeal of being wrongfully  accused, tried and imprisoned.  That money comes from the taxpayers of Texas, not from the people responsible.

    So, Mallet recently filed a suit against Goines and another officer.  It seems unlikely that Goines will have much money left after paying a lawyer to defend him against the murder charge in state court as well as the federal charges.  On top of that, the families of the two murder victims have sued him.

    Therefore, it would seem like a good idea for Mallet to name the City of Houston and its police department as defendants.  But he didn't.  Supreme Court precedents often stand in the way of making a municipality pay for its cop's misdeeds.

    It's strange.  If a truck driver working for a private company negligently ran into you while performing his job duties, you could hold not only the driver but his employer legally responsible.  But a different rule applies when the employer is a municipality  Decades ago, the Supreme Court decided that a person injured by the wrongdoing of a city employee cannot hold the city liable except under very limited circumstances.

    The Supreme Court's decision in the Monell case and related precedents have created a hairball which only a lawyer could love.  Figuratively speaking, to hold a city liable for the actions of one of its employees, a plaintiff must show that the city's fingerprints are on that action.  For example, the plaintiff might prove that the employee was following a specific city policy or established practice.  In some cases, it has been sufficient for a plaintiff to show that the city did not adequately train and supervise the employee.

    However, it isn't easy.  It appears that Mallet's lawyer did not believe he could prove that there were circumstances warranting holding the city liable. He may well be right, as a matter of law.

    But as a matter of common sense, if the public wants its police officers to behave properly, it must make police chiefs and supervisors accountable for what their subordinates do.

      Considering the number of innocent people who have been convicted of crimes in Houston, it is difficult to believe that police management didn't know that officers had framed innocent people.  It doesn't take the mind of Sherlock Holmes to look at the exonerations and suspect something is afoot.

     Some observers have blamed the problem on the war on drugs, and it's true that Houston's Squad 15 was a narcotics unit.  But there may be other factors contributing to police lawlessness.

    A big city police department is a government bureaucracy.  It measures success by the number of crimes solved, that is , by the number of people locked up.  Bureaucrats cover for each other when outsiders peek in, and they develop the talent to avoid responsibility and pass the buck.

    Bureaucracy particularly thrives in government when it is politically and legally difficult to hold employees and their supervisors accountable.  The public bears some responsibility by demanding a low crime rate without also insisting that cops themselves don't violate the law.

    But the Supreme Court's Monell doctrine certainly doesn't help.

Making the criminal justice system work properly entails more than pitching the bad apples.  We also need to find the good apples and put them in charge.

The news media tend to focus on one type of bad apple, the bully.  Video of a bully in action makes dramatic television.

Other types of bad apples, such as cops who take bribes, sometimes make headlines.  But good apples don't get the attention.

They do their jobs conscientiously, without fanfare.  They stick to their principles even when inconvenient and stick their necks out, when necessary, to prevent injustice.  Without the good apples, the system rots.

Consider the case of Paul Shane Garrett.  Bad apples sent this innocent man to prison.  Almost 2 decades later, good apples cleared his name.

In June 2000, someone strangled Velma Tharpe, a sex worker, and left her body in an alley in Nashville, Tennessee.  Police took bodily fluid samples for DNA testing.

Nashville police detective Roy Dunaway focused on Garrett, a truck driver who admitted that in the past he had hired sex workers, but repeatedly denied killing Tharpe.  Garrett voluntarily submitted a DNA sample.

Garrett's DNA did not match that found at the crime scene.  But despite the negative result, Detective Dunaway persisted.

Dunaway lied under oath, falsely claiming that Garrett had made incriminating statements.  In truth, even under coercive interrogation, Garrett denied killing Tharpe.  In one recorded interview, Garrett denied it 30 times.

But the grand jury believed the detective and indicted Garrett for murder.  Garrett stayed in jail 2 years.

To Garrett, it must have seemed like a nightmare, not America.  Despite all his denials, despite the negative DNA tests, despite the absence of other evidence, he was behind bars awaiting trial for murder.  All because of the perjury of a rotten apple cop.

Finally, in 2003, fearing that he would be convicted and sentenced to life in prison, Garrett entered into a plea deal.  Pleading guilty to a lesser charge, Garrett was sentenced to 15 years in prison, and could not be released on parole until he served at least 4-1/2 years behind bars.

In 2004, the Tennessee Bureau of Investigation learned that the DNA found on the victim matched that of a person listed in a federal database.  That person was not Garrett.

A TBI agent sent letters both to Dunaway and to the District Attorney's office, requesting that they obtain a DNA sample from this new suspect.  What happened then?  Nothing.

What Dunaway did with the letter he received we don't know.  That letter was not in the police case file.

A later investigator did find the TBI agent's letter to the District Attorney.  It was in the DA's case file, and on it was a sticky note stating "someone should look into this."

The sticky note sounds like a pass-the-buck bureaucratic move, a way to "get this off my desk and let someone else worry about it."  But no one did.  

And, apparently, no one told Garrett that the crime scene DNA matched another person's.  Garrett stayed in prison, unaware of this development.

Now, let's do what Garrett could not:  Press "fast forward" and skip to 2011.  Detective Mike Roland, of the Nashville Police Department's cold case unit, becomes involved.  He is a good apple.

Roland reviews the case and reports to his supervisor, Sgt. Pat Postiglione.  The two detectives interview Garrett in prison.  With a look of relief, Garrett asks, "What took you guys so long?"  

The detectives become convinced of Garrett's innocence and Postiglione sends an email to the district attorney.  In the email, Postiglione states that there "is absolutely nothing to suggest that Garrett was involved in this murder."

A high-level meeting results.   The two cold case detectives report their findings to the Nashville police chief and the district attorney.  Some others from the police department and the DA's office also attend the meeting and one of them, an assistant district attorney, is assigned to investigate further.  She concludes, "I do not believe we can permit Garrett's conviction to stand."

However, her boss, the district attorney, won't try to have Garrett's conviction set aside.  The most he will do is write a letter to the parole board, expressing doubt about Garrett's guilt and suggesting Garrett be paroled.

Garrett was released from prison in 2011.  But he still had the manslaughter conviction on his record.

The next year, Garrett did seek, through his attorney, to clear his record.  However, the district attorney objected.  Garrett remained a convicted felon.

In 2014, the district attorney decided not to seek reelection.  An "outsider," Glenn Funk, ran and won, defeating the candidate the previous DA had endorsed.

Funk established a conviction review unit.  Across the country, prosecutors have begun setting up such units only in the last 2 decades, after DNA evidence revealed that a surprising number of innocent people had been convicted.

Roland contacted the DA and asked that the conviction review unit look at Garrett's case.  At this point, Garrett already was out of prison and I believe a lot of police officers would not have gone to the trouble, but Roland did.

The conviction review unit director, Sunny Eaton decided that  Detective Dunaway had mischaracterized or fabricated evidence. The DA supported an effort by the Tennessee Innocence Project to have Garrett's manslaughter conviction set aside.

Earlier this month, a court vacated Garrett's conviction.

In my view, DA Funk is one of the good apples.  So is CRU Director Eaton.  Detective Roland is more than a good apple.  He's golden.

He also arrested the man he believes is the real killer, as indicated by the DNA match.

But what about Detective Dunaway, whose lies resulted in an innocent man going to prison?  Dunaway received no punishment for the perjury.  However, his actions in another case resulted in a demotion, and he retired in 2007 "in bad standing."  That is, he isn't eligible for rehire.

After leaving the Nashville force, Dunaway found work as an officer with a public university in a neighboring state.  For a while he served as interim chief.

Something seems amiss about our system of justice when a person guilty of no crime goes to prison and the person who committed perjury goes to Kentucky.

Kentucky map from Wikimedia Commons.

Suppose you went to prison in 1979 for murders you didn't commit. Your picture above was taken way back then, before your conviction, but you look different now, using a wheelchair.

Four decades behind bars can take their toll on the spirit, too, but last year came a new reason to hope.  The Midwest Innocence Project and volunteers from a major law firm had assembled new evidence of your innocence and were taking it to the prosecuting attorney.

Two months ago, good news brought another reason to hope.  The prosecutor announced that she had become convinced of your innocence and was going to work to set you free.  Announcements like that are as rare as quintuplets.

As this blog noted at the time, Kansas City Prosecutor Jean Peters Baker had no ethical obligation to petition the court for your release but she did so anyway!  With her on your side - not to mention the "dream team" of volunteer lawyers - how hard could it be?

Well, it turns out, a lot harder than it sounds.  Missouri law does not spell out any way for you - at this point in your case - to bring it back into court for another look.  Your lawyers tried to solve that problem by filing a petition for a writ of habeas corpus with the Missouri Supreme Court.  The Court denied it.

How about a pardon by the governor?  So far, the governor has not granted a pardon and it looks unlikely.  Almost 3,000 clemency petitions await consideration by Gov. Mike Parson, and he told a reporter that yours was not a priority.

Despite the setbacks, your lawyers don't give up.  The prison holding you is in DeKalb County, so they file a petition in that county's circuit court. The court schedules a hearing to begin on August 12.

But the Missouri Attorney General opposes.  His office files a pleading arguing that you are guilty, suggesting that you tried to tamper with a witness.  The attorney general also seeks a postponement of the August 12 hearing.

The Missouri Attorney General's office has a history of being hardnosed in exoneration cases but in this instance the AG is acting particularly strangely.  The AG has served a subpoena on the Kansas City prosecutor, and it is shocking.

The subpoena demands that the Kansas City prosecutor turn over records of all communications between her office and other officials who want you freed, including the mayor of Kansas City.  The subpoena also requires the production of communications between the prosecutor's office and local news media.

How do those records relate in any way to the question before the court, the question of whether you committed the murders?  The fact that the attorney general would subpoena clearly irrelevant documents raises a serious question about his motivation.

But the court did postpone the hearing.  It's now set to begin on November 19.

However, you may not have to wait that long. The governor has signed a new criminal justice law and it takes effect later this month.  This law specifically authorizes a prosecutor to ask a court to overturn the conviction of someone who has been wrongfully convicted.

Prosecutor Baker no longer will be limited to filing a supporting brief but will be a full party.  She  is preparing to go into court on your behalf the day the law takes effect.  I'm betting she wins. Hang in there! 

by K. W. Locke

When Kyle Shoulta and his girlfriend, Remy Riley - both 18 - began driving from Tampa to Fort Lauderdale, they likely didn't imagine they would be forced to take off their clothes in the Everglades.  They headed south, then turned east at Naples, where Interstate 75 becomes a toll road and goes straight through wetlands and swamp.

Travel advisers caution to fill your gas tank, and use the restroom, before embarking on this 80-mile stretch, known as "Alligator Alley."   You will drive for miles without seeing a service station although, about halfway, on the Miccosukee Indian Reservation, there's a convenience store where you can buy snacks and gas.

After the couple left the Interstate to fuel up, a Miccosukee Tribe police officer pulled them over, reportedly for running a stop sign.  The cop found alcohol and marijuana and offered the teenagers a deal.  To avoid arrest, they could take off their clothes and run naked.

Deciding against jail, they followed Martinez to a remote area, got out of their car, and then their clothes.  That was in August 2016, but Martinez would see them again 3 years later, this time fully dressed, when they testified during his trial for extortion.

Shoulta told the jury that, given the choice of going to jail or taking off his clothes, he opted for running around naked.

It may have been a more difficult decision for his then-girlfriend.  Riley testified that she removed her pants and shirt in front of the officer and then "I kind of looked at him like 'is this enough?' He's like, 'That's it?'"
 

She turned her back and finished undressing.  "Then, I ran in the opposite direction holding myself ," she said, and continued to hold herself when she ran back.  "While I'm in the middle of holding myself, he's like, Move your hands away from your body so I can see."

The jury found Martinez guilty of extortion and unlawful compensation and the court sentenced him to 10 years in prison.  Martinez appealed unsuccessfully.  Last month, the time came for him to start doing time.

Reportedly, Martinez may have been less than a perfect officer even before he coerced the teenagers to undress.  However, the Miccosukee Tribe's police department itself has a strange and alarming history.

It's difficult to get current information on the size of the Tribe's police department because personnel change so often.   A Department of Justice report indicates that it had 30 sworn officers in 2003.  A more recent report, from www.police1.com, indicates there are 38 officers.  

Even 30 sworn officers would seem like a lot, considering that the Miccosukee Tribe itself has only about 550 or so members.  However, the Tribe owns a resort and casino near Miami, so it certainly can afford that large a police force.

A decade ago, 21 Miccosukee officers signed a petition calling for the investigation of a police sergeant.  The Tribe fired 7 of the officers and the interim police chief.  Two years later, the department discharged four officers and a fifth, reportedly fearing she would be terminated, committed suicide.

In 2018, some Miccosukee police officers, pursuant to a tribal court's order and accompanied by Miami-Dade officers, went to a hospital 30 miles away from the reservation and seized a newborn baby over the objections of the mother, who was a member of the Tribe.   Although the Tribe returned the baby to the mother days later, the incident sparked criticism, including from U, S, Senator Marco Rubio.

Earlier this year, a Miccosukee officer was driving on I-75 when one of his tires blew out.  The patrol car rolled several times, fatally ejecting the officer.  He wasn't wearing a seat belt.

But the Tribe's problems go beyond its police department.  At one point, the Tribe hired lawyers, including a former United States attorney, to provide tax advice concerning revenues from the casino.  Some of the Tribe's leaders claimed that the lawyers advised them that they did not have to pay certain income taxes.  (The lawyers said their advice was misunderstood.)

Then, the IRS showed up asking, in effect, "where's our money?"

Tribal leaders fired the lawyers, then hired another attorney to sue the previous lawyers.  The new attorney did bring suit, claiming that the previous lawyers had conspired with the Tribe's previous chairman in a kickback scheme.  

However, a federal judge found that the Tribe had "no evidence or only patently frivolous evidence" to support the suit and threw it out.

The Tribe also had this same lawyer sue another of its former attorneys.  This suit also lacked merit.

Later, the Florida Supreme Court disbarred the attorney, and not just because of the frivolous lawsuits he filed.  The errant lawyer also had made wild accusations.   For instance, he accused another attorney of sprinkling pistachios and peanuts on the food of a law clerk who was allergic to nuts.

The lawyer only got disbarred.  He didn't wind up in prison for 10 years like former officer Martinez.  But I wonder:  Didn't his frivolous lawsuits cause just about as much damage?

I'll have to think about that, but one thing is clear.  Anyone allergic to nuts should avoid this tribe whenever possible.           

 

Banner based on photograph of alligator in Alligator Alley by David Balmer; aerial photo of7 I-75 "Alligator Alley" by Formulaone.  Both photos and map of Florida from Wikimedia Commons