A SAD MISTAKE, INDEED.

How many more innocent Americans exercising their Constitutional rights are going to have to die for the United States Supreme Court to realize that giving unfettered discretion to law enforcement is really a stupid idea?

In this ever increasing militarization and headiness of law enforcement in America, the need for more control over police is necessary, not less. Point in fact: The killing of 26 year old, Andrew Scott, of Florida. At approximately 1:30 a.m., Florida police looking for an attempted murder suspect, came upon Mr. Scott's building where the suspects motorcycle was parked. Police quietly approached Mr. Scott's front door, and without announcing who they were, knocked on the door. Mr. Scott answered, holding a gun for protection. Without a word being spoken, the Police opened fire on Mr. Scott, killing him instantly. Police say seeing the gun prompted the killing. The problem is, Andrew Scott was not the man they were looking for. The suspect was found in a building next door, and captured without incident. A neighbor interviewed after the shooting called it a "sad mistake".

A sad mistake, indeed. I don't call police killing an innocent man, a sad mistake. I call it murder. And this murder, like many others, should be laid at the feet of those directly responsible, not just the police who pulled the triggers, but also, the United States Supreme Court. These police have to be reined in, but the Court, in its complicity, does just the opposite. The era of bright line rules seems to be history, with unfettered discretion given to police to extract "justice", like the Stasi of East Germany. But it is time for more than just lip-service to this increasingly disturbing trend in law enforcement. It's time for the Court to take action, and protect the rights of American citizens. This wholesale allowance of constitutional debauchery and condoning the killing of innocents has got to stop.

Bright line rules for police conduct was ordered for a reason. The Justices of yore, understood the problem; understood the Constitution and the Bill of Rights; understood that with more discretion, there is more opportunity for police abuse. These Justices zealously protected the American public, and the rights of the people from encroachment. And now we see the result when police have no rules to live by, another death of an innocent American.

"HERE COMES DA JUDGE(S)!"

I wonder how many of you remember that funny catch phrase made famous by Flip Wilson and Sammy Davis Jr. on the venerable old comedy show Laugh-In.  I figure to have some levity to start off with, because quite frankly what we have is, Here Comes The Judge(s).  Five of them to be exact; and  U.S. Supreme Court Judges, no less.  For those of you who remember the old Laugh-In skit, imagine five people in black robes, donning the curled, powdered wigs, entering the courtroom in comedic fashion.  I used to love to watch Laugh-In and this skit in particular, it was just that funny.  

So why did we start off today's entry with some levity, because todays entry is like combining that lovable Laugh-In skit with Michael, Freddie and the Exorcist.  Five members of the U.S. Supreme Court has decided that if you are arrested, rightfully or wrongly, you can be strip searched.  That's right, stripped naked, made to squat and cough, from murder to speeding, to being wrongfully arrested.   

In Florence v. Board of Chosen Freeholders of County of Burlington, et al., No. 10-945, Mr. Florence was arrested by New Jersey police for a bench warrant issued on an unpaid fines.  He was riding with his pregnant wife and four year old son when his wife was stopped for speeding.  During the traffic stop the warrant was found. The warrant however was a computer error, as Mr. Florence had previously paid the fines, which were entered incorrectly on computer records.  The State of New Jersey even admits it made a mistake by failing to purge the arrest warrant. 

None of that mattered to the U.S. Supreme Court.  It doesn't matter if the arrest is wrongful or not; it doesn't matter if its a minor infraction or murder; if you get arrested for any reason whatsoever, you can be strip-searched. Period.  

The five judge majority decried the complications and dangers of jailers and correctional officers to justify "substantial discretion" in dealing with jail issues.  As the Court states, "[P]eople detained for minor offenses can turn out to be the most devious and dangerous criminals".  

Really?  

The Court uses the Oklahoma City Bombing and Timothy McVeigh as an example, saying that after the bombing McVeigh was stopped for driving without a license plate.  They also use the example of one of the 9/11 terrorists who was stopped and ticketed for speeding prior to the 9/11 attacks.  

What in the world do these examples have to do with strip-searching people? 

Would a strip-search of McVeigh have saved the lives of those in the Murrah Building?  Obviously not.  Would a strip-search have prevented the 9/11 attacks?  Obviously not.   I would love to know what color the sky is over the supreme court, because it sure isn't blue.  

A friend of mine suggested that the court go through a strip search just to see how degrading it is.  The more I think about it, the more I like the idea; although I shudder at the visual.

Is there a time and place for a strip search? Sure there is. But for every person arrested, even for minor infractions?  This is simply ludicrous.  

In a time and climate where the people grow more and more resistant to the encroachment of government and courts to our civil liberties, it is vitally important that the perception of justice and respect for law be a central issue in every constitutional case. As a lawyer who has practiced for 35 years, it has become increasingly difficult to uphold this fine line between order and chaos when the highest court of this land comes out with an opinion that degrades the human being and takes a giant leap to further erode the civil rights that our founding fathers ensured we kept through the Constitution.  

This is a horrifying opinion that fosters those beliefs that this nation is no longer a Republic, but a police state.  

Contact your legislators, write your local newspapers, comment in blogs, spend the time and show your opinion to rectify this atrocious assault on the Constitution and on our rights which it protects.

Court Run Amok

What happens when the highest Court in this State (the Oklahoma Supreme Court) takes collective leave of its senses?

You get a decision like Covel v. Rodriguez.

You probably don't recognize those names, and that's understandable. But let me help a little. This case is about the sad and unfortunate accident involving the death of Toby Keith's father while driving on I-35. H.K. Covel, Toby Keith's father, was driving northbound on the inside lane of I-35, when he lost control of his pickup truck, crossed the median, and entered the southbound lanes into oncoming traffic. Mr. Covel hit a bus, the collision almost being head on, and was killed instantly. Thereafter, the family filed a lawsuit in McClain County for wrongful death against the bus company and insurance company, who insured the bus.

I'll spare you the legal details, basically Mr. Covel's family said that the bus' brakes were defective and that is what caused their father's death.

I had to scratch my head at this, because Mr. Covel had lost control of his pickup truck, crossed the median, entered into oncoming traffic, and hit the bus head on. The facts also showed that the bus was obeying all traffic laws.

A McClain County jury found for Toby Keith and the family, and awarded $2.8 million in damages, and $5,000.00 dollars in punitive damages against the bus company. If there was ever a case of getting "home-towned" this is it.

A McClain County District Judge denied all attempts to overturn the verdict, and the bus company appealed. The Court of Civil Appeals, Division 4, correctly reversed the verdict, and entered judgment for the bus company. The facts of this case show that the bus and driver did nothing wrong.

The case should have been over at this point.

But alas, here comes the Oklahoma Supreme Court riding to the rescue. Not only did it accept the case, which is called certiorari, but it published an opinion overruling the Court of Civil Appeals, and upholding the jury's verdict against the bus company.

All you got to do is change the Plaintiff's in this case to ones less notable, and this lawsuit could have easily been sanctioned for being frivolous.

The Supreme Court's opinion states that competent evidence exists to support the jury verdict, and that the verdict was not the product of passion or prejudice. Really? Just what was it then? There is no evidence to show the bus or driver was negligent at all. Mr. Covel lost control, crossed the median into oncoming traffic and hit the bus, not the other way around.

I like country music; I even like some of Mr. Keith's songs, and I believe that it's good for Oklahomans to have role models like Toby Keith. The death of his father was a deeply tragic accident. But that is what it was. . . an accident. And for the Oklahoma Supreme Court to run afoul of law and logic can support but one conclusion for this opinion. At the start of this statement, I included all of the Supreme Court Justices taking leave of their senses. I was mistaken. There was one, that was not swayed, nor deluded, nor starry eyed, and was willing to commit to common sense and the facts of the case. Justice Steven Taylor writes a dissenting opinion which sums up the entire fallacy of this decision.

"Mr. Covel was northbound on I-35. He crossed the median and went into the southbound outside lane and collided head-on with the bus. It is undisputed that the bus was obeying all traffic laws and had brakes that met all federal standards. The brakes on the bus had absolutely nothing to do with this collision. Mr. Covel uncontrollably careened in front of the bus and crashed into the bus. This was a sudden, instantaneous and unavoidable event. No matter what kind of brakes the bus may have had, there is nothing the bus driver can do about a flying car instantly appearing from the other side of the highway. It is fundamentally unfair for the bus insurance company to be required to pay over $2.8 million because Mr. Covel lost control of his vehicle. The Court of Civil Appeals properly found that the plaintiff's expert opinions were not based on scientific foundation and that the opinion on causation was a bare assertion and totally insufficient to support this huge verdict."

Just looking out for you.

Birds Of A Feather

Terrill, Journal Record Picture

Birds of a feather, typically stay together, unless you're deep in the mire of Oklahoma Politics. 

I have to scratch my head however, at the preliminary hearing of Randy Terrill and Debbe Leftwich, both accused of  bribery in a situation that reminds me of the Keystone Cops.  Do you remember?  "They went thataway!" 

Politicians get jobs in government all the time; it is the rule, not the exception.  I don't like it anymore than anybody else, but remember, it's politics were talking about.  But in this particular case, a deal was allegedly struck to secure a tax-paying government job for yet another politician; and the governor veto's the deal.  For Pete's sake, why in the world can't the district attorney go after a successful bribe, and not one that failed!

 I have rarely, if ever, agreed, with Randy Terrell, but in this case, I can't help but argue against what is going on in Oklahoma County. We are wasting taxpayer money on a witch hunt, which in the end everyone will lose, especially the People of Oklahoma.  It's rather obvious that there's no love loss between David Prater and Randy Terrell, but to resort to using your and my money to "even the score" is reprehensible. 

This case reminds me of an Oklahoma court opinion from 1911, I read sometime back,
"Rev. Cotton Mather, one of the best and ablest men that America ever produced and his associates, doubtless felt that they were entirely impartial and that they were simply performing an unpleasant Christian duty when they were having women burned as witches."

It would be simpler, (and cheaper), if the district attorney would simply add a torture chamber at a local bar to illicit confessions, and not just money.

Mickey

Un-American Name-Calling

 Campaigns bring with them an expectation of bravado, but there is a line that no one running for public office should ever cross. In some cases, we have even seen someone's faith called into question. Absolutely deplorable.

And now, we're seeing some name-calling in the GOP presidential race, seeing Texas Governor Rick Perry calling those who disagree with his policy on in-state tuition rates for the children of illegal immigrants "un-American." Perry should know better, but apparently, he doesn't.

Free speech is one of our Constitutionally-protected rights in this country, but the American voters deserve better than candidates who choose to call into question someone's patriotism because of disagreement on policy. We have seen it previously when the Iraq war began, with both sides of the argument questioning the opposition's patriotism. It's ridiculous and American citizens should be outraged.

Perry appears to be the current front-runner for the GOP nomination and as a voter, it alarms me that someone who wants to occupy the most prestigious and demanding office in the world can't control his tongue and resorts to what I consider to be school yard tactics such as name-calling.

What's next? Rick Perry tugging on Michelle Bachmann's pony-tail in the school yard?

We deserve better, friends.

Mickey

Former OHP Officer Charged

Logan County District Attorney Tom Lee has done the right thing and is to be lauded for his work.  He has charged Patrick Venable with second-degree rape after taking a woman into custody, then taking her to a private residence to have sex with her.

Patrick Venable is a former Oklahoma Highway Patrolman who resigned after the misconduct allegations arose.

The story is horrific.  Venable was on duty and took a female driver into custody for DUI on the Broadway Extension.  He then took her to a residence out in Guthrie to have relations with her. 

The temptation for District Attorneys to overlook the misdeeds of those wearing a badge looms terribly large.  Particularly since Oklahoma elects its District Attorneys and one of the coveted endorsements is that from the Fraternal Order of Police.  District Attorney Tom Lee of Logan County did the right thing in charging the former officer.

Citizens place their trust in law enforcement and when law enforcement goes astray, prosecutors should hold them accountable, even holding them to a higher standard of conduct.  After all, we trust them to keep us safe - not abuse us.

Mickey

Grey Elephant In the Room

Everyone who is anyone has been following the Jerome Ersland trial and soon, sentencing will take place.  The Oklahoman has done its level best to ensure that its readers are aware of their opinion of both the District Attorney as well as Mr. Ersland himself and they have even taken a few shots at the Judge in the case - as well as fired a few shots across his bow regarding sentencing.

People are so outraged about this case that they are taking a signed petition to Govenor Fallin's office to get her to pardon Mr. Ersland. 

But there is a rather large elephant in the room that to date, no one is willing to discuss, and that's, Irven Box and the defense team.  It seems Mr. Box and his team have been given a "pass" in this case and it boggles my mind as to why.  Perhaps it is because Box is close to retirement or perhaps it is because it is politically correct to continue to sling mud against the jury, the D.A., and Judge Ray Elliott, rather than address the fact that the defense in this case is largely responsible for the verdict.

During closing arguments, defense counsel argued to the jury that they should not even consider, the lesser included offense of manslaughter - to me, that makes no sense whatsoever.  Clearly, Ersland was in the wrong and guilty of something, and the jury should have been encouraged to consider all options at its disposal.  When defense counsel paints a picture that one option on the table shouldn't even be considered, there's trouble...and trouble is what Ersland got.

I have to scratch my head at the defense only calling one witness in a First Degree Murder Case. I've tried murder cases in the past, and you don't just call one witness. Period.  I'm not sure of the strategy involved with that, but as you can see, it didn't work. 

To me, the Ersland case is the antithesis of the currently famous Casey Anthony Case in Florida.  Consider: a woman who most thought was gulity of First Degree Murder, was acquitted after a vigorous defense; and then there's the Esrland case, a man, who most thought was not gulity of First Degree Murder, but was convicted after a less than steller defense.  For Jerome Ersland blame should be spread evenly, and not just concentrated on the judge, jury and D.A.

Now, the fate of Ersland lays in the hands of Judge Ray Elliott, who has been under massive media pressure to give Ersland the most lenient sentencing possible.  It also lies in the hands of Governor Fallin who will probably do nothing - there is no political motivation for her to do so.  On one hand, the Governor has high approval ratings and doesn't have to face re-election for a few years.  If she passes, it can be chalked up to "letting the justice system work," but if she acts, she will face the cheers of those who believe the trial was a sham from the beginning.

The media must now turn its spotlight on Ersland's attorneys and ask the hard questions.  If they refuse, you can count on this blog to shed some light on this otherwise dark case in Oklahoma judicial history.

Mickey