Rose, Rosfeld, and reality

On June 19, 2018, East Pittsburgh police officer Michael Rosfeld stopped a car because it matched the description of one that had been involved in a drive-by shooting in North Braddock some 15 minutes earlier. He detained the driver, but two passengers ran. He opened fire and fatally shot one of the passengers: Antwon Rose, Jr.

Rose was 17 years old. His hands were visible and were empty when he ran, and no weapon was found on his person. Rosfeld is now charged with his murder. As of this writing, trial is scheduled for February 26, 2019. The question is whether the shooting was murder, justifiable homicide, or something in between.

In light of the gag order in this case, I should note that, while I am acquainted with both of the attorneys that will be trying it, I have not discussed the case with either of them or with any of the attorneys representing Antwon Rose’s family. I am not privy to any facts that have not become public. I do not know the exact content of the police radio broadcast about the North Braddock incident. And I speak only for myself.

The question I address here is “When is it a crime for an officer to shoot an unarmed fleeing suspect?” “Always” is not the correct answer.

First, some general principles:

Our Crimes Code (Title 18) states in § 107(b), Common law crimes abolished, that:

No conduct constitutes a crime unless it is a crime under this title or another statute of this Commonwealth.

When a defendant asserts that a homicide was justifiable, the Commonwealth must disprove justification beyond a reasonable doubt.

If a criminal statute can be reasonably interpreted more than one way, the interpretation that favors the defendant controls. This is a constitutional requirement; in Dunn v. United States, 442 U.S. 100, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979) the United States Supreme Court stated:

[This rule] is rooted in fundamental principles of due process which mandate that no individual be forced to speculate, at peril of indictment, whether his conduct is prohibited. [Id. at 112.]

Similar concerns about fair notice of prohibited conduct were expressed in Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). In that case the Court rejected the retroactive application of a new interpretation of a criminal statute, stating:

When a statute on its face is vague or overbroad, it at least gives a potential defendant some notice, by virtue of this very characteristic, that a question may arise as to its coverage, and that it may be held to cover his contemplated conduct. When a statute on its face is narrow and precise, however, it lulls the potential defendant into a false sense of security, giving him no reason even to suspect that conduct clearly outside the scope of the statute as written will be retroactively brought within it by an act of judicial construction. [Id. at 352.]

The Pennsylvania statute whose construction is critical here is § 508(a) of the Crimes Code. It was enacted on December 6, 1972 with an effective date of July 1, 1973. It has never been amended. The relevant portion of that statute is as follows:

(a) Peace officer’s use of force in making arrest.–

(1) A peace officer, or any person whom he has summoned or directed to assist him, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. He is justified in the use of any force which he believes to be necessary to effect the arrest and of any force which he believes to be necessary to defend himself or another from bodily harm while making the arrest. However, he is justified in using deadly force only when he believes that such force is necessary to prevent death or serious bodily injury to himself or such other person, or when he believes both that:

(i) such force is necessary to prevent the arrest from being defeated by resistance or escape; and

(ii) the person to be arrested has committed or attempted a forcible felony or is attempting to escape and possesses a deadly weapon, or otherwise indicates that he will endanger human life or inflict serious bodily injury unless arrested without delay.

Another provision in the Crimes Code — § 501 — states that “believes” means “reasonably believes”. This is a probable cause standard.

Subsection (ii) of § 508(a)(1) is vexing. It has too many conjunctions. It should have been divided into additional subparagraphs. There are two ways this could have been done, with differing meanings.

Here is the first:

. . . the person to be arrested has committed or attempted a forcible felony or is attempting to escape

AND possesses a deadly weapon,

OR otherwise indicates that he will endanger human life or inflict serious bodily injury unless arrested without delay.

Here is the second:

. . . the person to be arrested has committed or attempted a forcible felony

OR is attempting to escape and possesses a deadly weapon

OR otherwise indicates that he will endanger human life or inflict serious bodily injury unless arrested without delay.

The question is whether an officer needs both forcible-felony probable cause and an indication of immediate danger (suspect is armed or engaging in behavior showing intent to endanger life or inflict injury), or whether one or the other will suffice.  I believe that “one or the other” is the correct answer.

No precedential appellate decision has addressed this question. There was a 1990 Superior Court opinion (Commonwealth v. Curtis Johnson) that said both probable cause and immediate danger were needed, but it was unpublished and therefore not precedential. I couldn’t find it online, so I went to the Superior Court office and purchased an archived copy. The opinion has no effect on the Rosfeld prosecution.

I do not believe that the Johnson decision correctly interpreted § 508(a)(1)(ii); the legislative intent can be readily discerned from two provisions within § 508 that follow the vexing one.

The use of deadly force by private citizens is governed by § 508(b)(1); it states:

(b) Private person’s use of force in making arrest.

(1) A private person who makes, or assists another private person in making a lawful arrest is justified in the use of any force which he would be justified in using if he were summoned or directed by a peace officer to make such arrest, except that he is justified in the use of deadly force only when he believes that such force is necessary to prevent death or serious bodily injury to himself or another. [Emphasis added.]

The use of deadly force by corrections officers is addressed in § 508(c)(3), which states:

(c) Use of force regarding escape.

(3) A corrections officer is justified in the use of such force, which the officer believes to be necessary to defend himself or another from bodily harm during the pursuit of the escaped person. However, the officer is justified in using deadly force only when the officer believes that such force is necessary to prevent death or serious bodily injury to himself or another or when the officer believes that:

(i) such force is necessary to prevent the apprehension from being defeated by resistance; and

(ii) the escaped person has been convicted of committing or attempting to commit a forcible felony, possesses a deadly weapon or otherwise indicates that he will endanger human life or inflict serious bodily injury unless apprehended without delay. [Emphasis added.]

What this all means is that to convict Rosfeld, the DA must prove beyond a reasonable doubt that he did not have probable cause to arrest Rose or that he could have stopped the attempted escape without using deadly force. The fact that no weapon was seen in Rose’s hands or found on his person does not make his shooting a criminal homicide.

Moreover, if the officer honestly but unreasonably believed that he had probable cause, this would reduce the offense from murder to manslaughter.

Whether there was probable cause will be determined by considering the information known to Rosfeld at the time that he fired his weapon. Anything that came to light afterwards is irrelevant.

Some commentators believe that the United States Supreme Court decision in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) changed Pennsylvania law. I can’t agree.

Garner involved a civil suit. A 15 year old burglar was fatally shot while attempting to escape the scene of his offense. He was not suspected of any act of violence toward any other person, and the officer who shot him had not believed him to be armed. The Supreme Court held that the use of deadly force was unreasonable under the circumstances, and rejected the common law rule allowing deadly force to be used against any fleeing felon. But there was an exception:

Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given. [Id. at 11-12; emphasis added.]

Moreover, while the legislature could have amended § 508 to make the criminal standard consistent with the civil standard, it did not do so. In a Michigan case in which a similar issue arose, the court rejected the theory that Garner changed state criminal law:

We agree with [the] conclusion that the decision of the United States Supreme Court in [Garner] did not “automatically” modify this state’s criminal law with respect to the use of deadly force to apprehend a fleeing felon…. [T]he prosecution’s argument that Garner applies directly to change this state’s fleeing-felon rule fails because it is premised upon the notion that the United States Supreme Court can require a state to criminalize certain conduct. Clearly, the power to define conduct as a state criminal offense lies with the individual states, not with the federal government or even the United States Supreme Court. While the failure to proscribe or prevent certain conduct could possibly subject the state to civil liability for its failure to act, or for an individual’s actions, if that state, for whatever reason, chooses not to criminalize such conduct, it cannot be compelled to do so. [State v. Couch, 461 N.W.2d 683, 684 (Mich. 1990).]

Another commentary states:

[D]eciding the constitutional standard for Garner’s civil rights suit did not disturb what the standard had to be for state criminal law prosecutions. States still have the authority to dictate under what circumstances police could justifiably use deadly force, and so avoid punishment under state law. [Chad Flanders & Joseph Welling, Police Use of Deadly Force: State Statutes 30 Years After Garner, 35 St. Louis U. Pub. L. Rev. 109, 110 (2015); original emphasis; footnotes omitted.]

Thus, Pennsylvania is left with the statute as it was enacted in 1972. It remains in effect until and unless the legislature decides to change it. Even if it had been changed the week after the shooting, the case must be decided according to the law in effect at the time of that tragic event.

Thus, an acquittal or a manslaughter verdict may simply reflect the jury’s application of the law to the facts of this case. Neither outcome, however painful, should be assumed to be a nullification of the law.

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The torture claim still fails

Candice Jackson continues to sound off. For example:

She discusses the affidavit in support of the Motion for Psychiatric Examination and goes on to say:

The overall impact on Kathy as a young girl was to leave her feeling completely deprived of justice for the heinous crime committed against her, and leaving her feeling like it was somehow her fault.

The affidavit, however, could have had no impact on Shelton “as a young girl” because she did not become aware of it until Glenn Thrush interviewed her for his 2008 Newsday article. According to Thrush, Shelton was “visibly stunned” when he handed her the affidavit.

Jackson stated that Shelton did not recall ever taking the stand but had “very definite memories of facing Hillary personally on at least two or three occasions during the pretrial proceedings.”

The first, supposedly, was during a “line-up of suspects.”

If there ever was an identification issue in this case, it was resolved no later than May 14, 1975, four days after the offense and prior to Hillary’s involvement. The affidavit signed on that date by a prosecution investigator states the following in the first paragraph after the introduction:

. . . I have personally interviewed Kathy Shelton, the victim of the alleged crime herein, and she has informed me that she was raped by Thomas Alfred Taylor on May 10, 1975. . . . She also gave me the names of two (2) other persons who were present during this attack. [Emphasis added.]

Jackson described the next meeting as follows:

. . . Hillary and a few other people were present and Hillary and others asked her questions. I think that is a formal witness interview, probably part of the discovery process the defense was entitled to.

Kathy remembers feeling like Hillary was “rude” and “cold” and Kathy felt “like she doesn’t like me.”

There could certainly have been a prosecution team meeting during which more than one person asked Shelton questions, and during which a woman was present. However, defense attorneys are not invited to such meetings.

Defense attorneys are not “entitled” to summon witnesses for pretrial interviews. In fact, the right of a defendant to review prior statements of a prosecution witness is constitutionally guaranteed (with exceptions not material here) only after the witness has testified on direct examination.

In Arkansas, the court has the discretion to compel a prosecutor to make a witness available for a defense interview, but a motion and order would be necessary. None of the discovery motions Clinton filed ask for this opportunity, nor was any such order entered.

Moreover, Shelton told Josh Rogin in 2014 that she did not recall ever meeting Clinton in 1975. Rogin’s interview took place at least six years after she had learned that Clinton had been Taylor’s attorney and had been shown the affidavit.

In short, the claim that Hillary tortured Shelton still fails.

Jackson also claims that Hillary was responsible for the disappearance of the stained portion of the undershorts. The stain had already been tested and the toxicolgist who tested it was, according to the court documents, prepared to testify about the findings. The garment did not have to be present in court for that testimony to be admissible. Evidence tampering would have accomplished nothing for Clinton except the destruction of her own career.

I am keeping a watchful eye on developments.

Posted in Kathy Shelton, Thomas Alfred Taylor, Tommy Taylor | Tagged , , , | Leave a comment

Backpedaling by the Shelton camp

On October 11, 2016, the Washington Post published an article by fact-checker Glenn Kessler refuting the claims about the psychiatric evaluation and the polygraph:

On October 18, 2016, PennLive reporter Colin Deppen interviewed me. His article ran the next day:

As the article reflects, he was able to reach Shelton’s “advocate”, Attorney Candice E. Jackson of Vancouver, Washington. Jackson acknowledged that Shelton admitted that she might have “misremembered the psychiatric exam and conflated memories of law enforcement interviews[.]” (Deppen’s words.)

The article also states:

Jackson said some confusion was to be expected and that Shelton’s current recollection “is that she was threatened to undergo a psychiatric exam, but didn’t go through with it.”

Jackson went on to say:

Kathy has always been consistent and clear in how she felt dragged through the process under the pressure of ‘You’re lying and making this up,’ and that ‘It didn’t happen, but if it did, you wanted it to happen[.]’

And, according to Jackson, Shelton stands by her claims of undergoing intensive polygraph testing, but is no longer sure if Clinton requested the tests.

Now, I understand about confusion. In my family law practice, I regularly deal with new clients who are unable to give me a cohesive account of past proceedings.

However, the motion for the psychiatric examination in this case was filed on July 28, 1975 and denied the following day. This doesn’t leave much time for Shelton to have felt threatened.

Clinton would have had no control over how police or prosecutors questioned Shelton in the course of preparing for trial. Here’s what Josh Rogin’s 2014 article stated:

She didn’t even know Clinton was the lawyer who defended her attacker until [Glenn] Thrush showed her Clinton’s book and she had no other information about what had happened behind closed doors in that courtroom when Thrush approached her, she said.

The victim doesn’t remember ever meeting Clinton in 1975; she says her memories from that ordeal are spotty.

Shelton has, to my knowledge, never said anything that would contradict what I quote above. She has never claimed that she testified.

Shelton may not be sure whether Clinton was responsible for the polygraph examinations. I am sure that she was not.

Plain and simple: no attorney has the ability to compel any witness to submit to a polygraph examination.

Under the circumstances, any claim that Clinton “tormented” or “terrorized” Shelton is groundless. If Shelton’s life was ruined, Thomas Alfred Taylor ruined it.

Shelton still seems to think that if Clinton were really a feminist, she would have helped her. She has never said what she thinks Clinton could have done to help her. Shoot her client, perhaps?

Clinton did laugh in the course of discussing the case with Roy Reed, but Shelton was not the target of her laughter. There is not a word in the conversation that is the least bit derogatory to Shelton.

Clinton found it comical that the prosecution would initially resist her request to see the only item of physical evidence — her client’s undershorts — and would then present her with a garment from which the significant portion had been cut out. I understand that.

She sounds a bit giddy when she describes the tail end of the Brooklyn consultation and her return from it. I understand that as well.

She was recalling the rabbit-hole experience of reluctantly taking on the defense of a man who was charged with conduct she abhorred, and then burrowing in on the task of exploring every avenue of defense. Add to that the experience of venturing into an unfamiliar and possibly unsafe Brooklyn neighborhood — with her client’s undershorts in her bag — to consult with an eccentric expert who worked out of his basement. (Probable address: 64 Rutland Road in the Prospect-Lefferts section of Brooklyn.) She was probably relieved to get back to wherever she had caught the taxi to Brooklyn from, and even more relieved to get back to Arkansas. Her laughter reflects that, as well as her great relief at not having to try the case.

Finally, I understand laughing about a judge to whom a female lawyer was such a novelty that he did not want to question her client about the offense with her in the courtroom.

There are people who think that if you laugh when discussing a violent crime, you must think violence is funny. Anyone who believes that should spend some time in a squadroom.

I believe that Clinton’s request to her own client to submit to a polygraph, her consultation with the Brooklyn expert, and her motion for a psychiatric examination of Shelton were all attempts to settle the question in her own mind: exactly what did Taylor do?

The motion for the psychiatric examination is awkwardly worded. The underlying question in Clinton’s mind appears to have been Shelton’s ability to distinguish fantasy from reality.

There were, according to the retired investigator Thrush interviewed, “serious inconsistencies” in Shelton’s statements about what had occurred. And it is highly unusual for a twelve year old to be polygraphed. Obviously, Clinton was not the only one who was puzzled.

I am not going to respond to everything that has been said about this case. This is a blog, not a book. I will toss out (at the risk of repetition) a few facts that should be borne in mind by anyone trying to sort it all out:

The offense took place around 4:00 am on Saturday, May 10, 1975.

Less than an hour later, Shelton and her mother walked into a hospital emergency room.

A report was made to Springdale police by Shelton’s family, the matter was referred to the Washington County Sheriff’s Office, and Taylor was arrested at approximately 6:30 am that day.

Taylor was not charged with aggravated assault or any offense other than rape.

Arkansas law did not and does not require that a rape charge be corroborated.

The vast majority of rape cases are tried without any evidence relating to the defendant’s underwear.

DNA matches, whether from blood or from other bodily fluids, were a pipe dream in 1975.

I’m leaving it at that for now.

Posted in Kathy Shelton, Thomas Alfred Taylor, Tommy Taylor | Tagged , , , | 2 Comments

Fluids, forensics, and frustration

Where Clinton was going with the affidavit is not clear. Shelton’s interpretation is “She was saying that I wanted it to happen.” This has spawned one more fake Clinton quote: “You wanted it, didn’t you?”

The affidavit did not state that Shelton had made up the incident, that she had consented to intercourse with Taylor, or that she had somehow caused Taylor to do what he did. (Obviously, nothing Shelton did took away Taylor’s ability to make choices.)

I think the correct answer is “none of the above.” I have a theory as to Clinton’s alternate scenario, and as to what she hoped to accomplish by consulting with the Brooklyn expert whose name she could not recall when she discussed the case with Roy Reed.

Bear in mind that the part of the tape preceding “Of course, he claimed that he didn’t” is inaudible.

I will start the forensics discussion with a quotation:

And now it is considered probable that the day is approaching when blood identification will become as individual as fingerprints.

This was said in 1950. It was said by Edward D. Radin, a true-crime writer. He said it in Chapter 8 of a book titled 12 Against Crime. That chapter, Invisible Clues, is about Alexander Solomon Wiener, a physician who had collaborated with Karl Landsteiner (1868-1943) in the research that led to the discovery of the Rh factor. Wiener, who was born in 1907 and died in 1976, also worked with the office of the Chief Medical Examiner of New York City for many years. He lived in Brooklyn. Here’s more information:

Clinton described her expert as having “shared in the Nobel Prize for his work on the Rh factor.” It was actually Dr. Landsteiner who received that honor, and not for his Rh work, but for his discovery of blood groups.

She also described the expert as having a basement “just absolutely packed with detective magazines.”

Wiener was an honorary member of the Mystery Writers of America.

I accordingly believe that I can state with a reasonable degree of nonmedical certainty that Wiener was the expert with whom Clinton consulted.

The tape is captioned, and this is what the captioning shows as to what Clinton had heard about Wiener:

And so the, sort of the story through the grapevine was if you get him interested in the case then you know, you had the foremost expert in the world willing to testify so that it came out the way you wanted it to come out.

However, according to Alana Goodman’s article about the tapes, Clinton stated:

The story through the grape vine was that if you could get [this investigator] interested in the case then you had the foremost expert in the world willing to testify, so maybe it came out the way you wanted it to come out[.]

The word between “so” and “it” is barely audible, but when I listened closely with the volume up I heard the same word Goodman did: “maybe.”

Now, there could hardly have been a better source for advice on dealing with bodily fluid evidence than Wiener. If Wiener looked at what was left of the undershorts under a magnifier and said the “slight trace” he saw was not enough to test, that was the end of the line.

It was, as Clinton stated to Reed, sad that the crime lab discarded the stained portion of the underwear after testing it. Some crime lab personnel do not grasp that tested evidence is supposed to be preserved, if at all possible, for whatever independent testing the defense may seek to arrange.

The prosecution specifically stated in its Bill of Particulars that the only scientific test conducted was a “test for human blood” by the state toxicologist. From this, we can draw two conclusions: no attempt was made to determine the blood type of the source of any of the fluids, and the medical testimony with respect to Shelton would have simply described a physical examination followed by the viewing of a slide under a microscope, with no lab work being done.

At the time, typing (ABO blood grouping) could be done from other bodily fluids if the person was a “secretor” — someone whose blood antigens are secreted into his or her other bodily fluids. This science was fairly new in 1975. The testing entailed drawing blood from the suspected source for comparison purposes. There is nothing in the discovery responses indicating that a blood sample was taken from Taylor, the juvenile, or Shelton.

Getting DNA information from bodily fluids was a decade away. Googling “Colin Pitchfork” will confirm this.

ABO typing could sometimes rule out a suspect, but could not prove guilt. Shelton knew Taylor, so this was not a case in which a mistaken-identity defense would have gone very far. Under those circumstances, it is understandable that the Arkansas authorities did not go to the ends of the earth with the forensics.

Wiener likely advised Clinton, and could have testified, as to the limitations of whatever testing method the Arkansas authorities had used to determine the presence of blood and semen. He could have testified as to what further tests might have been conducted had the crime lab not discarded the stained portion of the underwear. He represented the state of the art.

The consultation would have, at the very least, enabled Clinton to conduct a more informed cross-examination of the Arkansas toxicologist.

This takes us to the question of what further testing might have shown had the specimen been preserved. I suspect that Clinton thought it might raise a reasonable doubt as to penetration.

Shelton, previously a virgin, had intercourse with the juvenile. Then Taylor decided that it was his turn. The juvenile stated that he heard the victim scream and saw Taylor hitch up his pants. The time lapse between those two events is not stated.

If Taylor took down his pants and got on top of Shelton right after she had had intercourse with the juvenile, but did not penetrate her, her blood and the juvenile’s semen could still have ended up on his body and then on his underwear. (He might have stopped because she screamed, or his whiskey consumption might have impaired his sexual functioning.) Had the semen been tested for blood antigens, it might have turned out that it did not come from Taylor.

A young victim who had consumed alcohol might have had trouble distinguishing between external pressure and slight penetration; both of those things would have hurt a victim whose hymen had just been broken.

And, if Shelton’s general reliability as a witness was problematic, that would have been a further reason to question whether Taylor had gone as far as he initially intended to.

When Clinton returned from Brooklyn, she told the prosecutor “This guy’s ready to come from New York to prevent this miscarriage of justice!” That is the type of statement that is generally not intended to be taken literally; it is sort of like a defense attorney telling a prosecutor “We’ve got the Pope all set to testify as a character witness!” Statements like these are intended to signify a determination to vigorously defend a case at trial.

It is not plausible that a seasoned prosecutor would jump to conclusions about Wiener accomplishing a stunning exoneration. The first question a prosecutor would ask, if the statement were taken literally, would be “What is he going to testify to?” The second would be “Where’s his report?”

The prosecuting attorney, now retired, has defended Clinton’s conduct. Here’s what he said about the aftermath of Clinton’s Brooklyn trip:

We began to scramble and consider the possibility of lesser offenses.

She was just doing her job. She was going to present the best defense she could and she was certainly going to require us to prove his guilt. (4:12)

He also told CNN that Clinton’s first reaction to being assigned the case was “I don’t want to represent this guy. I just can’t stand this.”

She got past that. That is what lawyers are supposed to do when they are appointed on a criminal case.

The criticism reminds me of this exchange from To Kill a Mockingbird:

Lemme tell you somethin’ now . . . you know the court appointed him to defend this ******.

Yeah, but Atticus aims to defend him. That’s what I don’t like about it.

(I am not likening any actual participant in the Taylor case to any Mockingbird character. Tom Taylor was no Tom Robinson.)

Josh Rogin quotes Shelton as follows:

I don’t think she’s a role model at all. . . If she [would] have been, she would have helped me at the time, being a 12-year-old girl who was raped by two guys[.]

And this is what Shelton told Goodman she would say to Clinton:

[Y]ou’ve got a daughter and a grandbaby. What happens if that daughter of yours, if that would have been her . . . ?

You would have protected her. You don’t know me, so I’m a piece of crap to you[.]

That’s not how it works.

The defense of a person accused of a crime is not a judgment as to the worth of the accuser.

A relationship with the victim of a crime would disqualify an attorney from representing the person charged with that crime. There was nothing Clinton could have done to help Shelton; her responsibility was to Taylor, the only person facing a loss of liberty in the proceedings.

Despite the uncertainty about the particulars of the case, it is patent that neither side wanted to roll the dice. Neither Gibson nor Clinton wanted to try the case, not just because of a possible adverse outcome, but because of the prospect of putting Shelton through a trial. Given Clinton’s values and her personal opinion as to the truth of the matter — even if she came to believe that the truth might lie somewhere in between — she undoubtedly dreaded the prospect of cross-examining Shelton and presenting evidence undermining her credibility. The agreement to conclude the case with a plea bargain was probably a tremendous relief to her.

Enough for now…


Posted in Kathy Shelton, Thomas Alfred Taylor, Tommy Taylor | Tagged , , , | 1 Comment

Nothing unethical about the affidavit

Here is the core of the affidavit in support of the Motion for Psychiatric Examination:

I have been informed that the complainant is emotionally unstable with a tendency to seek out older men and to engage in fantasizing. I have also been informed that she has in the past made false accusations about persons, claiming they had attacked her body.

There is nothing in the affidavit about any sexual history of Shelton, and Clinton did not say that Shelton had falsely accused anyone of rape. She also did not say or suggest that Shelton had invited Taylor’s attack.

Naturally, Shelton was upset when she learned about the affidavit. This is what she told Josh Rogin she would say to Clinton if she had the opportunity:

You lied on me. . . . And you are supposed to be for women? You call that [being] for women, what you done to me?

A few general observations:

1. We are not always aware of how others perceive us. A colleague of mine who is not noted for a restrained courtroom style once asked a prosecution witness “Are you known as a big BS’er?” The prosecutor objected. The court sustained the objection, stating “He is probably the last person to know that.”

2. Being for women does not mean that you unquestioningly accept every statement made by a woman or a girl.

3. Taylor, according to Clinton’s account in Living History, claimed that Shelton had “made up her story.” Clinton did not believe this. However, her personal opinion in the matter was irrelevant to her responsibilities. Sometimes lawyers have to say to themselves “I have an opinion, but I could be wrong.”

Now, Shelton doesn’t believe anyone would have said those things about her. Therefore, Clinton must have made them up.

It’s not that simple.

In any case in which the accuser is known to the accused, defense counsel typically gets an earful from the defendant and his family and friends about the character of the accuser. (We know from the bail modification motion that Taylor had family in the area, and that some of them suffered financial hardship as a result of his incarceration.)

The things defense lawyers are told may be accurate, may have a grain of truth but reflect gross distortion, or may be made up out of whole cloth.

The terminology used to describe the past accusations could include accusations of far lesser transgressions than rape. It could include transgressions that were not sexual at all.  It would not be limited to transgressions that came to the attention of law enforcement.

It could include accusations that were truthful but were not believed by whoever reported them to Clinton.

Clinton would have had to be out of her mind to fabricate the contents of the affidavit. In that circumstance, a report giving Shelton a clean bill of mental health would have grossly and unnecessarily embarrassed the defense. Clinton was not planning a career in criminal defense, and her potential professional and political base was the feminist movement. For a feminist a few years out of law school, the Taylor defense was a journey to the dark side.

Clinton’s credibility with Taylor would have been diminished had she brushed off the issues that were being raised about Shelton. Sometimes clients need to hear “I looked into that, and it didn’t help us any.” Clinton’s in-person consultation with the Brooklyn serology expert would also have enhanced her standing with Taylor.

Notwithstanding his initial denial of criminal conduct, she ultimately persuaded him to accept the plea offer even though it meant going back to jail. Somewhere along the line, there was a come-to-Jesus speech, undoubtedly made more effective by her diligence.

Signing off for now…

Posted in Kathy Shelton, Thomas Alfred Taylor, Tommy Taylor | Tagged , , , | 4 Comments

What happened that night and what happened in court

The offense took place on May 10, 1975 in Springdale, Washington County, Arkansas. The victim, Kathy Shelton, was 12 years old.

The defendant was Thomas Alfred Taylor. He was 41 at the time of the offense; he turned 42 not long before his sentencing.

There appears to be no dispute that Shelton was acquainted with Taylor prior to the offense.

My primary source where the details are concerned is a 2008 article written by Glenn Thrush, then with Newsday and now with Politico. Here’s a link to the (supposedly) printer-friendly version.  (This format is easier to read on a smartphone.)

Other sources include the court records (microfilmed papers and microfilmed docket entries), a taped conversation Clinton had with a reporter about the case some years later, and an item about the arrests that appeared in the Northwest Arkansas Times on May 14, 1975. I also reviewed the brief discussion of the case in Clinton’s 2003 book, Living History.

This is the audio of the conversation (6 minutes, 7 seconds):

This is the news account:

Thrush’s account was an exercise in reconstruction. He obtained the case file from the Washington County Sheriff’s office pursuant to the Freedom of Information Act. He interviewed retired Sergeant Dale Gibson, who had been the lead investigator in the case. (Gibson, who died in 2015, was not related to Mahlon Gibson, then the Washington County Prosecuting Attorney.)

Additionally, Thrush interviewed another male charged in the incident; this man had been 15 years old at the time. Thrush also interviewed Shelton.

May 9, 1975 was a Friday. Shelton went to a sleepover at a friend’s house. Some time after midnight, Thomas Taylor showed up at the house with his 20 year old cousin. They invited Shelton to go for a ride. She accepted, joining them in Taylor’s pickup truck. They later picked up a 15 year old boy that Shelton knew. The group went bowling. Taylor bought a pint of whiskey and poured some into Shelton’s Coke.

Somewhere around 4:00 am (this is the time stated in the court papers), Taylor stopped the truck in a ravine near a highway intersection. Taylor and his cousin went for a walk, and the juvenile had intercourse with Shelton in the cab of the pickup.

The juvenile exited the vehicle. Taylor entered and got on top of Shelton. The juvenile heard Shelton scream and saw Taylor hitching up his pants. According to him, Shelton then yelled “You all planned this, didn’t you?” They warned her against telling anyone what happened.

Shelton, accompanied by her mother, walked into a hospital emergency room at 4:50 am. The examination confirmed that she had had intercourse.

Taylor and his cousin were taken into custody at 6:30 am; the juvenile was arrested the following evening. The juvenile admitted having intercourse with Shelton. Taylor, however, claimed that he had driven all the passengers home that night without stopping in the ravine.

Taylor’s undershorts were seized; they were stained. They were ultimately sent to the crime laboratory, and tests confirmed the presence of blood and semen.

No formal charges were filed against the cousin, and he was released.

Taylor and the juvenile were charged with first degree rape. (Forcible rape, at that time, was called first degree rape in Arkansas. The former phrase may seem redundant, but is used to distinguish the offense from statutory rape.)

The probable cause affidavit stated that Shelton had told the investigator that Taylor had raped her, that Shelton had provided the names of two witnesses, that one of those witnesses had acknowledged overhearing Taylor having sexual relations with Shelton, and that a doctor’s examination had confirmed that she had had sexual relations consistent with the time frame stated.

What happened in the juvenile proceedings is not public knowledge; those records are sealed. Clinton did not, by any account other than that of Shelton, represent the juvenile.

She was, however, appointed to represent Taylor. He had originally been assigned a public defender, but demanded a female attorney.

She filed a motion to reduce his bail, with the result that he was released some two months after his arrest.

She filed an assortment of pretrial motions, most notably one for a psychiatric examination of the victim. Her supporting affidavit stated:

I have been informed that the complainant is emotionally unstable with a tendency to seek out older men and to engage in fantasizing. I have also been informed that she has in the past made false accusations about persons, claiming they had attacked her body. Also that she exhibits an unusual stubbornness and temper when she does not get her way.

I have also been told by an expert in child psychology that children in early adolescence tend to exaggerate or romanticize sexual experiences and that adolescents with disorganized families, such as the complainant’s, are even more prone to such behavior.

The docket entry denying that motion reads “Hearing on Motion for Psychiatric Examination — Motion denied. Defendant objects.”

Shelton did not become aware of the affidavit until 2008.

Clinton asked for a list of prosecution witnesses. The list included Berwyn L. Monroe, the state toxicologist, who was prepared to testify about the tests performed on the undershorts, and Dr. Frank DeSandre, an obstetrician/gynecologist. Presumably, Dr. DeSandre was the physician referred to in the probable cause affidavit.

Clinton also pressed for an independent examination of the undershorts. The crime lab had cut out the stained portion and discarded it after testing it; what was left was turned over to her. She took the undershorts to Brooklyn, where she consulted a renowned serology expert; he advised her that the slight trace of a stain that remained was too small a specimen to test.

She never sought to exclude any forensic evidence, nor would the discarding of the tested portion of the undershorts have been grounds for an order doing so. This mistake was something about which to cross-examine the toxicologist had the case gone to trial, and something about which to argue to a jury.

On the prosecution side, the victim was exasperated after being asked the same questions over and over. Her mother’s husband had recently deserted their home. Her mother wanted to avoid the humiliation of a trial. She coached her daughter’s statements and interrupted interviews.  Mother and daughter both wanted an ending to the proceedings.

That ending came in the form of a plea bargain.

On November 4, 1975 Taylor pled guilty to unlawful fondling of a child under 14 and was sentenced to five years, with the last four years suspended and the first year to be spent in the county jail. He was given two months credit for time served and was allowed work release. He was released from jail before the summer of 1976. He completed his probation term and was discharged on November 4, 1980. He relocated to Missouri and died in 1992. Thrush found no record of any serious subsequent charge.

Shelton told Thrush that Clinton was “just doing her job” and that “Everybody has the right to be represented in court.”  That assessment changed.

In 2014, Alana Goodman, writing for the Free Beacon, discovered tapes of interviews Clinton had given to Arkansas reporter Roy Reed in the early eighties. There was an excerpt in which Clinton discussed the Taylor case, although Taylor was not mentioned by name. Clinton did not, as widely reported, state that she knew he was guilty, but she did (improperly) express her personal opinion that his claim of innocence was false. She discussed the crime lab’s error in discarding of the stained portion of the undershorts, her consultation with the Brooklyn expert, and her successful effort to get the charge reduced. She laughed several times during the conversation.

Goodman talked to Shelton briefly after the discovery of the tapes, but Shelton declined an interview:

The article was followed by a link to the “full case file.”  I previously posted that link.

Not long afterwards, Josh Rogin, then with The Daily Beast and now with the Washington Post, interviewed Shelton. She told him her memories of the proceedings were spotty. She also said “Hillary Clinton took me through hell.”

She recounted identifying both males through a one-way glass and passing a polygraph test. Here ‘s Rogin’s Daily Beast account:

In August 2016, Shelton granted an interview to Goodman. By this time Goodman was working for the Daily Mail, a British publication. Shelton’s name was disclosed for the first time:

The vilification of Clinton intensified.

There are three things I will discuss in more detail in later posts: the affidavit about the victim, the Brooklyn consultation, and the taped interview. While Shelton saw the court process in a different light after learning about the affidavit and the tape many years afterwards, neither of these things affected her actual court experience.

The question the critics ignore is this: how was Kathy Shelton’s court experience different from what it would have been had some attorney other than Clinton represented Taylor?

The best possible court outcome for the victim of a sexual assault is for the defendant to plead guilty to an unreduced charge and throw himself upon the mercy of the court. However, the decision whether to plead or to go to trial is solely that of the defendant. No attorney can compel a client to plead guilty.

From the court records and from Rogin’s account, it does not appear that Shelton ever testified or even saw the inside of a courtroom. According to Rogin, she did not recall ever meeting Clinton. She thought Taylor had gotten a long-term sentence.

While Thrush reports that the judge who took the plea questioned Shelton in court, I believe this is an error. A judge taking a plea is required to determine whether there is a factual basis for that plea, but this entails questioning the defendant, not the victim or any other witness.

Here’s what Shelton has had to say about what happened in court in 1975:

I mean, she put me through a lot at 12 years old. I mean, I had to go look through this window and ID these guys. [This is from the video that accompanied the Daily Mail article.]

Identification procedures normally take place in the very early stages of a prosecution. Any such procedure here would most likely have taken place before Clinton’s entry into the case, and a defendant has no ability to compel a lineup or showup.

And I think she got them both off on a technicality of losing something. And she lost it on purpose. It wasn’t lost. [Daily Mail video.]

Defense attorneys are not the custodians of the prosecution’s evidence. The only evidence that was “lost” was the portion of the undershorts that the crime lab discarded after testing.

There was no pretrial order that excluded evidence or otherwise handicapped the prosecution. There was no “technicality”, there was a plea bargain. An issue with Taylor’s undershorts would not have affected the juvenile proceedings. Clinton did not, in any event, represent the juvenile.

Clinton was able to block the admission of forensic evidence that linked her client to the crime. [Goodman’s words in the Daily Mail article.]

There are two ways in which attorneys seek to block forensic evidence that they do not want admitted at trial. One way is to file a pretrial motion asking the court to exclude the evidence. That did not happen here. The other way is to object to the admission of the evidence at trial. This case did not go to trial.

Shelton said one of her worst memories of the case was being questioned repeatedly by appointed experts. [Goodman again.]

The court record does not show the appointment of any experts, and how many times a victim or other prosecution witness is interviewed is up to the prosecution.

After the Daily Mail story broke, an Oregon woman named Angie Welk set up a GoFundMe page for Shelton:

The page includes what appears to be a first-person account by Shelton. (This may be an as-told-to account.) It states:

Hillary then began to attack my character, forcing me to undergo multiple polygraph tests where I was asked explicit sexual questions I didn’t even understand. Next I was sent for a psychiatric examination.

UPDATE:  What I quote above was scrubbed from the GoFundMe page after the Washington Post published an article on October 11, 2016 refuting the claims about the evaluation and the polygraph. Fortunately, the reporter (Glenn Kessler) had done a screen capture. Here’s his account:

It is up to the prosecution whether to ask a victim or any other witness to undergo a polygraph examination; a defendant has nothing to say about whether such an inquiry takes place. And, any psychiatric examination would have been arranged by the prosecution.

Given all of this, I see no basis for believing that Hillary made Shelton’s court experience any more difficult than it would have been with another defense attorney.

That still leaves the question, however, of whether Hillary’s handling of the matter reflects on her present character. She obviously should not have made the disclosures that she made on the tape, but that lapse occurred some 30 years ago.

Enough for now. Next topic is the affidavit.

Posted in Kathy Shelton, Thomas Alfred Taylor, Tommy Taylor | Tagged , , , | 4 Comments

Another little correction

In the procedural history, I inadvertently left the words “she has” out of the affidavit in support of the motion for psychiatric evaluation.  This has now been corrected.

Posted in Kathy Shelton, Thomas Alfred Taylor, Tommy Taylor | Tagged , , , | Leave a comment

Correction re Taylor procedural history

About an hour ago, I corrected a date in the procedural history.  The Motion for Psychiatric Examination was denied on July 29, 1975.  My apologies.

Posted in Kathy Shelton, Thomas Alfred Taylor, Tommy Taylor | Tagged , , , | Leave a comment

Taylor procedural history

Working from the microfilmed court papers and the microfilmed docket entries, I put together a procedural history of the case:

I included the name of the victim (Kathy Shelton) because she recently went public. (I do not doubt that she was the victim of a crime.)

My next post will discuss the events that gave rise to the prosecution. I rely primarily on the article Glenn Thrush wrote for Newsday in 2008. It is the most cohesive narrative I have found:

There are references in the court papers to a statement made by Taylor when he was arrested. The Thrush account indicates that Taylor, in that statement, denied any wrongdoing but placed himself in the company of the victim — and the two other witnesses she identified — close to the time of the offense.

Stay tuned …


Posted in Kathy Shelton, Thomas Alfred Taylor, Tommy Taylor | Tagged , , , | 2 Comments

Arkansas v. Taylor — docket entries

The 1975 case of State of Arkansas v. Thomas Alfred Taylor has attracted a great deal of attention — Hillary Clinton was defense counsel.  The court papers are online:

Because claims have been made that those papers do not substantiate, I obtained the docket entries (a roughly chronological listing of the documents and rulings in the case).  I was wondering if anything was missing from the microfilmed papers.

The docket does show some rulings that are not in the papers.  (Sometimes court rulings are simply entered on the docket, without a corresponding written order being prepared and signed.)

Contrary to what has been widely asserted:

The complainant was not compelled to undergo a psychiatric evaluation.  Hillary’s motion seeking such an evaluation was denied.

No ruling was made excluding any forensic evidence.  In fact, no motion was even made seeking such a ruling.

Here are the docket entries:

More to come …




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