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extracted/summaries/house-oversight-nov/17/house-oversight-017240.txt

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+4.2.12
+WC: 191694
+The only theory on which I thought she could possibly succeed was that Brooke's mother had no
+right to surrender her daughter's privacy and that Brooke, now approaching adulthood, should
+have control over her own image. Ultimately the court ruled, in a bizarre opinion, that Brooke had essentially waived her right to
+privacy by allowing the photographs to be published earlier, and by pursuing a career in which she
+has relied on her sexuality for her success. The court put it...

extracted/summaries/house-oversight-nov/17/house-oversight-017244.txt

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+4.2.12
+WC: 191694
+The First Amendment has undergone more change in the past fifty years than it had in the first
+170 years of its existence. There are several areas, however, where the First Amendment remains in grave danger. Following the
+publication by several Scandinavian newspapers of cartoons that depicted Mohammad, there were
+threats of death and acts of violence. This led the Yale University Press to decide not to include
+these cartoons in an academic book about the controversy. This act...

extracted/summaries/house-oversight-nov/17/house-oversight-017246.txt

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+Here is how [ find
+author]
+-, in his book
+ describes the origins of this lifelong collaborative effort.
+[Justice Goldberg] called his law clerk Alan Dershowitz into his office and advanced the
+decidedly immodest idea of using the Constitution to end the death penalty in America. "The Eighth Amendment prohibits cruel and unusual punishment," Goldberg told
+Dershowitz. "What could be more cruel than the deliberate decision by the state to take a
+human life?"
+Alan Dershowitz immediately understood...

extracted/summaries/house-oversight-nov/17/house-oversight-017247.txt

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+Just five years
+earlier, Chief Justice Earl Warren had written in Trop v. Justice Goldberg asked me to talk to Justice Brennan and see
+what his views were. Unless Justice Brennan agreed to join, the entire project would be scuttled,
+since Justice Goldberg, the Court's rookie, did not want to "be out there alone," against the chief
+justice and the rest of the Court. I had previously met Justice Brennan several times over the preceding few years, since his son,
+Bill, was my classmate and...

extracted/summaries/house-oversight-nov/17/house-oversight-017248.txt

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+4.2.12
+WC: 191694
+Justice Brennan had agreed to join a short dissent from the denial of certiorari in Rudolph v. In light of the trend both in the country and throughout the
+world against punishing rape by death, does the imposition of
+the death penalty by those States which retain it for rape violate
+"evolving standards of decency that mark the progress of
+[our] maturing society," or "standards of decency more or less
+universally accepted"?
+2. One extreme criticism appeared in the New...

extracted/summaries/house-oversight-nov/17/house-oversight-017249.txt

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+This is what the Georgia Supreme Court said:
+With all due respect to the dissenting Justices we would question the judicial right of any
+American judge to construe the American Constitution contrary to its apparent meaning,
+the American history of the clause, and its construction by American courts, simply
+because the numerous nations and States have abandoned capital punishment for rape. First we believe the history of no nation will show the high values of woman's virtue and
+purity that...

extracted/summaries/house-oversight-nov/17/house-oversight-017250.txt

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+4.2.12
+WC: 191694
+The strategy was simple in outline: The Supreme Court should not be allowed the luxury of
+deciding the issue of capital punishment as an abstraction; instead, it must be confronted with the
+concrete responsibility of determining the immediate fates of many hundreds of condemned
+persons at the same time. In this way, the Court could not evade the issue, or lightly refuse to
+decide it if the Court's refusal would result in the specter of mass executions of hundreds of
+convicts....

extracted/summaries/house-oversight-nov/17/house-oversight-017251.txt

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+4.2.12
+WC: 191694
+This would not, unfortunately, be the High Court's last word on the subject. Chief Justice
+Berger, in his dissenting opinion, provided the states with a roadmap as to how to draft death
+penalty statutes that might pass constitutional muster with a majority of the justices. What ensued
+was a constitutional ping pong match between proponents of capital punishment and abolitionists;
+the proponents would draft new statutes, and the abolitionist lawyers would challenge them...

extracted/summaries/house-oversight-nov/17/house-oversight-017252.txt

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+4.2.12
+WC: 191694
+Chapter 12: The death penalty for those who don't kill: Ricky and Raymond Tison
+The story of the Tison case was the stuff of films and television dramas. Beyond the tragic facts of the case was the important legal issue they presented, since neither
+Ricky nor his brother Raymond Tison actually killed anyone. Nor did they intend anyone to die
+when they helped their father Gary and his cellmate Randy Greenawalt escape from prison. And for playing that role Ricky and
+Raymond...

extracted/summaries/house-oversight-nov/17/house-oversight-017253.txt

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+4.2.12
+WC: 191694
+The brothers had never had a "home father." They referred to Gary as their "prison father," since
+he had spent most of his adult life behind bars, having been convicted of armed robbery and other
+predatory crimes. On the way back to prison from a court appearance, Gary had overpowered the guard, killed him,
+took his gun and escaped. Before he could escape, Gary had to get himself removed from the "escape risk" list and
+maximum security-to establish a sense of trust in him by...

extracted/summaries/house-oversight-nov/17/house-oversight-017254.txt

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+But the escapees were keeping
+to back roads in the old white Lincoln supplied by their Uncle Joe, a marijuana dealer. At about the same time, a young marine named John Lyons was driving his family on a vacation. About an hour into their road trip, John saw a young man standing on the side of the road next to
+a white Lincoln waving his arms for assistance. Gary stopped and the Lyonses were ordered out of the Lincoln while the men cleaned out
+the Mazda, put their guns in it, and loaded the...

extracted/summaries/house-oversight-nov/17/house-oversight-017255.txt

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+4.2.12
+WC: 191694
+The largest manhunt in Arizona history was under way, involving patrol cars, helicopters, search
+dogs, roadblocks, and a sophisticated communications system. The Tisons were exhausted, and low on money. Gary decided that they had to make a run for the
+Mexican border, risky as that was. At 2:58 in the morning of August 11, a van approached a police roadblock. They knew, but the Tison's didn't, that there was a second roadblock
+on the other side of the pass.

extracted/summaries/house-oversight-nov/17/house-oversight-017256.txt

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+The media presented the recurrent vision of the murdered toddler and expressed the view that "if
+they hadn't gotten Gary Tison and Greenawalt out, none of this would have happened." The
+press demanded the gas chamber. One editorial expressed chagrin that anyone had been captured
+The two surviving brothers were tried and convicted of the murders, based on the account they
+had given the authorities. Under the laws of felony murder and conspiracy, they were as guilty of
+murdering the Lyons' family...

extracted/summaries/house-oversight-nov/17/house-oversight-017257.txt

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+4.2.12
+WC: 191694
+Before we filed our petition, I had received several phone calls from anti-capital punishment
+lawyers imploring me not to file a petition for certiorari in the Tison case. "You may not have five any more." He urged me to leave well enough alone:
+"We have Enmund. But if the Supremes take your case and reverse or limit Enmund, people will die because of you. You have to go by the numbers."
+I understood his reference to "the numbers" as meaning two different things: First the...

extracted/summaries/house-oversight-nov/17/house-oversight-017258.txt

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+I began my argument with a simple statement that I thought would be beyond any dispute:
+"The State of Arizona seeks to execute two young men who it acknowledges lacked the
+specific intent to kill, and did not, in fact, kill."
+I was immediately interrupted by Justice White, the author of the Enmund majority opinion on
+which I was relying:
+"Did you say the state concedes what?"
+I repeated my point:
+"The state concedes that there was no specific intent to kill, and that there was no...

extracted/summaries/house-oversight-nov/17/house-oversight-017259.txt

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+Scalia asked me what my position would be if one bank robber had a gun and the other one
+doesn't and the one with the gun "throw[s] the gun to the trigger man, as the policeman's
+approaching him, he says, 'I need a gun,' and I throw the gun to him...I don't care whether he
+kills the policeman or not."
+I had prepared for every likely question I might be asked by the justices, but the idea of a gun
+being throw by one robber to another had never occurred to me. I quickly recalled the facts of the...

extracted/summaries/house-oversight-nov/17/house-oversight-017260.txt

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+4.2.12
+WC: 191694
+I was reminded of Chief Justice Berger's bear baiting hypothetical in the I Am Curious Yellow
+case, but this time the stakes were much higher. I answered the Justice's question:
+No. In Enmund the guns were provided. What Your Honor, Justice Scalia, is asking for, in a sense, is a return to the felony murder
+rule where guns are provided. The dialogue continued:
+Justice:
+In Enmund, had he provided the gun?

extracted/summaries/house-oversight-nov/17/house-oversight-017261.txt

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+4.2.12
+WC: 191694
+He was the one who planned the robbery. One of the codefendants, Greenawalt, directed what went on in the penitentiary. Their father directed what went on thereafter. There are findings by the Arizona Supreme Court that it was not necessary, that it was
+spontaneous, it was not part of the original plan. This is just like Enmund
+In Enmund there was spontaneity.

extracted/summaries/house-oversight-nov/17/house-oversight-017262.txt

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+Now it was the
+State of Arizona's time to argue. The Attorney General was hardly interrupted as he delivered his
+argument. The Attorney General acknowledged that this "would be different," and that the brothers
+"presence at the scene" is "essential," but he insisted that they were "present," even if not right
+next to the car in which the shootings occurred. In light of the Attorney General's concessions, I decided
+to point the Court to the record evidence that the brothers were not at the scene...

extracted/summaries/house-oversight-nov/17/house-oversight-017263.txt

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+4.2.12
+WC: 191694
+The majority opinion began its analysis with the following acknowledgment:
+Petitioners argue strenuously that they did not "intend to kill" as that concept has been
+generally understood in the common law. As
+petitioners point out, there is no evidence that either Ricky or Raymond Tison took any
+act which he desired to, or was substantially certain would, cause death. °
+When I read these words, I thought that we had surely won. Justice Sandra Day O'Connor, who had dissented in...

extracted/summaries/house-oversight-nov/17/house-oversight-017264.txt

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+4.2.12
+WC: 191694
+She then went on to create a new category of crime that warranted execution even in the absence
+of a specific intent to kill:
+We hold that the reckless disregard for human life implicit in knowingly engaging in
+criminal activities known to carry a grave risk of death represents a highly culpable mental
+state, a mental state that may be taken into account in making a capital sentencing
+judgment when that conduct causes its natural, though also not inevitable, lethal result....

extracted/summaries/house-oversight-nov/17/house-oversight-017265.txt

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+4.2.12
+WC: 191694
+Eventually, after a long and torturous road through the Arizona courts, the death penalties against
+Ricky, and Raymond Tison were reversed. They would not be executed, despite the Supreme
+Courts green light. Once again, as with the issue of obscenity, the Highest Court did not get the
+last word. I
+replied assuring him that I had checked, and that Jews and Christians go to the same heaven, so
+that he didn't have to convert."1
+6 Another one of my clients, a far more...

extracted/summaries/house-oversight-nov/17/house-oversight-017266.txt

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+4.2.12
+WC: 191694
+Chapter 13: Using Science, Law, Logic and Experience to Disprove Murder
+Introduction
+In 18
+ Oliver Wendell Holmes, Jr. taught us that the life of the law has not been logic—it has
+been experience. The Bible
+recounts the murder of Abel by Cain. That crime was solved by God questioning Cain: "Where is
+your brother Abel?" Cain's evasive answer -"Am I my brother's keeper?" — convinced God, and
+the reader, of Cain's guilt. Both the Bible and Shakespeare also recount cases in...

extracted/summaries/house-oversight-nov/17/house-oversight-017267.txt

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+4.2.12
+WC: 191694
+This chapter tells the story of some of the many murder and attempted murder cases I have
+litigated over the past 50 years. In many of them, I use science not only as a shield to protect my
+client, but also as a sword to prove misconduct on the part of the prosecution, police or
+laboratory technicians. Some of the cases are well known. Most of my cases have been appeals from convictions. This perception was
+solidified by the approach many judges, such as the well respected...

extracted/summaries/house-oversight-nov/17/house-oversight-017268.txt

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+4.2.12
+WC: 191694
+6 In one case a client who was acquitted of murder was subsequently convicted of an entirely different type of
+crime. I did not represent him the second time. He was convicted.
+181
+HOUSEOVERSIGHT017268

extracted/summaries/house-oversight-nov/17/house-oversight-017269.txt

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+4.2.12
+WC: 191694
+OJ Simpson and Claus Von Bulow
+My two most famous-infamous?— cases involved homicide: the OJ Simpson double murder
+prosecution; and the Claus Von Bulow assault with intent to kill (or attempted murder)
+prosecution. I have written books about both the Von Bulow and Simpson case, detailing how
+science was used to challenge the prosecution's case. Among the reasons I took the case was that Simpson was
+facing the death penalty, and I have a policy of generally accepting capital...

extracted/summaries/house-oversight-nov/17/house-oversight-017270.txt

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+The jurors were convinced by this and other evidence that the police had dripped
+the blood from vials onto the sock to make it appear that the sock Simpson was wearing during
+the murders had been splattered with blood at the crime scene. They acquitted
+Simpson of killings for which a subsequent civil jury (with different lawyers) found him financially
+My expertise in the science of disproving murder had been at the center of my earlier famous case
+involving Claus Von Bulow. Von Bulow's original...

extracted/summaries/house-oversight-nov/17/house-oversight-017271.txt

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+4.2.12
+WC: 191694
+"My father didn't kill my mother": the case of Dr. William Sybers
+The call came from a young woman pleading with me to take her father's appeal. "It's just like the Von Bulow case," the
+daughter insisted. She died
+of natural causes." (No one seeking my help ever tells me their case is "just like" O.J. In these respects, it was like the Von Bulow and Simpson cases, but in the
+Von Bulow case, the evidence, upon reexamination, pointed to innocence, and in the Simpson
+case, a...

extracted/summaries/house-oversight-nov/17/house-oversight-017272.txt

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+The case
+was now on "the front burner." It was also on the front pages of local newspapers. Boning to pressure from the media, the Governor of Florida appointed a lawyer named Harry
+Shorstein-who was then the State Attorney in Jacksonville— to be a special prosecutor. With the single-minded
+determination of an inspector Javert, Shorstein set out to get Dr. On February 18, 1997, Shorstein had Sybers indicted for capital murder. The indictment alleged
+that he had murdered her with an "unknown...

extracted/summaries/house-oversight-nov/17/house-oversight-017273.txt

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+The jury, after only a few minutes of deliberation, unanimously convicted Dr. After
+graduating from NYU law school, he served as an appeals lawyer in the New York Legal Aid
+Society where he argued hundreds of criminal appeals. Then he worked in a large law firm and at
+the American Jewish Congress before starting his own boutique appellate law firm. I work on many of my most difficult cases with the firm-Dershowitz, Eiger and Adelson. We began by reviewing the scientific evidence, as we had in...

extracted/summaries/house-oversight-nov/17/house-oversight-017274.txt

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+We later learned that Harry Shorstein-who argued that appeal-had information that should
+have led him to know or at least suspect that the test results he had presented to the jury were at
+best highly questionable and at worst flat out false. We filed a complaint with the appropriate authorities, since such conduct
+on the part of the prosecutor raises grave ethical issues. Shorstein then filed a counter-complaint
+alleging— quite absurdly-that the very act of filing a complaint against him...

extracted/summaries/house-oversight-nov/17/house-oversight-017275.txt

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+The only question is who committed it. (Remember the "one armed killer" in The
+Fugitive!)
+Many of my homicide cases have not been who-dunits, but rather, was anything criminal done at
+all. That was the issue in the Von Bulow and Sybers cases. It was also the question presented when
+Ted Binion, the owner of the famous Binion Casino in Las Vegas—the home of the World Series
+of Poker-was found dead in his home on September 17, 1998. Binion's live-in fiancé, Sandra Murphy-a young, sometimes exotic...

extracted/summaries/house-oversight-nov/17/house-oversight-017276.txt

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+The jury deliberated for 8 days and found the defendants guilty. Since the jury could have
+convicted based on that theory alone, if we could undercut it, Murphy would have to be given a
+new trial. One important pillar of the burking theory was a "bruise" on Binion's chest that had been
+photographed. Baden hadn't examined Binion's body, he had to rely on the photograph
+alone. He concluded that the bruisewhich appeared consistent with the shape and size of
+Binion's shirt button—had been caused by...

extracted/summaries/house-oversight-nov/17/house-oversight-017277.txt

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+4.2.12
+WC: 191694
+The prosecution responded that the only reason he wasn't in court was because my client had
+murdered him. Our argument, they claimed, paralleled the classic definition of "Chutzpah": the
+young man who murders his parents and then demands mercy from the court on the ground that
+he is an orphan. But the conclusions that Murphy had, in fact, murdered Binion, of course,
+begged the question to be decided by the jury: did Murphy, in fact, murder him? Although hearsay statements—...

extracted/summaries/house-oversight-nov/17/house-oversight-017278.txt

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+4.2.12
+WC: 191694
+The jury at the second trial, having heard our new scientific evidence, acquitted Murphy of
+murder. They believed neither the burking nor the cocktail theory. Murphy now lives in California,
+where she runs an art gallery.
+even though there was little other evidence of Binion's state of mind before his death. But
+if the statement was relevant to show Binion's state of mind at the time he made the
+statement, the exception still does not allow the statement to be used as evidence...

extracted/summaries/house-oversight-nov/17/house-oversight-017279.txt

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+4.2.12
+WC: 191694
+Assisting Mercy Suicide
+Another highly emotional case in which science was used to establish the immediate cause of
+death involved the mercy killing by a doctor of his cancer-ridden wife. Although the media characterized Patricia Rosier's death as a "mercy killing," it is more aptly
+described as a "mercy suicide," because she alone made the decision to end her life. Mercy killing— the taking of the life of another person who is suffering and usually no longer
+sentient—is...

extracted/summaries/house-oversight-nov/17/house-oversight-017280.txt

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+When the children learned of this, they pleaded with their
+father not to take his life. No one tried to talk Patricia out of her decision to
+commit suicide, for two reasons: first, she had made up her mind; second, it wasn't really suicide,
+since her act would only hasten her imminent and painful demise by a few weeks. Patricia selected the day and time of her death and planned a formal farewell dinner for her family. After
+dinner they watched the movie Harold and Maude, about an elderly woman...

extracted/summaries/house-oversight-nov/17/house-oversight-017281.txt

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+Peter Rosier was indicted on charges of first-degree murder and
+conspiracy to murder. The prosecution's theory was that the stepfather's ultimate act was merely
+the final stage in a family conspiracy of which Peter was the architect and participant. Suddenly Peter Rosier found himself in jail, facing a possible death sentence in a state that has one
+of the highest execution rates in the country. Right wing commentators, such as Patrick
+Buchanan, compared what Peter did to what the Nazis had...

extracted/summaries/house-oversight-nov/17/house-oversight-017282.txt

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+4.2.12
+WC: 191694
+The Suppression of Science: The Case of Jeffrey MacDonald
+A case in which science has not yet produced a victory-or, in my view, justice is the 40 year
+old "whodunit" involving the murder of the family of Jeffrey MacDonald. I had followed the Jeffrey MacDonald case in the media from its grisly inception on February 17,
+1970, when the wounded Green Beret doctor told authorities that his pregnant wife, Colette, and
+his daughters, Kimberly, five, and Kristen, two, had been...

extracted/summaries/house-oversight-nov/17/house-oversight-017283.txt

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+4.2.12
+WC: 191694
+By the time the victims' bodies were exhumed, a woman named Helena Stoeckley had told police
+and others that she and three friends had been in the MacDonald house on the night of the
+murders and that her friends had committed the crimes. Though Stoeckley's word alone may not
+have been worth very much-she was known to be a drug addict— she provided some details,
+which tended to corroborate her story and the story Jeffrey MacDonald had told the police. The prosecution could...

extracted/summaries/house-oversight-nov/17/house-oversight-017284.txt

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+4.2.12
+WC: 191694
+For example, Helena Stockley testified to the jury that she could not remember where she had
+been on the night of the murders. Since testimony about Stockley's prior ad-missions
+would technically constitute "hearsay" - - that is, testimony by one witness about what another
+witness had said outside the courtroom - - the judge ruled that the jury could hear about
+Stoeckley's hearsay admissions only if [corroborating evidence showed] that they [were]
+'trustworthy.'"
+The judge who...

extracted/summaries/house-oversight-nov/17/house-oversight-017285.txt

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+4.2.12
+WC: 191694
+These dramatic revelations finally came to light because of Dr. Jeffrey MacDonald's search for
+evidence of his own innocence, which he has protested since the beginning of his case. Over
+many years, he and his lawyers filed requests under the Freedom of Information Act, seeking
+access to the government documents on the case the documents that contained the facts that
+were not revealed during the trial. It is a story that raises the following disturbing questions;
+Why would the...

extracted/summaries/house-oversight-nov/17/house-oversight-017286.txt

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+4.2.12
+WC: 191694
+The second problem is that current law makes it nearly impossible to reopen a closed case on a
+second or third writ of habeus corpus. The "great writ" has been severely restricted by Congress,
+and even compelling evidence of innocence does not guarantee a new trial. Such new evidence has now been found, and the Court of Appeals recently ordered the district
+court to consider all the new "evidence as a whole." So the case is far from over. I continue to
+confer on the case with...

extracted/summaries/house-oversight-nov/17/house-oversight-017287.txt

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+4.2.12
+WC: 191694
+The science of eliciting false confessions: the case of Jonathan Doody
+Another murder case that never seems to end involves a man named Jonathan Doody, the son of a
+Thai mother and an American soldier, who was accused of the mass murder of nine Buddhist
+Monks and nuns in Arizona back in 1991. Originally, a motorcycle
+gang was suspected of the crime. Doody, who was 1 at the time, was then arrested and subjected to a similarly pressured 12 hour
+interrogation. The police began by...

extracted/summaries/house-oversight-nov/17/house-oversight-017288.txt

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+Again the state sought review by the Supreme Court. This time their petition was
+denied, and Doody's conviction was finally and definitively reversed. Bail has
+been set at Smillion, which his, of course, impossible for the Doody family, which has no money,
+to raise. If justice delayed is justice denied, then Jonathan Doody has surely been denied justice. The
+thorough decisions of the United States Court of Appeals have all been in his favor, but he
+remains in jail for a crime of which he is now...

extracted/summaries/house-oversight-nov/17/house-oversight-017289.txt

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+4.2.12
+WC: 191694
+Make believe murder: the case of the falling helicopter
+Another case that we won on the basis of science grew out of the making a major motion picture
+directed by Steven Spielberg and John Landis. The film was The Twilight Zone, based on the
+television series by that name. John Landis, already famous for directing Animal House,
+and other mega-hits,
+was directing a segment involving the Vietnam War. The star of that segment was the veteran
+actor Vic Morrow. The scene at issue...

extracted/summaries/house-oversight-nov/17/house-oversight-017290.txt

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+4.2.12
+WC: 191694
+Attempted Murders: Killing a Corpse and the "Abraham Defense"
+A case that involved both science and logic arose in the context of the attempted murder
+prosecution of a young man who had shot a corpse, believing that it was still alive. The case
+presented a series of perplexing scientific and logical riddles: When is a person who has been
+mortally wounded actually dead? Can you kill a man who is already dead? On the first appeal, which I argued in Brooklyn, the court reversed...

extracted/summaries/house-oversight-nov/17/house-oversight-017291.txt

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+4.2.12
+WC: 191694
+Anatoly Sharansky: Death For Spying For the United States
+Other potential death cases raised issues not of science, but of politics, diplomacy and economics. His name (at the time) was Anatoly Sharansky (now Natan Sharansky). Sharansky was a prominent and vocal defender of human rights, not only of his fellow Soviet
+Jews but of all victims of Soviet oppression. He worked closely with Andrei Saklarov, the father
+of the Soviet nuclear weapons program who had become the leading...

extracted/summaries/house-oversight-nov/17/house-oversight-017292.txt

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+If the world
+got to know Anatoly as a human being, rather than merely as another prisoner of conscience, it
+would become more costly, in terms of international reactions, to the Soviet Union if he were to
+die in the Gulag. We enlisted his very beautiful, very
+photogenic, but very shy wife (Natasha, now Avital) in our campaign. Ultimately, after 9 years of unremitting efforts, we were able to arrange a prisoner exchange that
+resulted in the release of an East German spy, who I had been asked to...

extracted/summaries/house-oversight-nov/17/house-oversight-017293.txt

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+4.2.12
+WC: 191694
+My most ungrateful homicide client: Angela Davis
+Clients whose cases I have helped to win generally respond in one of two ways: some express
+great, sometimes excessive, gratitude. Others behave as if the case had never happened and you don't exist. During the year that I was a visiting scholar at the Center For Advanced Studies and Behavioral
+Science at Stanford, I was asked to consult on several aspects of the Angela Davis murder case. Davis, who was one of the leaders of the...