Friday, March 25, 2011

Els Clottemans-Murder in Blue Skies

A parachute is an unlikely murder weapon. It is designed to save lives, not extinguish them. But it was Els Van Doren’s parachute that killed her on November 18, 2006 when both the main and back up parachutes failed to open causing her to collide with the earth at 120 miles per hour. The 38 year-old mother of two was an experienced skydiver and knew the risks of the sport-risks that included serious injury and death. While the laws of man regulate the activity of skydiving, it is the laws of physics that dictate the consequences of decisions made by its participants; some of those decisions are made in the sky in a split second, others are made on the ground after much deliberation. Els Van Doren did not make the decision that caused her death; rather, another skydiver made the decision for her. According to the police and prosecutors, it was Els Clottermans that sabotaged Van Doren’s parachute.

On October 20, 2010, Clottermans was sentenced to thirty years in prison after a Belgium jury found her guilty of the murder of Van Doren. It is unlikely that an American jury would have ever heard the evidence against Clottermans-much less convicted her. Clottermans, a 26 year-old schoolteacher, was a friend of the victim and initially escaped attention. She became a suspect when she attempted suicide shortly before making a second statement to the police. According to the prosecutors, both women were romantically involved with Marcel Somers; he shared his bed on Friday nights with Clottermans and on Saturdays with Van Doren. A week before the murder, Van Doren interrupted the Friday night routine and showed up at Somers’ apartment. Clottermans was consumed with jealousy when Sommers jilted her that evening and took revenge by cutting the straps of the main and reserve parachutes.

The prosecution was able to establish that Clottermans had the motive, means and opportunity to kill Van Doren. Clottermans steadfastly maintained her innocence and there was no forensic evidence that linked her to the crime. The jury also heard testimony from a court-appointed psychiatrist that Clottermans was a narcissistic psychopath and pathological liar-a diagnosis no American jury would have been allowed to consider in determining her guilt. Based on this evidence, the jury accepted the prosecution's case and found Clottermans guilty.

Clottermans’ case underscores the differences between two separate systems of criminal justice used in the civilized world: inquisitorial and adversarial. The judicial system of Belgium, like most of its European neighbors, is based on the Napoleonic Code. The Code Napoleon provides for an inquisitorial system of criminal justice where the court plays an active role in investigating the facts. The investigating judge has a duty of impartiality and is charged with looking for evidence of innocence as well as guilt. The origins of this system date back to the French Revolution and were a vast improvement over the system that predated it. Prior to the Revolution, the laws of France consisted mainly of local customs complicated by various exemptions, privileges and special charters granted by the king or feudal lords.

The criminal justice system in the United States is an adversarial system where the judge acts as an impartial referee between the prosecution and defense. This legal system was also borne of a revolution and provided the accused rights not enjoyed under British rule. Both systems, inquisitorial and adversarial, are designed to search for the truth and attempt to balance the rights of the state in enforcing its laws against those of the accused. However, in the United States, that balance is skewed in favor of the accused reflecting the fact that at the time of the revolution, almost one quarter of the population were convicts sentenced to deportation to colonial America.

In the vast majority of cases, both systems will yield the same results; most of the time the guilty are convicted and the innocent acquitted. No system is perfect, however, and mistakes are sometimes made. If such a mistake was made in Clottermans’ case, it will be the task of the Belgium appellate courts to correct.

Sunday, March 13, 2011

Billy Wayne Cope-What would Homer Cummings do?

The presumption of regularity is a convicted felon’s worse nightmare. An accused is innocent until proven guilty - but only before trial. Once convicted, the presumption of innocence is replaced with the presumption of guilt. Reviewing courts assume that the underlying proceeding was conducted in a fair manner and in accordance with the law. The jury’s verdict is near sacrosanct and rarely disturbed on appeal or in any subsequent proceeding. The problem is that sometimes juries make mistakes. Lies are sometimes believed; the truth, likewise, is occasionally obscured or ignored. The appellate courts are not designed to correct this type of error and will rarely substitute their judgment with that of the jury’s. Unfortunately, when errors of this sort are made, the wrongfully convicted have little recourse.

The case of Billy Wayne Cope is one such example. In the early morning hours of November 29, 2001, his twelve-year-old daughter Amanda was brutally raped and murdered in their Rock Hill, South Carolina home. Two men were arrested, tried, and convicted of numerous offenses relating to the death of this child. Cope was convicted of murder, two counts of criminal sexual conduct, criminal conspiracy, and unlawful conduct towards a child. James Sanders was convicted of murder, first-degree criminal sexual conduct, and criminal conspiracy. The South Carolina appellate courts affirmed the convictions of both defendants. State v. Cope, 385 S.C. 274 (S.C. App. 2009); State v. Sanders, 388 S.C, 292 (S.C. App. 2009).

Cope became the prime and only suspect almost as soon as the crime was reported. The police were disturbed by his odd and seemingly emotionless behavior and his improbable explanation as to the cause of his daughter’s death. Cope was questioned by a number of investigators from both the police and social services. Initially, he denied any involvement. The following evening, the police questioned Cope for several hours into the early morning. In the face of continuing accusations, he repeatedly denied any involvement and offered no objection when the detectives requested a DNA sample. Despite his denials, the police continued to accuse him until finally, in an effort to clear himself, he asked the police to give him a polygraph examination. Experts would later disagree as to whether Cope passed this examination; the polygraph examiner, however told Cope he failed. After that, things went down hill very quickly for Mr. Cope. The accusations continued unabated until, according to Cope, he eventually broke down and confessed to the crime. Several more confessions, including a video taped re-enactment followed over the next couple of days.

Unfortunately for Mr. Cope, his claim that the confessions were coerced and untrue were fully litigated in the trial court and decided against him. Because the jury believed these statements, there is no question that the evidence is legally sufficient to support his conviction. Moreover, that conclusion is binding on reviewing courts and will continue to haunt him through any further post judgment proceedings. The problem is that there is a strong possibility that those statements were false and may in fact be innocent.

The most significant problem is the fact the semen found by the police on and in the body of the victim did not contain the DNA of Mr. Cope. Much to the surprise of the police, the semen was that of James Sanders who was later identified by eye witnesses, fingerprints and DNA evidence found in several unsolved sexual assaults in the surrounding area. At no time did Cope in any of his confessions tell the police that any other person was involved in these crimes. Sanders name did not become known until nine months later when his DNA was found in semen and saliva found on the body and clothes of the victim. By that time Sanders had been identified in the assaults; in he of these he had acted alone; in each case entry was made without damage to the point of entry or waking other any other occupants in the residence.

The most disturbing aspect of this case is the conduct of the South Carolina solicitors (prosecutors). The prosecutor plays a special role in a criminal trial. “He is not only an officer of the court, like every attorney, but is also a high public officer, representing the people of the State, who seek impartial justice for the guilty as much as for the innocent. In discharging his most important duties, he deserves and receives in peculiar degree the support of the court and the respect of the citizens of the county. By reason of his office, he usually exercises great influence upon jurors. His conduct and language in the trial of cases in which human life or liberty are at stake should be forceful, but fair, because he represents the public interest, which demands no victim and asks no conviction through the aid of passion, prejudice, or resentment.” State v. Ferrone, 96 Conn.160 (1921).

Sadly, the prosecutors in this case divorced themselves from their duty as ministers of justice and chose instead to satisfy the public’s demand for vengeance at the expense of a man probably innocent man and to the detriment of the other who is probably guilty. The DNA tests that exonerated Cope and implicated Sanders presented a formidable obstacle to prosecuting either man. Had Cope and Sanders been tried separately, there was a substantial probability that each man would be acquitted leaving a horrific crime un-avenged. convicted. If the confessions are excluded from the equation - either disallowed by the court or not believed by the jury - Mr. Cope would probably be acquitted of the murder and sexual assault charges, and convicted of most, if not all, of the charges that were or could be filed under the general category of neglect.

Likewise, the case against Sanders was problematic. The crime scene investigators were hampered by the admitted filth and chaos of the Cope home - the residence was strewn with trash, swarming with cockroaches, piles of clothing and unwashed dishes. Because the police believed Cope-and no one else - was responsible, they did not look for evidence of an outside intruder. This inadequate investigation, coupled with Cope’s confession to the crime, might have been enough to raise a reasonable doubt as to Sander’s guilt despite the conclusiveness of the DNA evidence.

To resolve the problems presented by this unique factual scenario, the York County Solicitor came up with what has to be considered a brilliant legal maneuver - they charged Cope and Sanders with criminal conspiracy. Although there was no evidence that the paths of these two men had ever intersected before that fateful November night, they glibly asserted that such proof was not necessary. because the evidence showed that both men were guilty; they argued, it must mean that Cope and Sanders did it together. While legally correct, the precise nature of this  folie a deux has not been satisfactorily explained.

This charging decision did solve a number of problems: it allowed the prosecutors to ignore the glaring deficiencies in the police investigation including the uncomfortable suggestion that the police may have extracted a false confession from an innocent man; more importantly it allowed both men to be tried together rather than separately. The court’s decision to try these men deprived both of a fair trial as it effectively conscripted each defendant to act as a prosecutor of the other - substantially easing the burden of the county solicitors and costs of the taxpayers.

In some jurisdictions, the appellate courts would reverse the convictions of both Sanders and Cope. Solicitor Kevin Brackett’s arguments to the jury were clearly improper and designed to distract the jury from the actual facts. It was improper of him to argue that Sanders could not have committed this crime alone and could only have committed it with the assistance of Cope. While the jury did not hear the evidence of Sander’s other crimes, Solicitor Brackett knew that Sanders was quite capable of surreptitiously entering a residence leaving no trace of forced entry and committing this type of crime without waking the other occupants. Brackett also knew that Cope’s two other children were present and there was no evidence that they were awakened during the evening. Instead, he invited the jurors to speculate that these children did witness the event but were too terrified to testify - a dubious proposition considering Cope had been incarcerated for several years by the time of trial.

It is clear that Solicitor Kevin Brackett never seriously considered the possibility that Cope’s confessions were untrue. His closing statement was replete with instances of improper opinion designed to inflame the passions and prejudices of the jurors. He contemptuously dismissed the defense experts claiming they came to South Carolina from other states only to collect a paycheck. Rather than addressing the issues raised, he instead urged the jurors to apply his standards of credibility - standards not authorized by law and clearly inappropriate. He urged the jurors to apply the “Winn-Dixie” test arguing that the credibility of the defense experts should be determined by the likelihood that a juror might bump into them at a local grocery store. He referenced a rule applying to Naval officers in times of combat to improperly argue that a defense pathologist’s testimony should be ignored because he was not present when the autopsy was performed on Amanda’s body. Most egregious however, was the “McCain test” where he argued that no man would confess to the crimes Cope confessed to unless it was true. He invoked the image of Senator John McCain claiming that even after months of torture in a Vietnamese prison camp, McCain and the other prisoners’ never confessed-a claim that is not only highly improper but also patently false.

Cope’s trial was covered by NBC’s Dateline in July 2010. Although he South Carolina solicitors refused to appear on that show, shortly thereafter, they set up a website to correct the impression that Mr. Cope was “railroaded by a justice system that was both corrupt and inept.” That website provides a wealth of information including the trial transcripts and appellate briefs without which an informed decision would be difficult. While there is little doubt that Cope was railroaded, it had nothing to do with an inept judicial system. To the contrary, the solicitors in this case demonstrated enviable skills of advocacy that is prized in the legal profession. No one can seriously argue that the system is corrupt either. There can be little doubt that Solicitor Brackett sincerely believes that Cope and Sanders committed these crimes together; more likely, his failure was in allowing his beliefs to obscure the facts and used his considerable talents to convince the jurors to do likewise.

Most people have never heard the name Homer Cummings. For many years, Mr. Cummings was a distinguished lawyer in the state of Connecticut. He was the founding partner of the Stamford law firm, Cummings & Lockwood, which still exists and bears his name. He was active in politics throughout his life and, from 1933 to 1939, served as attorney general under President Franklin D. Roosevelt. From 1914 to 1924, Mr. Cummings served as the State’s Attorney for Fairfield County. Although he tried and convicted many serious felonies during that time, he is most remembered for a case he did not prosecute.

Harold Israel was arrested for killing a priest on a Bridgeport street corner in February 1924. Father Hubert Dahme was a popular Catholic priest and the community was outraged by the crime. The police conducted an intense search for the perpetrator and a week later arrested Israel. He met the general description of the gunman and, at the time of his arrest, possessed a revolver of the same caliber as the weapon that killed Father Dahme. The case against him was made stronger when seven eyewitnesses identified him as the gunman. Confronted with this evidence, the weak-minded Israel confessed to the crime. He later recanted his confession and maintained his innocence.

Faced with this mountain of evidence, most defense lawyers would have advised Israel to plead guilty in the hopes of avoiding the death penalty. Most juries do not believe evidence that calls into question the truthfulness of a confession and conclude, “he would not have confessed if he didn’t do it.” Most prosecutors agree that false confessions do occur, but argue that they are the exception rather than the rule and usually do not take such claims seriously. Homer Cummings was different. Despite this overwhelming body of evidence - evidence that most prosecutors would accept at face value - Cummings conducted an independent investigation and concluded that Israel was innocent of the crime. In a decision that surprised and angered the local police, Cummings refused to prosecute the case claiming that Israel’s confession was coerced from an exhausted and overwhelmed person of diminished capacity. In a 90-minute presentation to the court he discredited the all of the evidence that the police has amassed against Israel. At the time, Cummings was criticized for his action; today, he serves a role model for prosecutors as a reminder that their duty is ensure that impartial justice is meted out to the guilty as well as the innocent.

Saturday, March 5, 2011

Rex Fowler-A Scientologist run amuck

After just two hours of deliberation, a Colorado jury found Rex Fowler guilty of first-degree murder in the slaying of his former business partner Thomas Ciancio. The case was fairly strait forward and the trial lasted only a few days. There was no question that Fowler killed his business partner; the only question was whether the crime was first or second degree murder. The state claimed the killing was premeditated and intentional; Fowler asserted that Ciancio’s death was not intended but, rather, a tragic accident. He maintained that Ciancio interrupted a botched suicide attempt and was killed in the ensuing melee.

As a practical matter, the jury’s verdict made little difference. His conviction of murder in the first-degree resulted in a mandatory sentence of life imprisonment. Had the jury convicted him of second-degree murder, he was exposed to a maximum penalty of forty-eight years incarceration. At age fifty-nine, it is unlikely that his life expectancy would exceed the likely prison term.

The victim, Thomas Ciancio, age 42, was a decent, hard-working and likable man. Married to his high school sweetheart and the father of four young children, he had been the Chief Operating Officer of Fowler Software Design in the Denver area for several years. He resigned in November 2009 after a dispute with the founder of the company, Rex Fowler. The parting of ways was not amicable and each claimed the other owed them money. Finally, Fowler agreed to pay Ciancio approximately $10,000 in severance pay. A meeting was arranged so that the final settlement papers could be signed. Ciancio,  happy to put the matter behind him, met with Rex Fowler for the final time on December 30, 2009.

When Ciancio arrived at the company, he was shown into a conference room adjoining Fowler’s office. After the formalities concluded, Fowler drew a 9-millimeter Glock pistol and fired three shots any of which, would be fatal, into Ciancio’s head. Fowler then turned the gun on himself and fired one shot. Fowler’s aim on this occasion was not so good; the shot did not kill him and he stumbled into the street - alive but seriously wounded. While no one saw the shooting, several witnesses heard the shots and called the police. Initially, it was thought that Fowler was a victim and, believing the gunman to be alive and armed, the SWAT team was dispatched. A couple of hours later, they gained access to the business and discovered Ciancio’s lifeless body.

Ciancio’s murder, and Fowler’s arrest three weeks later, was local news and generally would not have attracted much attention outside the state of Colorado. Fowler's case, however, became international news when it was learned that he was a scientologist - not just a garden-variety run of the mill scientologist - but an Operating Thetan level number seven (OT 7) - one of the highest and costliest states of spiritual awareness available in the market of spiritual ideas. The glossy promotional pieces used in the church’s direct mail campaign advertise that, by following their copyrighted practices - and at a substantial price - man can attain total spiritual freedom and truth. When one reaches the state of OT, they have the ability, according to the church’s website, to “handle things without having to use a body of physical means” and “handle things without physical support or assistance.” When a man like Fowler - with powers and abilities far beyond those of mortal men - is involved in a murder/suicide attempt, that is something that will attract some media attention. The case was newsworthy, however, not because Fowler possessed some awesome spiritual power unavailable to the impecunious - rather, it drew attention because Fowler, despite having achieved this status, lacked the ability to conform his conduct to even the most basic and fundamental rules of civilized society.

The church of scientology attracts more critics than a stray dog does fleas. Why would a religion that provides the keys to spiritual enlightenment of the magnitude advertised - albeit at a high financial cost -cause so much disconcert among so many people? The most obvious reason is that it does not deliver as advertised. When trying to impress new converts, they claim to be a precise science, while at the same time denying their critics the right to scientifically test their theories. The fact that Rex Fowler discharged a firearm four times and fail in his stated intent to end his own life is a sad testimonial the effectiveness of this religion and a tragic reminder of the injuries that conduct may have on any 'bystanders'.

Second, there is evidence to suggest that the processes used by the church may, in fact be dangerous. The most noteworthy proof of this claim is the tragic case of Lisa McPherson who died while in the care of the church. As a result of her death, adherents of the religion must now sign a release prior to receiving spiritual counseling from the church.

A final reason for criticism is the church’s ruthless treatment of its critics. The victims of this fraud, after spending years of their time and hundreds of thousands of their dollars, are not allowed to complain without invoking the wrath of church management. Unlike Christianity which preaches that one should “turn the other cheek”, the religious scriptures of scientology command them to “to find or manufacture enough threat against [their enemies] to cause them to sue for peace. Don't ever defend. Always attack." Hubbard not only sanctioned, but urged the use of "black propaganda" to "destroy reputation or public belief in persons, companies or nations." According to the church, this policy, called ‘fair game, was cancelled in 1968-a claim that is disproven by the large number of documented instances of harassment and black propaganda that follows in the wake of any criticism. It is a reasonable conclusion that the application of fair game tactics remains a cornerstone of scientology practices.

In a decision widely quoted, judge Breckenridge of the Los Angeles Superior Court wrote “ . . .[scientology], under the pretext of 'freeing humans' is nothing in reality but a vast enterprise to extract the maximum amount of money from its adepts . . . The organization clearly is schizophrenic and paranoid, and the bizarre combination seems to be a reflection of its founder [L. Ron Hubbard].” Many former adherents agree with this assessment. In recruiting new members, their practices work with scientific precision. They claim they are a religion when they are attempting to justify their tax exempt status, deny their staff members a living wage an avoid government regulation. To their membership, however, they are a business that must charge exorbitant prices for the services they render.

When the critic community learned the facts surrounding Fowler’s arrest, it added fuel to their belief in the corrupt nature of this sect. Ciancio had quit the firm because he was upset that Fowler had taken over $150,000 from the company and donated it to some arm of the church of scientology. This type of unauthorized expenditure - a prosecutor might call it embezzlement - along with the general economic downturn, caused the business to fail. Fowler was clearly despondent over his financial ruin and clearly suicidal.

Critics believed that many of the abusive financial practices of the church would become evidence in the trial. The governing financial policy of scientology is, according to Hubbard, to “MAKE MONEY, MAKE MORE MONEY, MAKE OTHERS PRODUCE SO AS TO MAKE MONEY.” According to former members, the church practices “crush regging” where high-pressure sales tactics are employed and the registrars are directed to: “rob the person of every opportunity to say ‘No’”. This “art of hard sell” is incorporated into the sacred and copyrighted writings of the church. The critics were, however, disappointed; Judge Francis Wasserman, who presided over Fowler’s trial, allowed very little evidence of Fowler’s faith and no evidence of the abusive practices previously alleged - a decision that shortened the trial immeasurably and caused many critics to cry conspiracy. Judge Wasserman's decision was correct - this evidence, while interesting, had little relevance to the charge of murder.

Fowler and his wife had been dedicated scientologists for several decades; both had attained the revered status of OT. While it is not known how much money the Fowlers donated to the church over this period, by most people’s standards the amount would be staggering. The $150,000 dollar misappropriation apparently was just a drop in the bucket. Earlier in the year, they had sold their home for over a half million dollars. Like many committed scientologists, the Fowlers had financed theBridge to Total Freedom with credit cards, personal loans and mortgages. With the economic downturn in 2008, credit sources dried up and business turned sour.

Fowler was not the only scientologist to be stung by the credit crunch and recession. In May, 2009, Stephen Brackett, a successful contractor, was despondent over his financial troubles and jumped several hundred feet to his death in Monterey, CA. He was also an OT and had contributed over one million dollars to the church. There are a number of other instances of suicides or attempted suicides among OTs; some resulting from the despondency of financial ruin, and others from the psychosis attributed to the harmful practices of the religion. Most, however, do not commit suicide but are left financially ruined by the ‘donations’ made under the constant demands by the church for ‘MORE MONEY’.

By the time of trial, Fowler was indigent and represented by the public defender’s office. It is the Colorado taxpayers that should be outraged by this fact. When stolen money is ‘donated’ to a church by a defendant, it is difficult to comprehend why the church does not have an ethical or legal obligation to return this money.

While he sits in prison, Rex Fowler should reflect on the sad fact that he is just one of many scientologists that can add ‘convicted of a felony’ to what would otherwise be an impressive resume. He follows in the footsteps of the church founder, L. Ron Hubbard, who was convicted, in absentia, of fraud by a French court in 1978. Hubbard was also an un-indicted co-conspirator in the Snow White case an spent the last years of his life in seclusion hiding from the authorities. Operation Snow White has been described as the largest infiltration of the United States government in history. It involved the use of 5000 covert agents who engaged in the illegal wiretapping and theft of government documents. In August 1978, eleven high-ranking scientologists, including Hubbard’s wife, Mary Sue, were convicted of obstructing justice, burglary, and theft of government property. In September 2003, Reed Slatkin, another OT 7 was sentenced to 14 years for fraud, money laundering, and obstruction of justice for his part in a Ponzi scheme that netted him millions of dollars - much of that money ending up in the coffers of the church of scientology. In October 2009, two branches of the church's operations and several of its leaders were convicted of fraud in a French court. Additionally, there are dozens of other cases involving scientologists - convicted of a wide array of criminal behavior that would serve as a useful primer to students of criminal law.

In November 2009, Nick Xenephon, a member of the Australian Senate, labeled the church of scientology a criminal organization alleging that it engaged in blackmail, torture, violence, labor camps, forced imprisonment, and coerced abortion. He was instrumental in spearheading legislation forming a charities commission charged with ensuring that churches and other charitable organizations are held accountable and satisfy a public benefit test before being afforded charitable status. Such action is long overdue in the United States. After the Supreme Court’s decision in Hernandez v. Commissioner, 490 U.S. 680 (1989) denying the church tax exempt status, the IRS inexplicably did an about face and entered into a number closing agreements with the church in 1993. The details of those closing agreements remained a secret for several years but, at the time, were lauded by church officials as the holy grail - giving them, in the form of tax-exempt status, the legitimization they had long sought after. To this day, the IRS has largely ignored numerous allegations that mirror those made in Australia and failed to revisit the church’s status as a tax-exempt entity - allegations that span decades and include a widespread pattern of abusive behavior and obstruction of justice.

The world may not have heard the last from Rex Fowler. In the criminal justice system, time is often the only difference between a defendant and victim. Fowler, like many others, is a victim of the scientology religion. He many not now realize it, or if he does, may be unable or unwilling to acknowledge it. Only he knows the mental processes and decisions he made that led him down the path of thievery and murder. The church of scientology will never knowingly accept responsibility for their complicity in the death of Thomas Ciancio. Not only do their practices prohibit the acceptance of any organizational responsibility in this type of case, the collective psyche of their members has been ingrained to discard any such suggestion as ludicrous.  His story, like so many others is just a very tiny piece of a very large puzzle - a puzzle that hopefully will be solved sooner rather than later.

UPDATE-March 9, 2011: Mark Rathbun, a former high ranking scientology executive, posted his analysis of the trial. He offers some insight into the "crush regging" that Fowler was subjected to prior to Ciancio's death and the actions taken by church management following his arrest.