Closing Arguments and the Downfall of a Prosecutor

Freda Back During Peterson Trial

Freda Black during trial of Michael Peterson

If you are a survivor of crime, a fan of legal dramas or have read my former blog discussing closing arguments, you understand that the closing argument can be thought of in many ways. It can be the icing on the cake, the last nail in the coffin, the bow tying it all together,  the crescendo of the symphony,  or it can even contain the rare “gotcha” moment as in the Drew Peterson trial, for example.

The stakes are so very high for the defendant.  As accused murderer, Michael Petersen so aptly put it, no matter which side you’re on, “It’s all about winning, truth is lost.”

You will find attorneys who are very skilled at theater as that’s what the closing argument truly is. The quality of the argument surely is influenced by the evidence, or lack thereof, and the character of the defendant. Other crimes not relevant to the current case are typically not allowed to be part of the scenario.  Even when the evidence of the defendant’s guilt is unquestionable, as was the case in the murderer of my father, prosecutors still engage in character assassination of the victim.

This brings me to the fascinating closing argument of former assistant prosecutor, Freda Black, in the initial Michael Peterson trial. A hearing in November 2011 ruled that Michael Peterson was eligible for a new trial due to the lies and incompetent methods used in many cases by special agent Dwayne Deaver. I remain steadfast in my opinion that Michael Peterson is guilty, but can respect the intense, strategic and intelligent defense provided by David Rudolph.

As for Freda Black, she was an enigma, very complex and just plain bizarre. She reminded me of a real-life caricature of the cartoon character Cruella Deville. To truly capture her unique persona, one would need to view the full 384 minutes or 6.5 hours of The Staircase to truly capture her unique persona.

Her clothes and make up were very intense, her mannerisms, and interactions were out of the 1940s or something, combined with the speech pattern of a “true Southern lady.” And yet, you may know the theory of the case and the motives presented. It was NOT the prefect marriage at all, with the discovery by Kathleen Peterson of gay porn on Michael’s computer and his bi-sexuality with revealing e-mails the night of her killing in which an argument ensued.

Freda Black

Freda Black

Despite Freda Black’s uniqueness, the doubt about the true murder weapon and the other women killed from a fall down the stairs, Freda delivered her portion of the closing argument flawlessly, as only she could do, with Jim Hardin adding a little icing at the end.

It’s a bigger impact to see the closing arguments of Freda Black and Jim Hardin, and I encourage you to find a copy of The Staircase to be able to experience all the nuances she brings to the case.

From my personal copy I’ve transcribed the complete closing arguments so readers have the opportunity to know what she said, and how she said it.

Freda Black & Jim Hardin’s Closing Arguments (PDF)

 

NOT included in her closing argument was the infamous Owl Theory put forth by attorney Larry Pollard. In an interview from August 20, 2008 Freda Black discounts the the Owl Theory, explaining why she feels it’s not a legitimate theory.

The Next Chapters –

Freda Black, the sometimes villainous assistant prosecutor and southern lady extraordinaire, had a legal career spanning from 1991 to at least 2008 according to internet sources. Perhaps it is customary to be dismissed when you run for elective office against the head prosecutor, I don’t know.

Durham County Rocked by Scandal and Corruption- 

As reported in the Washington Post in March 2014, Michael Nifong was the assistant district attorney for Durham County. He would later be appointed, and then elected to district attorney. He was Freda’s boss.  He make national headlines in 2006 when he falsely charged three Duke University lacrosse players with sexually assaulting a stripper. In 2007 Nifong was disbarred for his handling of evidence in that case. He was also found in contempt for making false statements about the case in court and faced potential civil suits.

In 2010, a report from the North Carolina Attorney General’s office as a follow up to a prior local newspaper investigation, uncovered widespread corruption and malfeasance in the state’s crime lab. This included the infamous special agent Dwayne Deaver (associated with the Michael Peterson trial and many others.)   Fallout from that scandal contributed to the removal of Nifong’s successor, District Attorney Tracey Cline, in 2012. (Prosecutors are rarely ever removed from office for misconduct.)

Freda Black ran for the top prosecutor’s office in 2006 and 2008, but unfortunately lost both times.

In 2010, Freda Black and Kerry Sutton were among those who sought Judge Anne McKown’s 14th District Court seat in Durham, according to the State Board of Elections.   Doretta Walker wins the seat.

And Then Something Happened to this Legal Servant-

Let’s be clear. I would not be the fan club president for Ms. Black. However, it appears she was just doing her job to the best of her ability, coming out of a trail with more permutations and layers than one could imagine that continues today.  She ran for other offices and appeared to have support in a community tainted by scandal.

 

Freda Black

Freda Black

 

As reported:

One of the key figures in the Mike Peterson murder trial is now facing her own legal challenges.

Former Assistant District Attorney Freda Black is due in Durham County Court on Dec. 10 on drunken driving charges.

A former Durham County Assistant District Attorney was arrested Tuesday night in Orange County after police allege she was driving while impaired.

Freda Black, once a high-profile prosecutor in Durham, was arrested about 5:26 p.m. on the 200 block of East Corbin Street in Hillsborough, according to her arrest report.

This isn’t the first time Black has been accused of driving while impaired. In October 2012 she faced the same charge in Durham County. Black is due to appear in Orange County Court on Feb. 5. She was released from custody under a written promise to appear, according to arrest records.

It is unclear if Black is practicing law, but she is still an active member of the North Carolina State Bar.

According to Orange County Sheriff’s office arrest document Black’s current employer is Durham Cleaners. As Jim Hardin stated at the Peterson trial, “This picture speaks a thousand words”

Commentary 

Judge Jim Hardin

Judge Jim Hardin

I don’t disparage anyone working at a dry cleaning business if that’s all they can do, or if they really love it.  All of us age and frequently gain weight. All of us have problems and many turn to drugs or alcohol to numb the pain. I just wonder if the Michael Peterson trail and all of the Durham scandals, or simply a lonely life contributed to Ms. Black’s current situation. We may never know. It is very tragic when the full extent of the impact and the toll on lives is measured. I prefer to think of her when she was at her best closing argument ever!

PS. Jim Hardin has been on the bench as a practicing judge at least since 2011.

 

 

Additional References –

http://www.washingtonpost.com/news/the-watch/wp/2014/03/20/darryl-howard-and-the-rampaging-prosecutor-durham-learns-little-from-duke-lacrosse-debacle

http://www.heraldsun.com/news/showcase/x1351410967/Former-Durham-prosecutor-Freda-Black-charged-with-DWI

http://abc11.com/archive/8845874/

Miracles Sent by the Grace of God and With Faith in the Almighty

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“I lived with hate…but picked up love and never looked back” James Calvin Tillman

“I apologize on behalf of the State of Connecticut. I thank you for your grace and dignity in dealing with this injustice and I wish you well in the next chapters of your life,” M. Jodi Rell, Former Governor, State of Connecticut  (February 8, 2007) 

Governor Rell cited James Tillman as a vital example concerning the need for the State of Connecticut to do more to reduce (the former) backlog of DNA testing at the state forensic laboratory. It was through that testing that Mr. Tillman was exonerated in 2006, after serving 18 years of a 45-year sentence for rape and beating that he didn’t commit.

James Tillman and Donna Gore

James Tillman and Donna Gore

Who among us is perfect? Who does not have some baggage, at times, well hidden, but still there? Should we arrive at the pearly gates ready to meet our Maker, what will be the earthly circumstances that rise above all else to confirm our admission, as we cross over to eternal peace and beauty? 

Mortal men, especially men of color, growing up in urban communities seldom contemplate the power and experience of “giving it over to God” often in favor of “street survival.”

However, few could ever imagine that a mere mortal would be sentenced to a 45 year prison term, for a violent crime not committed by the accused. Yet this same man would stand up in principle and decline a plea bargain in exchange for the offer of a much lighter sentence if only he would plead guilty. Why?  For the stain and reputation as a rapist is indelible. 

The true saga of James Tillman of Connecticut includes a vigilant village of supporters -community leaders, the Connecticut Innocence Project,  other non-profits, legislators, friends and family who never lost faith for 18 years. As fate would have it, James would join forces with a talented and committed author and former Presidential speech writer,  Jeff Kimball, who was experiencing incredible personal losses as well. It was in this storytelling potential, this fusion of thoughts, hearts, faith and forgiveness that James was set free from the bonds of hatred, hopelessness , lack of inspiration and freedom from the iron clad prison bars that felt like a lifetime! 

As a prelude to reading James’ book, “The Power of Conviction”, a spellbound audience at the Mark Twain  House and Museum Nook Farm Author Talk in Hartford on Monday evening, June 8, 2015. We learned the facts and the core values of this transformed man… with a power to inspire positive change in others though his experience.  

Some fascinating facts you will learn about James’ journey via his book and media resources include:  

Mother of James Tillman and Donna Gore

Mother of James Tillman and Donna Gore

  • James was the first person in Connecticut to be exonerated by DNA evidence;
  • Earn of his brother’s passing while he was incarcerated and contemplating suicide;
  • Learn about how he changes hatred to love;
  • As with other high profile cases, learn about the fact that the “eyewitness” identified the wrong person as the perpetrator and “sealed his fate.”
  • Learn about receiving a bad defense with bad forensic evidence;
  • James release from prison occurred on 6-06-2006;
  • James recently  graduated from Goodwin College on 6-06-2015 AND gave the commencement address;
  • How much compensation is 18 years worth?
  • Learn of a mother’s point of view …waiting 18 years for justice; 
  • Broadcast on Connecticut Network : James’ Tillman’s Story (58 min) 

References: http://articles.courant.com/2007-02-08/news/0702080881_1_rell-governor-s-offer-public-def

Shattered Lives Radio talks with James Tillman and author of Power of Conviction, Jeff Kimball. Listen to the podcast to learn even more details about the impact of wrongful conviction and exoneration.

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The Back Stories of Victim Impact

 

Every crime victim has at least one “back story.” They are the stories that the media doesn’t report, doesn’t know, doesn’t care about, particularly in the manner of humanizing the victim and not focusing solely on the perpetrator.  Back stories contain the victimology, the inspirational moments, the turning points in life.

For assistance in creating a personalized victim impact statement, I offer my services nationally for those who feel they aren’t in a position to objectively present their innermost feelings to the court. Refer to Victim Impact Statement Assistance

Two examples of victim impact “back stories” from different perspectives

The brutal rape of Anne Heck from Asheville, North Carolina as told in 2004:

Anne Heck

Anne Heck

There was the initial impact of his fist hitting my face, the impact of him throwing my bike into the bushes, the impact of his body forcing itself into mine. Then there were the blazing sirens that delivered me to the hospital, my body becoming the source of evidence, my swollen face in the mirror, and the pain in friends’ faces. But there was something much deeper. Now, 14 years later, I was faced with the task of communicating this impact; it was not easily put into words.”

The Day of the Rape:  I was raped in July 1990. It was a beautiful summer day and I was enjoying a road trip on my bicycle exploring back roads. I loved the freedom I felt on two wheels with the sun on my back. What a stark contrast this incident was to my intention for that day.

 Growth  “The day I was raped, I learned about friendship and kindness ….when a stranger picked me up along that dusty road and took me crumpled and terror-stricken to the closest paramedic unit. A rather new acquaintance made calls to dentists for me. I had two teeth that were knocked out-of-place and a kind doctor agreed to stay late to help me. Unfortunately, the teeth were irreparable, the roots damaged. I would eventually have to have root canals and other reparative work done to them.” 

“I learned about letting go… as I had my favorite blue biking shorts and shirt, stained with blood, bagged by police and taken away for evidence.”

“I grew into new ways of viewing my freedom…. as I had my trusty touring bike covered in black fingerprint dust returned to my apartment. It sat untouched for weeks.”

“I remember with disgust… the volunteer at the hospital who came into my room to read scripture and tell me I could be forgiven for my sins. I experienced what it felt like to be shunned at the health center when I went in for a pregnancy test and shared that I had been raped.”

The feelings Anne described included fuzziness, deep fear, hypersensitivity to noise, inability to tolerate crowds, or strangers, the fact that “the emotions were trapped in her body” when trying to glean the benefit from counseling.” She drew a picture of her attacker in an attempt to purge herself of the fear.

Surprisingly, Anne learned patience whether it be with counseling or the results of her HIV test.  She also stated, While I do not condone (perpetrator) Mr. McDonald’s act and feel he should receive his just sentence,…“I have come to accept this as a chapter of my life that has provided me with the potential for my personal healing and development.” 

Moving Beyond:  The year after her rape and much counseling, Anne left her Virginia home to find a support system and a peaceful place in which to heal, she began training as a rape crisis counselor and speaker.  Self defense classes came next and initiating assertiveness training, shedding her former teaching job.   The horrific attack began to fade into the background of her life, HOWEVER, there was an ever-present severe pain in her hips and pelvis. How to relieve the pain and inability to walk, to capture complete healing, if possible?

Enter the detective in her case with news. She and her two young children were ready to “put this chapter away”. In fact, in her words she says, “I believe I’m blessed to have the opportunity to experience this part of my healing process. This event is for me a symbolic statement of hope fulfilled and justice served and most importantly, it demonstrates the power of choosing my own strength.”

The Aftermath:  On August 23, 2004, Terry L. McDonald, (who was serving a 48-year sentence for sexual assault in West Virginia,) pleaded guilty in Prince William County, Virginia Circuit Court to rape and abduction with intent to defile. The Judge in this case was asked to give McDonald the maximum punishment—two life terms in prison—at his October 29 sentencing.

Full Circle: When she returned to Virginia for the sentencing. She also took her bike and declared her freedom on those dusty backroads!

For more information about Anne Heck refer to her website.

A Father’s and a Husband’s  Story from Australia- Victim Impact Statement May 19, 2013

Jill Meagher

Jill Meagher

September 28, 2012  Jill Meager was an ABC radio broadcaster in Melbourne, Australia and was remembered by her peers as “an important member of our local radio team, a vibrant organizing presence at 774 Melbourne, a key liaison for our local radio stations across Victoria and a valued partner in the administrative team supporting local radio around the country, as a widely known, universally respected and much-loved, with a great career ahead of her.”

The body of the Irish-born 29-year-old was abducted and her body was found a week later in a field, northwest of Melbourne. Adrian Ernest Bayley, 41 was charged with her rape and murder. Jill walked along a road at 1:40 am where this perpetrator wearing a blue hoodie called to her.

George McKeon, 55, Father of Jill Meagher speaks for him and his wife:

  • A father has a stroke, with inspiration from a daughter to live to “have future grandchildren to run around with;”
  • A mother’s words recounting childhood memories,
  • Lamenting what could have been and “life stopping” as they know it;
  • Jill’s personality – funny, intelligent with huge empathy;
  • As described by Jill’s mother ,Edith (Who was ill and could not attend to deliver her victim impact statement)  “A couple’s relationship changes after 30 years of marriage – Dealing with the loss in different ways –The emotional harm is devastating, We are inconsolable. The links of the four of us have been shattered…
  • The Aftermath -Emotions felt – Catastrophic, sad, lonely, with anxiety,  panic attacks and insomnia
  • Rebuilding a new life is very sad… as a mother, “I have been given a life sentence.”

Thomas Meagher Jill’s Husband:

  • First Encounter – “awkward” followed by an 11 year adventure
  • Jill embodied everything I could ask … her thirst for life … Sher pulled me through difficult times and “pulled me up even higher in good times.”
  • All things stolen from me…  love, my best friend, our future
  • My world view of good has been shaken to the core…
  • I hesitate to leave my apartment. I have nightmare. I have been forced to move
  • I am constantly confused, disoriented and unfocused
  • The intrusion of the police investigation – . Quite simply, my life will never be the same again.”
  • I miss waking up on Sunday and having breakfast at 2 pm.
  • I think of the waste of a brilliant mind and the beautiful soul at the hands of a grotesque and soulless human being.’ I am half a person because of this crime.”

Sentencing: Adrian Bayley was sentenced to life in prison, with a 35-year non-parole period, for the rape and murder of Jill Meagher. Judge Geoffrey Nettle said that he subjected Meagher to a “savage and degrading” assault and that his multiple previous attacks on women demanded that he be sent to prison for a lengthy period.

Conclusion:  Whether you are “An ordinary person out for nature’s adventures on your bike,”or whether you are a talented radio broadcaster, it matters not. Pain and loss is the same. How we cope and “face the world for a new day” is the most tie that binds all humanity.

Additional References: http://www.theaustralian.com.au/news/nation/abc-employee-jill-meaghers-family-devastated-by-her-death/story-e6frg6nf-1226483095816

http://www.huffingtonpost.co.uk/2012/09/28/jill-meagher-dead-adrian-bayley-arrested-abc_n_1921987.html

http://www.theguardian.com/world/2013/jun/19/adrian-bayley-jailed-jill-meagher

No Body Homicide Cases: How to Prove the Victim is Dead 

 

No Body Homicide Cases by Tad DiBiase

No Body Homicide Cases by Tad DiBiase

According to Tad DiBiase, prosecutor and author of No Body Homicide Cases: A Practical Guide to Investigating, Prosecuting, and Winning Cases When the Victim is Missing, there are only two ways to prove that a “no body victim” is truly dead. (Page 19)

One way is via physical evidence. Tad offers the example of a crime scene revealing massive amounts of blood loss such that life could never be sustained.

But I ask, what else could we add? Perhaps- A car found submerged in deep water and mud  without evidence of escape; Perhaps- Personal items or clothing remnants located at the top of a mountain; Perhaps– A body gone missing overboard on a cruise ship.

The second way to prove death in a no body case is the lack of evidence of life. What does this mean?  No use of cell phones, social media, no use of bank accounts or credit cards, no known contact with family or friends. The absence of life can spell death (I’ll add the exception when the deceased “takes on another identity” unbeknownst to others.) Tad states, the more evidence of “lack of life” you can amass over time, the better it is to convince a jury. This also includes circumstantial evidence that major life events and appointments were missed and out of character for the victim.   “Mom never would have missed the birth of a grandchild.” “Dad would not have missed his annual fishing trip with the guys.”  “Grandma always attended every graduation in the family etc. “

Which circumstance above is easier to prove? I would guess that it depends upon the many variables in each individual case, the amount of time that has passed and what is revealed in each crime scene.  Certainly, you may have more to work with concerning an active, social engaging person versus one who led a very sedentary life style. A person that has a very set routine and few visitors may be more challenging once all of the usual leads have been tapped.  Victimology becomes very important- Defined by some as the study of victimization, including the relationships between victims and offenders, the interactions between victims and the criminal justice system.

Cases That Prove Death Without a Body – 

George Smith

The Mystery of honeymooner George Smith from Greenwich, CT who disappeared on his honeymoon Cruise Ship in 2005. There remains many unanswered questions o this day. A wealthy family can “shake up the system”, spearhead legislation, demand accountability in the international cruise industry, can hire Dr. Henry C. Lee as an investigator. They can suspect that their former daughter in law might be complicit, BUT, all this cannot bring George back.

It appears he could not have survived if thrown overboard as suspected.

A local account can be read at Greenwich Magazine.

Jon Francis

Jon Francis, “invincible solo mountain climber”of Stillwater, Minnesota,was one of those 20 something guys “who thought he could tackle the world.

From the Jon Francis Foundation:

“On Saturday morning, July 15, 2006, 24-year old Jon Francis, of Stillwater, Minnesota, climbed The Grand Mogul in the rugged Sawtooth Mountains in Idaho. He reached the summit but did not return. The official search, led by local law enforcement authorities, lasted for only 2 days and was unsuccessful in finding him.”

Again, as Tad postulated, because of the nature of Jon’s activity, we assume he is dead by virtue of not being able to survive a serious fall or rock slide.

For a more detailed account of his story, and a former Cue Center for the Missing Conference Presenter,  Jon’s Father David Francis appeared in this moving blog-podcast showcase from July, 2012: “It’s Not What We Gather, but What We Scatter That Defines the Kind of Life You Have Lived.” (The Legacy of Jon Francis)

To learn about this tragic loss of life and the aftermath as told on “Shattered Lives”, please CLICK HERE

 

Absence diminishes mediocre passions and increases great ones, as the wind extinguishes candles and fans fires.”  Francois de La Rochefoucauld