RAPE VICTIM'S FRIEND WRONGLY MAKES THE INCIDENT AN ISSUE OF RACE

Police officer outside of Richmond HighA Richmond, California high school girl was to be picked up by her dad outside of the Homecoming dance; instead, she and a friend behind the school property to drink. Little did she know, a group of barbarians were lurking in a nearby dimly-lit parking lot, about to commit the most heinous act against her: a 10-person gang rape over the course of 2 1/2 hours.

There is no dispute that the rapists - if convicted - must serve the ultimate time behind bars. One friend said to me, "This is where lethal injection comes in handy...anyone who would ruin an innocent girl's life in this manner, deserves nothing less than the ultimate penalty." Another friend suggested castration of these disgusting rapists. Clearly the punishment of a violent rapist invokes the most extreme emotions of those who have morals.

But, there is more to discuss here than just, "Off with their heads, but cut their balls off first!" It is time to expand our discussion - let's talk about WHY people are committing crimes; let's talk about how we stop the violence - whether it's rape or murder - against the most innocent of our society: our children.

I am sick and tired of having the same old discussion about punishment. Our society is all about punish, punish, punish. We must realize that the majority of prisoners are eventually released, back into the streets and the back alleys of our schools. Punishing the worst scum of our society is a given.

FRIEND OF VICTIM WRONGLY PULLED RACE CARD - CRIME AGAINST CHILDREN IS COLOR-BLIND

At the end of the day, there is no difference between the young black student at Fenger High School in Chicago, who was beaten to a bloody pulp while dozens of people watched and did nothing, the black college student, whose funeral I attended, who died instantly after a bullet ripped through her car, and the young (apparently white) Richmond High student who was gang-raped by at least ten men while at least ten more looked on.

Last night, the girl's friend, Kami Baker, a white student, spoke to school officials about the school's failure to provide adequate security. She even said the high school's vice-principal recognized a group of 12-15 men lingering around the school without proper ID and yet the official did nothing about at.

She goes on to say, "Here at this school, me and my sister are the minorities; when in reality, the minorities are what is around me." She then goes back to discuss school security, that she felt extremely unsafe when she started at Richmond High. Then she says, "RHS has been ostracized by the district because of our race and minorities; there are Mexicans and blacks around me every where and at De Anza (High School) there are more Asians and whites and when you said 'Ivy League Connections' earlier, you only included the Asian names...I am white and I am an Ivy League Connection and for you to disclude all the minorities at this school is wrong."

Ms. Baker, a child herself, clearly shared her feelings about race with the school. Just because she is feels she is a minority at the school, even though she is white, that does not mean she should have more protection from the blacks and Mexicans than anyone else. That does not mean she is more of a target than a black person, just because she is white. Blair Holt, a Chicago student athlete and honor-roll student, was shot to death in Chicago two years ago. His life is just as important as any other victim of violence, regardless of race.

America must stop looking at the victim's race. We must begin to look at the perpetrators - whether they are white, black, Asian or Hispanic - and determine HOW we are going to stop the violence against our children.  How do we educate? How do we provide care to kids who do not get love and attention at home? How do we teach our children that reporting a crime is a good thing and that you are not a "snitch" if you help bring a person to justice? How do we keep our kids from getting assault weapons? How do we start from the bottom up? Blaming the parents is the wrong response. Teaching the kids is the right response.

Focus on fixing the problem, not on finding someone to blame.

Video of High School Student's speech:

http://www.cnn.com/2009/CRIME/10/29/california.rape.victim.friend/index.html

www.xpunged.com

NEW TEXAS DNA LAW ALLOWS FOR ARREST IN 19-YEAR OLD UNSOLVED RAPE CASE, STATUTE OF LIMITATIONS WILL PREVENT MOST ARRESTS

In 1990, Jennifer Schuett was snatched from her bed, raped in a field and left for dead when she was just 8 years old. Her injuries were so severe, doctors told her she would never be able to talk again. CNN article here.

Doctors performed a rape kit after the assault but technology did not allow for a conclusive result.

In 1997, her attacker, Dennis Earl Bradford, was sent to prison for a similar offense. At the time, DNA testing technology was more advanced and his DNA was entered into a database following his felony conviction. (Many states have a similar law: upon conviction of a felony, the defendant shall enter his DNA into a database.)

Last month, on September 1, a new TX law allowed for DNA preserved in old cases to be entered into a database. Blog here: New Texas Law: Old DNA on Cases NOT Prosecuted Can Be Used Against Person

Now, just a month over the passing of the new law, old DNA that was preserved in an unsolved rape can be entered into a database to search for someone who had subsequently been entered into the system, most likely for another conviction. Clearly, this law is working in the way it was intended: to finally bring sexual assault victims justice.

Unfortunately, many people will not be able to seek proper justice because sexual assault cases have a statute of limitations, meaning prosecutors must charge and prosecute a case within a certain number of years. I am assuming that Mr. Bradford's arrest was possible because he is also charged with attempted murder.

www.xpunged.com and www.tamaraholder.com

New Texas Law: Old DNA on Cases NOT Prosecuted Can Be Used Against Person

On Tuesday, a new Texas law brings "due process" into a new debate: DNA that was collected from sex crimes that were never prosecuted will be placed into a database that is accessible to law enforcement, parole boards and prosecutors. Wall Street Journal article here.

At first glance, this makes sense but there are no boundaries.  This isn't about getting sex offenders off of the streets. Old DNA can be used by law enforcement and prosecutors for any reason whatsoever to build a case against a suspect on any kind of case - not just sex cases.

Let's say John Doe's DNA was found on a woman in 1988 that now matches John Doe. (At the time, the samples were preserved but not tested until after the statute of limitations on prosecution had passed.) Now, over 20 years later, John is arrested for a non-violent crime, possession of a controlled substance. Immediately upon arrest, law enforcement has access to his DNA "match" on a 20 year old case. And let's say there have been a few unsolved rapes in the area with no positive ID on the rape kits. But let's say John Doe is a 5'10" black man with braids and dark skin. And the suspect in the recent cases also matches that description.

Rest assured, John Doe will be charged with the recent rapes.  The police and prosecutors can and will use the old DNA information as a reason to charge John. The prosecutor will tell the bond court judge in aggravation that John's DNA matched the DNA of a victim from 20 years ago. And how about at trial? Will the judge allow the prosecutors to tell the jury about the 20 year old case even though John was never charged?

I am all for getting sexual predators off of the streets. I don't want a rapist who wasn't caught to jump me in Lincoln Park! But, this new law is against the interest of justice. DNA is just one link to a puzzle. It is not the end-all-be-all. Just because a man's DNA is found on a woman reporting a rape, that does not mean he raped her.  Maybe it was consensual but she got mad at him and reported him to the police? Maybe he had consensual sex with her and then she was raped by another man? Whatever the reason, every person is entitled to their day in court. 

I recently had a client who was accused of sexual assault. The alleged victim was a girl who said my client raped her.  His blood was found on her bedroom window. His DNA was on her sheets. Looks like a slam-dunk case for the prosecution, right? Wrong. He had apparently been having sex with the girl for months. One night, when her father came home, he jumped out the window. Several months later, her father found out about their relationship and so she made the rape allegation to protect herself. 

This law has the opportunity to grow legs. Does that mean fingerprints found at a murder scene can soon be entered into a database? This database can easily expand beyond DNA in old rape cases. 

And what about our privacy rights? Now, a person's DNA will be in a database without their knowledge or ability to challenge its validity. In Illinois, the state cannot obtain one's DNA unless he/she has been convicted of a felony offense.

DNA does not mean "Do Not Argue (because you are guilty)." Every person is entitled to confront their accuser. Ever person is entitled to due process. This law takes away those rights. 

www.xpunged.com and www.tamaraholder.com

IF MELISSA HUCKABY IS INSANE, THEN PIGS FLY! She Will Never Be Able to Successfully Argue the Insanity Defense.

(AP Photo/San Joaquin County SheriffOn March 27, a precious little girl, Sandra Cantu, disappeared in broad daylight from outside of her home.  Surely, it was a male sex-predator who had taken her, right? Wrong. The suspect: a female Sunday school teacher and neighbor to the Cantu family, whose daughter was friends with Sandra. And it wasn't until April 6, 10 days after Sandra's disappearance, that Sandra was found. Her little body was stuffed in a suitcase and tossed into an irrigation pond.

Melissa Huckaby is now charged with not only murder, but rape. Rarely, is a female ever charged with raping another girl and killing her. I cannot think of one case! Lately, there have been stories of adult females raping juvenile males (Mary Kay Letourneau) but those cases are not comparable in any way, shape or form.

So that means if this kind of heinous crime is so rare, then Huckaby must have been insane, right? Wrong. Even though I am a defense attorney, I do not believe Huckaby suffers a mental defect that will pass the "insanity" defense muster.

STATISTICS

Unfortunately, many people whose mental illnesses go untreated end up in the criminal justice system; however, they are not "insane" just because they committed a crime while suffering from a mental illness. According to a Department of Justice press release in 2006, more than half of all prison and jail inmates were found to have a mental health problem. 54% of jail inmates had symptoms of mania, 30% had major depression and 24% had a psychotic disorder such as delusions or hallucinations. Females had higher rates of mental health problems than male inmates: 73% of females versus 55% of males in state prisons & jails.

An insanity defense obviously did not work for the mentally ill inmates; otherwise, they would not be inmates.  A successful insanity defense rules the person "not guilty by reason of insanity." The person is not incarcerated but is usually placed in a mental hospital until the person is found to be rehabilitated.

Insanity Defense Recently Successful with TWO Mothers Who Killed Their Children

*** Statistically, the insanity defense is only used in about 1% of cases and of those 1% of cases, the defense is only about 20% successful. ***

Andrea Yates mugshot - 2000

Even though the insanity defense is rarely successful, two people who recently successfully asserted the defense were Andrea Yates and Dena Scholosser: both of these women were mothers who killed their children. Huckaby, on the other hand, is accused of killing another's child.

Ms. Yates drowned her 5 children in the bathtub, was found guilty and then on appeal was found not guilty by reason of insanity in 2006. In 2004, Ms. Scholosser chopped off the arms of her infant child who later died in the hospital. She was found not guilty by reason of insanity. As recently as November 2008, it was disclosed Ms. Scholosser will soon be released to out-patient care.

Dena Scholosser mugshot - 2004

Understanding the Insanity Defense

California uses the M'Naghten Rule: To establish a defense on the ground of insanity, Huckaby must prove:
1) at the time of the committing of the act,
2) Huckaby was laboring under such a defect of reason,
3) from disease of the mind, as not to know the nature and quality of the act she was doing; or,
4) if she did know it, that she did not know she was doing what was wrong.

Basically, insanity can be proved 1 of 2 ways in CA: Huckaby was so mentally sick that: 1) she didn't know that what she was doing was wrong, OR 1) she did not understand the consequences of the act.

Insanity Defense Applicable for Melissa Huckaby Is Doubtful

In the Yates/Scholosser cases there was no question both mothers committed the murders. Ms. Scholosser was found in her house, covered in blood, with a knife in her hand. And Ms. Yates immediately confessed to the drownings. In this case, we don't know enough details about Huckaby; however, we do know that she was not immediately arrested with "blood on her hands." and we do not have information that she confessed to Sandra's murder. In order for Huckaby to argue the insanity defense, she must confess to the crime. Basically, "I did it but I was insane."

Melissa Huckaby did exhibit certain behaviors that may lead one to question her mental health but the behaviors do not rise to the level of insanity.

1) Melissa's bouts of depression: Melissa's ex-husband tells Good Morning America, "She did suffer from depression. She did have issues with ... her self-persona, who she saw herself as." Article here.  Does Huckaby have a documented history of depression?  A family member's "diagnosis" of one's depression is not enough to rise to the level of insanity.  There are plenty of bad people in the world who do terrible things.  These people cannot use "bouts of depression" and sufficient evidence of insanity. 

2) Recent theft conviction: one case of theft is not enough to allege insanity in a separate, unrelated crime.  Furthermore, the theft is not a violent offense and Huckaby has no pattern of committing crimes.  In my opinion, the theft charge has no weight in an insanity defense.

3) Knife-swallowing suicide attempt: This incident is the best evidence for the prosecution that Huckaby was not insane at the time of Sandra's murder.  Huckaby's suicide attempt shows a women who tried to take her own life in fear that she would be caught.  This shows her ability to understand the nature of the act she committed, its severity and its consequences. Huckaby probabaly thought, "What did I just do?  If I take my own life, I don't have to be held accountable for murder and rape."

4) Separation in time between kidnapping, murder and disposal of body: The numerous criminal acts that occurred do not show a woman who was insane.  For example, in the abovementioned cases, the mothers engaged in a single act of insanity.  Huckaby, on the other hand, had an opportunity to plot.  She had time.  She thought about the perfect opportunity to take Sandra, she then kidnapped her and held her.  She had the opportunity to release her but instead she allegedly engaged in the rape of her.  Then, she allegedly committed another act of murdering her.  Then, she was able to plan how to dispose of the body.  She methodically placed little Sandra in a suitcase and drove her to an irrigation ditch.  These separate acts took separate thought processes.  Huckaby was not insane during this entire sequence of events.

If Huckaby is the murderer of Sandra, then, in my opinion, she is a cold, calculated killer.  She is not insane.  She may be sick, evil and demented but she knew what she was doing.  She planned the attack and engaged in a pattern of criminal behavior that possibly occured over the course of several days.  Her final steps show a woman who knew that what she did was wrong.  She disposed of the body and she attempted to take her own life.  Those are the behaviors of people who are not insane but who do not want to be held accountable for their actions.

From the information provided thus far, the insanity defense will never be successful in this case. Her best (for lack of a better word) defense will be, "It wasn't me."

I previously discussed the insanity defense in the Casey Anthony case on December 15, 2008. Blog here.

www.tamaraholder.com & www.xpunged.com