A Commentary on the Brooklyn Greenaway Murder

By: Dr. Barone

Part I of III

This is a very tragic case that has been in the news containing multiple issues and these issues are diverse in that they touch on the humanistic, moral, and legal parts of society.  I would like to make some comments pertaining to the various issues due to the fact that it is not the first time this has occurred. I also intend to provide some insight from a case I myself have investigated as a homicide detective which is similar in nature to the case at hand.

This is a very tragic case and it has a large number of very important issues and learning points that are all combined in one case. We have the issue of the defendant being charged with a certain type of crime; additionally, we have competency issues relating to the defendant being able to assist in her defense with her defense attorney, and we have the issue of the mother of the defendant being looked at by non-attorneys and the victim’s mother wanting her to be charged for some connection to this tragic act. I have investigated cases where there was a hue and cry by the community for charges to be brought against a mother and in another case a friend of the victim and defendants and others who were present during the occurrence which in both cases resulted in the death of an infant and in the second case a young man.

Due to the several issues involved in this case I intend to address this case in parts. I will address the case and the issues in three parts beginning with the competency issue and the competency hearing. The reason I am not addressing the issues regarding the charges first is due to the fact that I have myself in cases changed the charging document a week before trial and this is due to the fact that until you pick and swear in a jury you can still amend the charges as long as speedy has not been demanded and you have not come to the end of the speedy time allotment.

The defendant must be able to understand the charges being brought against them and they must be mentally able to assist their attorney in their representation. This is something that is so important because no matter what the charges are if the defendant is not competent to assist understanding the charges, the process and able to assist their attorney then the case cannot move forward no matter what the charges may or may not be which are being brought by the government.

There was a young toddler who was killed, she is the girl who is in the picture above, and there is also another young girl, who is from Fairfield Maine, whom the Bangor Daily News is not naming because she is a juvenile, and who is currently charged with reckless or criminally negligent manslaughter in the death of the victim, Brooklyn Foss-Greenaway.

The young unidentified girl who has been charge went to court and entered a “no answer” plea, via her attorney, in juvenile court. A no answer plea, in the State of Maine, serves neither as an admission, nor is it a denial, of the charges being brought against the defendant. This type of a plea comes into play when there are questions about the availability of skills associated with the competence, or lack of competence, of the defendant, or person being charges with a crime. In fact, the attorney for the girl in this case took the correct action by making a request to the court for a competency hearing for his client, and the judge in this case also took the correct action by granting the request for the competency hearing.

The competency hearing was ordered to determine if the defendant in this particular case is able to understand what lawyers do, what judges do, what court proceedings are for and what is actually happening around her in the case at hand. No one in the court room working group was surprised by the plea because these individuals knew that this is exactly what was needed to be done to serve justice. They knew this because of the fact that there is an eleven year old girl, who was ten years old at the time the death occurred and without and if she is without the proper understanding and only has the metal capacity of the child then there is no way to determine if she can assist in her defense, understands what it going on around her, and also if she had the mental capacity to understand what she did at the time. All of this goes to critical rights provided under the Bill of Rights of the United States Constitution and state laws.

The hearing to determine if this 11-year-old girl charged with manslaughter in the death of an infant, which occurred on July 8, 2012, is competent to stand trial was completed in Skowhegan District Court on Friday morning March 15, 2013. These hearings are critical to the due process aspect of the criminal justice system in the United States. These hearings usually do not produce an instant decision by the court due to the facts and issues needing to be considered by the court during this important process. This hearing was no different than the majority of these hearings which occur throughout the United States in all types of court room. On this day there was no ruling by the court.

Judges want to make a very informed and deliberate decision when it comes to competency hearing due to the fact that this hearing is being held to determine, in the judge’s opinion, whether or not, in this case, if she understands what lawyers do, what judges do, what court proceedings are and this goes directly to the defendant’s sixth amendment rights under the bill of rights of the United States Constitution. The court can take anywhere from a week to a month to make a ruling on these types of issues; however, the normal turnaround time for the issuing of a decision by the court is usually within a week of the hearing unless there are some complicated issues that surfaced during the hearing. That did not appear to occur in this case.

On Thursday, March 29, 2913, the court published its ruling that the unidentified 11 Year Old Defendant Not Competent to Stand Trial for Manslaughter. In the court’s ruling, the judge did what many other judges across the United States do in these cases and he allowed for the possibility of the defendant becoming competent in the future at which time the court would continue to have jurisdiction and could change its ruling based upon a change in the circumstances of the defendant.

In fact, the judge was very clear in his ruling that he concluded from the information presented during the competency hearing that at this time, the State has not met its burden of demonstrating that the defendant is competent to proceed under the standard established by the Maine Juvenile Code, which is the standard of which competency must be measured and decided by the court. The court was clear in stating that it was at this point in time that he was making this ruling and that the court feels that there subsists a substantial probability that the juvenile will be competent in the foreseeable future.

With this ruling, the court took the next logical and legal step which was to issue an order suspending the proceedings on the juvenile petition and the court then referred the juvenile to the Commissioner of Health and Human Services for evaluation and treatment of the mental health and behavioral needs identified in the State Forensic Service examiner’s report which is again usual for judges conducting and ruling on these matters to do. The judge is going to make their decision as to competency based upon an expert’s examination of the defendant and not just their non-expert perception. It should be noted that levels of competency can increase with age, time, and experiences and that is why the judge has ordered that the State Forensic Service will examine the defendant and then write and send a report to the judge within 60 days for future proceedings.

Under the Police Powers Act, all states have the right to create their own laws and also their own juvenile laws as long as they do not violate the rights bestowed upon juveniles by the United State Supreme Court. In the instant state the Juvenile Code calls for competency hearings done at 60, 180 and 365 days from the judge’s ruling. With this guidance in mind, if by the end of March 2014, the defendant is still not deemed to be competent to stand trial, the ability for the state to prosecute her will be much more difficult. The reason why it becomes more difficult for the state to prosecute is that after the one year mark is due to the fact that in this particular state the standard becomes a clear and convincing standard, which is a step above, the existing standard. The three levels of proof in cases are preponderance of the evidence, (the lowest and easiest), clear and convincing, (which is a little more difficult), and beyond a reasonable doubt (which is the most difficult). Again, this type of a competency hearing has to do with the defendant being able to understanding how the court process works, not if she knows right from wrong.

Part II will address the issue of the charges being brought against the defendant by the State of Maine in this case.    

 

Exploring Arson as a Method to Cover Forensic Evidence: Legal Implications & Scientific Associations

By: Dr. Peter Barone

When reviewing and examining the investigation and subsequent court case against the former law enforcement officer, Mr. Secat, we are presented with something that is not as unusual as it may seem. Due to the great number of police shows on television, specifically those with forensic scientists constantly providing insight into how evidence is created, transferred, and then collected, just about everyone you encounter has come to possess a certain amount, be it accurate or inaccurate, of information as to what forensic scientists can do with evidence from or at a crime scene. Due to this deluge of shows, and the information that is being presented on these programs, real world prosecutors have had to include, as I have had to do myself when picking a jury or consulting on the process associated to picking juries, questions specifically addressing the realistic and unrealistic expectations of potential jurors in regards to forensic evidence and its actual availability in a case. The issue is not just the information and sensitivity as it relates to forensic evidence, but rather it is the inaccurate information that is being presented and then sometimes misinterpreted by viewers of these shows. Many times this mindset will create an unfair playing field for the prosecution in a criminal case and the real issues are not being able to detect whether a juror does harbor this mindset.

The truth of the matter is that in actuality there is not always a transfer of something from a person to an item, and there is not always forensic evidence collected in a case that is going to make the case a slam dunk. The concept of transferring some type of evidence to something is known as Locard's principle. Locard’s principle holds that the perpetrator of a crime will bring something into the crime scene and leave with something from it, and that both can be used as forensic evidence. It should be noted that Dr. Edmond Locard (13 December 1877 – 4 May 1966) was a pioneer in forensic science who was eventually known as the Sherlock Holmes of France. His basic principle of forensic science is that every contact leaves a trace. Locard posited that fragmentary, or what is also known as trace evidence, is any type of material left at, or taken from, a crime scene, or the result of contact between two surfaces, such as shoes and the floor covering or soil, or fibers from where someone sat on an upholstered chair (Chisum & Turvey, 2000). In reality, when there is valuable and undisputable forensic evidence collected and then presented, which points directly to the guilt of the defendant, there is usually no trial and a plea bargain is the result.

 The fear of evidence being left, located, collected and in a condition which is usable in court is a valid fear of criminals, especially someone with law enforcement knowledge and experience. When criminals think of ways to avoid evidence that they may have left behind in a crime scene, they think about fire. The problem with fire is that it is a living breathing item and if it is not provided for it will not grow and work in the manner a criminal wishes and will not accomplish the goal the criminal is trying to achieve. In fact, it can work against them. What fire can and cannot do regarding evidence is something that is really misunderstood by most individuals. This misunderstanding is enhanced when the someone is the person who has committed the criminal act and is going through the mental process of trying to decide if they left trace or transfer evidence and what would be the best method of neutralizing what they may have left behind that would provide an inexplicable nexus of them to the actual crime scene and thus, to the crime.

During the past 38 years of being in the criminal justice field, I have experienced and   read about the use of fire as a mechanism to clean away, or attempt to clean away, the evidence from a crime scene and a body left at a crime scene. I will briefly discuss two cases I have worked on myself and one of those being as a homicide detective and the other as a major crimes felony prosecutor.

While I was a detective, I investigated a case where several subjects entered a home of an acquaintance who was cooking methamphetamine for them and they became involved in heated discussion which lead to one of the subjects to strike the victim so many times and so hard that they killed him right there in his own kitchen. They then decided that they were going to try to cover up the death by starting a fire in the mobile home and burn the body in the fire so the police would not be able to have any evidence to use in the investigation These individuals were not too savvy when it came to chemicals or science and they set fires in three places in the residence and then shut all the doors and windows in the house. Needless to say, without oxygen, the fires they set produced smoke; however, without the air to provide oxygen all the fires extinguished themselves. When I was prosecuting, I prosecuted a case that involved two defendants who set fire to the body of the person they believed they had beaten to death to destroy evidence and in actuality the victim was not dead at the time of the burning. The defendants burned the body and did not realize the victim was still alive. A very good percentage of the victim’s body was not burned. I subsequently presented the case to the grand jury and they were indicted for first degree murder.

What criminals do not think about when attempting to use fire or other items to destroy evidence is that the actual determination of cause of death is not done by the investigator, it is done by the medical examiner or other qualified professional, and even though the actual cause of death may not be readily seen or recognizable at the scene by the detective it will most likely be seen and uncovered by the trained medical examiner during the autopsy or after the autopsy by the forensic chemist when the blood and body fluids are examined by a forensic toxicologist. Studies have shown that more than three-fourths of fire victims die from carbon monoxide poisoning (NFPA 921: 2001 Edition, section 20.5.1), and typically die somewhere other than the room of origin. When fire is used to try to destroy evidence of a crime and make the cause of death look like it was from the fire or an accident they do not thing about the smoke or soot that needs to be in the mouth, throat, and trachea of the deceased. There are also other causes of death by fire that are discernable to an arson investigator and medical examiner. Some of those causes of death are hyperthermia (which happens to be exposure to a hot environment which raises body the temperature to a fatal level, about 109ºF for a few minutes) (Baden, 1999).

I was involved in two recent cases where babies under the age of five years old were left in vehicles in the hot sun and died from hyperthermia. When the autopsies were done and the skull cap is removed it appeared that there had been trauma to the head; however, that is the blood boiling inside the skull with nowhere to go and causing hemorrhaging. Hyperthermia may or may not be accompanied by burns, depending on how hot the ambient temperature was at the time. Other ways that individuals can expire from fire or fire related activities are due to inhalation of hot gases, which can cause strangulation when the epiglottis spasms, and poisoning from toxic gases. There is also the inhalation of soot and smoke (this can act in a number of ways, including blocking airways and causing asphyxiation, or chemical edema, or thermal injuries leading to edema). There is also hypoxia (when breathing in a reduced oxygen atmosphere, which is caused as combustion uses the available oxygen, the body gradually decreases its respiration until unconsciousness results). All of these deaths are accomplished when the person is alive and is killed by the fire or gases or heat created by and as a result of the fire. All of these also have signs that are present and can be detected by the medical examiner or via the laboratory examination by the forensic toxicologist (DeHaan, 1997). 

Based upon all of the aforementioned data, there is a point at which a very important question comes forth and must be addressed. Like all the other cases that have been, and will be in investigated in the future where there is a dead body found in a fire, and is also the issue in the present case in Kansas, that the officials investigating the case are presented with and that is the one central question that must be answered. That question is “whether or not the victim was alive or dead when the fire started.”

Baden (1999), describes how this can be determined, "Whether the decedent was alive or dead when the fire started is ascertained by determining if the decedent was breathing when exposed to the fire environment. If a person is alive and breathing after a fire starts, that person must inhale the products of combustion of the fire, in particular, soot and carbon monoxide. Such evaluation requires that autopsies be done on all burned bodies. Soot in the trachea, bronchi and other air passages, and carbon monoxide in the blood demonstrates that the decedent was alive when the fire started. The inhaled carbon monoxide attaches to iron in the red blood cells, causing the blood to become bright cherry-pink and to turn the normally blue-maroon lividity that develops after death as the blood settles to a cherry-pink. Toxicological studies are necessary to confirm the presence and amount of carbon monoxide." These tests are irrefutable due to the fact that they are hard science and there is no one that can come forth to disprove them with viable explanations or possibilities. When the autopsy is complete, the medical examiner will issue a report and provide diagrams and other documentation (Fire/Arson Instructors Guide, 2000).

In addition, the forensic toxicologist will also provide a report and testify to what they found via their examination and also testify to the scientific methods they used to obtain their results which will meet both the Frye and Daubert standards for admission into evidence in a criminal trial in both state and federal courts. These two standards are commonly referred to as the Frye (1923) and Daubert (1989) standards, currently dominate the question of admissibility of scientific evidence. Both standards potentially guide a trial judge in making the determination of whether or not they should admit scientific evidence.


References:

Baden, M., M.D., (1999). "Handling Injuries and Fatalities." interFIRE VR tutorial.

Chisum, W.J. and Turvey, B. (2000). "Evidence dynamics: Locard's exchange principle and crime reconstruction." Journal of Behavioral Profiling. 1(1). 189.

Daubert v. Merrell Dow Pharm., Inc., 727 F. Supp. 570, 572 (S.D. Cal. 1989).

DeHaan, J. D. (1997).  Kirk's Fire Investigation. 4th Edition. Brady Prentice Hall, Upper Saddle River, NJ.

Fire/Arson Investigation Course Instructor's Guide. 2nd Edition (2000). USFA. FEMA. Unit 9 (Injury and Fatal Fire Investigation).

Frye v.United States, 54 App. D.C. 46, 293 F. 1013 (1923),

NFPA 921 Guide for Fire and Explosion Investigations 2001 Edition. NFPA.

An Examination of the Psychological Associations of Jurors in Capital Punishment Cases: A Brief Examination of the Jody Arias Trial

By: Peter A. Barone

Crimes in the United States are categorized into mala in se and mala prohibita. Mala in se crimes are acts that are considered to be against society that cause a disruption of social control and are seen as being bad no matter what society you are a member of in the world. Mala in se crimes are represented by such criminal acts as murder, rape, and torture. Crimes classified as mala prohibita are actions by members of society that the government has declared to be against the social good and can cause a disruption of social control. Crimes that are considered to be mala prohibita are use of drugs and speeding over a certain speed on a street. All of these actions that fall under these categories are authorized to be deemed criminal acts due to the police powers act which provides state legislatures with authority to make these decisions in the form of laws.

 

Each state can decide what laws they will have in their state and what the penalties will be for each of the criminal acts. Murder is one of the most serious mala in se crimes and as such there are many safeguards provided for the defendant during the criminal process. The pecuniary loss associated with first degree murder cases is the ultimate in that is the loss of one’s life. In a first degree murder trial, where the state is seeking the death penalty, the defendant is entitled to a 12 person jury. If the defendant is convicted they are afforded the opportunity for the jury to decide their fate as far as the death penalty is concerned. There is actually a bifurcation of the process where the first part is the trial and if the defendant is convicted then the second part is where the jury hears evidence and decides as to whether the facts and issues presented via the evidence and testimony warrants the person to be given the death penalty as a sentence.

 

The normal progression for a capital case to take, in this process are in many respects, similar to other cases and even to other murder cases. There is the investigative part of the case which is conducted by a law enforcement agency. Once there is enough evidence for the police to make an arrest they would either arrest on probable cause or they would, and in a good amount of murder cases, apply for an arrest warrant. Once the person is arrested they would usually have a very high bond or no bond set until they go to a first appearance where the judge would determine if there was sufficient probable cause to hold the defendant and then decide if there should be bond. If there is no bond or a very high bond, the defense can motion the court for an Arthur Hearing where they would put on evidence and try to persuade the judge to set a bond. If a very high bond was set, the defense could file a motion for a bond reduction. The judge would take into consideration all of the existing facts presented by law enforcement regarding the type of crime, the manner in which it was committed, and other relevant information pertaining to the defendant.

 

In addition to the first appearance, there would be an arraignment where the person would be officially charged and make a statement as to whether they are pleading not guilty, nolo contendere or guilty. Once the person pleads not guilty the process continues. Sometimes the defense will ask for a preliminary hearing which will again have the judge decide whether probable cause exists to charge the defendant with the crimes alleged in the arrest affidavit. If there is sufficient evidence and the prosecutor assesses the case to have met the elements of the crime they will take the case and present it to a grand jury. I have prosecuted a case where I charged second degree murder and once the toxicology reports came back from the lab, I had enough to change the charges. I took the case to the grand jury and there was a true bill for first degree murder handed down on both defendants in less than 5 minutes. The facts and circumstances did not warrant the death penalty so there was no filing of the intention to seek the death penalty in that particular case.

 

Between the grand jury and the trial there are motions filed, hearings conducted in various issues pertaining to the admission of evidence, depositions taken, and then the vior dire of the potential jurors, is accomplished ending in the selection of 12 jurors to try and decide the case and there can be either one to two alternates that sit through the entire trial until the jury is ready to deliberate. This is done in case something happens to a juror so there is someone to seamlessly step into that jurors place. It is not uncommon to ask the judge to have one or two alternate jurors in cases to ensure that if something happens rather than having mistrial due to not having enough jurors to conduct deliberations, there is an available party on hand. In a death penalty case jurors have to be death qualified which means they are asked questions about their ability to consider both aggravating and mitigating evidence and then be able to render death sentence in a case when it is appropriate. During the sentencing phase the jurors will hear evidence presented by the prosecution as to why the jury should approve the death penalty and from the defense who will present evidence as to why the jury should not impose the death penalty on the defendant. In a non-death penalty case, subsequent to a conviction, the prosecutor and defense attorney would present evidence in the form of testimony and other items that they wish the judge to consider when they are fashioning the sentence for the defendant.

 

There are many aspects that must be considered when examining the second phase of this complex process. In the majority of criminal cases the jurors are told not to consider what sanctions the defendant could be facing and that the sentence should have no effect on their decision making process. In a first degree murder case where the state is seeking the death penalty, the jury is completely involved in this process and this can take a toll on jurors since they are now holding the persons life in their hands. In reality, they hold the defendant’s life in their hands when they are deciding guilty or not guilty in a criminal case; however, they do not have anything to do with the sentencing or penalty phase and usually do not find out the outcome unless they are there for it or read about it in the paper. This intimate involvement with the decision to take someone’s life places a very heavy strain and burden on these jurors during this decision making process.

 

It is not unusual for a jury to be deadlocked and not be able to make a decision regarding the regular part of a trial where they are not even considering the penalty. When a jury is asked to go through the first part of the trial and convict someone on a murder charge and then they are asked to decide a person’s fate, and one of those options is death, a result of a hung jury is not so unusual. Some of the key factors are either mitigating circumstances or aggravating circumstances that would be argued to the jury by both the defense and prosecution during this particular phase. It could be the way in which the defendant killed the victim, if there was torture involved, if they were lying in wait and ambushed them, or if the victim had done horrible things to the defendant and precipitated the attack in some manner. In many states these are outlined in the statutes as applied to the conviction charge received. The jury will hear the things that the attorneys want to present to them. Throughout the case, the prosecution is constantly assessing and evaluating various evidence to determine whether or not the presentation of this evidence to the jury, will assist the jury in being able to decide to impose the death penalty on a defendant. This phase is unique to a death penalty case.  During this phase, and the one the jury in the Arias trial went through, the jurors are presented with evidence, and also recollect back on evidence they heard during the trial, and are charged with making a decision that can result in the death of another human being by the jury recommending the death sentence be imposed on the defendant. In the state of Colorado, the judge cannot sentence Arias to death. This would take a jury to sit through the same penalty phase as the jury that was just released, which could take several months, and if the second jury cannot reach a unanimous decision, the judge would then sentence Arias to one of the life-in-prison options. It is a very long and arduous process and it is meant to be due to what hangs in the balance which is the life of a human being. One thing that is for sure is that this issue is not over and it will be around for a good while longer unless the state modifies the decision entirely, since Arias has been convicted now and a life sentence can be imposed by the trial court judge.