Mike at Crime & Federalism posts about the 8th Circuit’s decision in White v. McKinley , calling it the “must-read” case of the year. He’s absolutely right. First:
In White v. McKinley, a wife falsely accused her husband of child molestation. The cop she was dating withheld evidence exonerating the husband. At least two prosecutors (Jennifer Mettler and Jill Kanatzar) knew that the cop was having sex with the wife, but didn’t disclose this information to the defense.
Not bad enough? Then:
White was tried three times in Missouri state courts for the alleged molestation of Jami. At his first trial, the jury convicted White of 12 counts of sexual molestation.
“White learned after the verdict that Tina White and the chief investigator of the alleged crime [McKinley] had been engaged in a romantic relationship. White also learned that the prosecution knew about the relationship for approximately one year but failed to disclose the information to the defense.” State v.White, 81 S.W.3d 561, 566 (Mo. Ct. App. 2002).
What happened in trial number 2?
White’s second trial resulted in a hung jury—11 jurors in favor of acquittal and one in favor of conviction.
So like good little prosecutors (with full knowledge that their cop was schtupping the defendant’s wife/accuser), they tried him a third time. After all, what’s an 11 to 1 for acquittal mean? He could still be guilty, right?
But the part that I chose to focus on, notwithstanding the variety of outrages to choose from, is that White’s acquittal after trial number 3 meant that he finally was released from custody after 5 years. Five Years! Tom White spent five years in jail, through three trials, until he was finally acquitted.
Of the many decisions made by a judge during the course of a criminal prosecution, few are more arbitrary and capricious than the setting of bail. While the 8th Amendment prohibits “excessive bail,” there’s no meaningful definition. It’s just one person’s notion of what it should be, whether it’s because the judge knows that the poor man can’t make $100 or the wealthy man can make $1 million. If the judge wants a person to stay in, chances are very good that he will. If the judge wants to cover his butt, lest a defendant be released on bail and do something to embarrass the judge for being “too lenient,” that becomes the basis for making sure that bail is set at a number that gives the appearance of reasonableness while being just beyond the defendant’s reach.
There is one purpose, and one purpose only, for bail. It is to assure that the defendant returns to court as directed and adheres to the conditions of his release. It is not punishment. It is not to protect society from the evil criminal. It is not to vindicate the judge’s sense of “justice” or protect the judge from getting her mug on the front page of the New York Post. At least it’s not supposed to be.
Lacking any basis to infer why the judge in White’s case would keep him in pending his third trial, particularly given the 11 to 1 to acquit after his second and the lying prosecutors after his first, it’s impossible to know whether this was a decision of malevolence or mere stupidity. Either way, White lost five years of his life to this sham. He will never get it back. Did anybody really think that Tom White was going to flee the country and avoid prosecution?
Is there any bar association president out there who wants to spout some platitude about how this is the best system there is? I know you inspire me whenever I receive a dues notice. Maybe your platitudes will bring Tom White some comfort, and make him forget about the five years of his life lost to his big win.
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I don’t suppose any sanctions were imposed on the twinkies?
As Mike points out, it’s shocking (in a positive way) that they were even named.
“Did anybody really think that Tom White was going to flee the country and avoid prosecution?”
From the opinion: “At his first trial, the jury convicted White of 12 counts of sexual molestation. Before his sentencing, White fled to Costa Rica where he was apprehended and eventually returned to Missouri.”
Granted, the circumstances were different after the withheld evidence came out and after the 11-1 vote for acquittal, but it sounds like the flight risk was a lot more real than your post lets on.
Did anybody really think that Tom White was going to flee the country and avoid prosecution?
Anybody? I dunno. Maybe me, (he admitted, embarrassingly). After his first conviction, White did flee to Costa Rica, was apprehended and returned to Missouri, after which he went to prison, as a convicted sex offender*, and then went back to trial only to have a hung jury, and a promise of yet a third trial.
I don’t think it would be horribly surprising if, rather than hang around to see how that one would turn out, a guy who had been successfully framed once for a crime that he was factually not guilty of by reason of having done no such thing would have headed for some country that wouldn’t extradict him.
___________
* Yucko.
In 2008 the Supreme Court of Missouri appointed Jill Kanatzar to serve on the Regional Disciplinary Committee. See: google “Jill Kanatzar bio”
Let’s parse this, just for fun. He didn’t flee in anticipation of his first trial, but only after he was convicted, with the evidence of the liaison between his ex-wife/accuser and the detective concealed, knowing that he committed no crime and yet convicted on false testimony.
After reversal? After the 11 to 1 hung jury? There’s a cause and effect issue at stake, and the effect doesn’t explain the cause.
At least it’s something she ought to know a great deal about.
There was incriminating evidence adduced at trial. With hindsight it was clearly a frame-up but I doubt the judge was so confident at the time. All he knew was (1) Wheeler fled prior to sentencing after the first trial and (2) he had been convicted of a sex crime against a minor (a special category for bail procedure in Missouri, according to the opinion). I can see where the judge lacked your certainty that Wheeler both would win the third trial and KNEW he would win the third trial, and so would patiently await the verdict.
The civil defendants are the bad guys here. I don’t think the judge did anything wrong.
It’s amazing how one failure justifies further failures, and how that somehow makes everything just fine. Except for the defendant, who pays the price for everyone else’s failures.
Yes, sometimes failure by a not-innocent person A justifies a compounding failure by an innocent person B. That means that you feel bad for the victim AND especially angry at person A. Nobody is claiming that anything was “just fine” but person B doesn’t have to be demonized in the final accounting of what happened.
Your original post asked “what crazy judge would think the defendant would flee?” That question having been answered, you still don’t want to let the judge off the hook.
I hope I haven’t given you the misimpression that I’m trying to persuade you. Some people’s sensibilities are such that they won’t be comfortable with the idea that a potential criminal might possibly abscond, and there is never an ironclad guarantee that it won’t happen.
That said, after the first appeal, when it became clear that conviction was obtained by concealment and frame-up, the rationale of using his flight to justify holding him seems unreasonable. After the second trial, with 11 to 1 to acquit, it reaches the point of crazy. That’s just my belief, but then I’m inclined to believe that defendants shouldn’t be detained just in case. You are entitled to support the detention of anyone and everyone, if that’s your comfort level. Indeed, this is precisely why I write that these are amongst the most arbitrary and capricious decisions in a criminal prosecution.
The flight does not appear to be the basis for the detention. §547.170 of the Missouri Revised Statutes prohibits bail for convicted child molesters and gives no provision for people wrongly convicted of molestation. Sounds like you think the judge should have violated the law. Not sure how following the clear law is arbutrary and capricious.
As I understand it, that law permits judges to set bail pending appeal, and exempts people convicted of a sex offense. It has nothing to do with setting bail for someone who has prevailed on appeal and the matter remanded for retrial. Once a conviction is reversed, it’s not a conviction. Does that sound like I think the judge should violate the law?
In fairness to Kanatzar, she got the bag of crap, handed it off to new lead counsel, and left the prosecutor’s office within a couple weeks. She can hardly be considered the problem. Also, White’s first attorney didn’t do him any favors by failing to catch a clue when the state didn’t put McKinley–the lead detective–on the stand. (Hint. Hint.) Maybe White should have looked for someone other than the best attorney SEO can buy.
Very good line, the best attorney SEO can buy. That’s the future.
Given the actual flight to Costa Rica, and the restrictions on bail in the MO law, this was just not the case to use as a springboard to expose poor bail practice. For instance, in Hurrell-Harring v State of NY, Judge Lipppman, the new Chief judge of the NY Court of Appeals, in reinstating this challenge to the provision of (or lack thereof) quality indigent represention, talked about the absence of defense attorneys at midnight arraignments (outside NYC) and the critical decisions that are made at that time – including bail, that affect the entire proceedings.
$14 million for 5 years – not worth it by any means – Is that being paid by the municipality that employed the cop? Is the cop still employed?
But that amount IS significant in light of what other states ‘offer’ for incarceration after wrongful conviction.
There are many posts, here and elsewhere, about the Hurrell-Harring decision. This is not one of them. Hurrell-Harring has absolutely nothing whatsoever to do with this case or this post. If you feel compelled to comment, make a serious effort to stay on topic. Focus, Greg,
As to why this case is used, think five years and three trials for an innocent man framed by a cop, which becomes clear after the first trial. It doesn’t happen all that often (thankfully), but the detention of an innocent man for so long seems a very good opportunity to make the point. Unlike you, I’m not inclined to support the imprisonment of innocent people, and presumptively innocent people, for a period of years. Nice of you to support the judge’s decision to do so. Do you plan to advocate for the restoration of the death penalty any time soon?
QUOTE “an innocent man framed by a cop; It doesn’t happen all that often”
I USED to think the same thing, but now I’m not as sure about that.
In scanning the net I have run across quite a few cases…too many…