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Tuesday, November 23, 2010

Stench Grows Stronger Around Death-Penalty Case in Alabama

Katherine Helen Gillespie

An Alabama jury yesterday recommended the death penalty for Ryan Gerald Russell, who was convicted of killing his 11-year-old cousin.

Katherine Helen Gillespie died from a gunshot wound to the head in June 2008. Her body was found in an SUV at the home where she lived with Russell, her legal guardian. Court documents showed that Russell had planned to adopt Gillespie.

Gillespie's death is a sad and baffling story. And it is picking up a strong hint of injustice as Russell probably heads to death row for a crime that does not appear to fit the definition of murder. Gross incompetence by investigators and defense attorneys--not to mention the judge's history of unethical behavior--seem to be glossed over.

Shelby County Circuit Judge J. Michael Joiner will sentence Russell on December 16. Joiner can accept the jury's recommendation or sentence Russell to life in prison without parole.

As we reported yesterday, two curious elements of the Russell prosecution jump out:

* His court-appointed defense attorneys, Mickey Johnson and Rick Vickers, chose not to put on any defense. Its common for defense lawyers not to put the defendant on the stand. But to present no defense at all, to present no rebuttal to the prosecution's case? Can you imagine Johnny Cochran handling the O.J. Simpson defense in such a fashion? Of course, Johnny Cochran was not a court-appointed attorney.

* An evidence technician admitted under cross examination that his team left behind four guns at the scene, including what they now believe to be the murder weapon. The prosecution had determined that one gun was used in the shooting but changed its mind when one of Russell's family members found another gun in his home several months later.

Here is perhaps the most stunning element of this case: Based on press reports, from both The Birmingham News and the Shelby County Reporter, no evidence was presented that tied Russell to the actual act of shooting Gillespie. Articles about the testimony of a forensics expert made no mention of fingerprints, powder residue, or any other evidence that proved Russell fired the weapon. Yes, the gun was found in Russell's house. But proof beyond a reasonable doubt that he fired the gun? If any was presented at trial, it was not reported in the press.

Ed Moran, from the Alabama Department of Forensic Sciences, testified about this crucial part of the case. The Birmingham News reported on Moran's testimony in an article with the headline: "Girl shot at close range, expert says." Did Moran present any evidence about who did the shooting? If he did, it's not in the article?

Ryan Gerald Russell

Did either of Russell's court-appointed defense attorneys ask Moran this simple question: "Do you have any evidence that proves conclusively that Mr. Russell pulled the trigger in this close-range shooting?" If such a question was asked, there is no mention of it in any article. And if such a question had been asked, it appears the answer would have been no.

The list of adults who failed Katherine Helen Gillespie is long. Why was an 11-year-old girl living in a home with a man who kept roughly 40 guns on hand? Why was an 11-year-old girl living in a home with a man who had a drinking problem so severe that he apparently would black out at times?

Emily Webber, Russell's former girlfriend, testified about the serious nature of his drinking problem and the threat it posed to Katherine. From the Shelby County Reporter:

Webber said she lived with Russell at 5048 Kerry Downs Road for a total of a year and half, including the first six months Gillespie came to reside at the home. Webber said she was not living with them at the time of the crime.

Both times Webber moved out of the residence, she said it was because of Russell’s constant drinking. Webber said there were several occasions when Russell was drinking and driving with Gillespie and other children in the car. She often found vodka bottles in the car.

“The home of an alcoholic is not a suitable environment for a family, especially a family with children in it,” she said.

Webber said she couldn’t control Russell when he was drinking. She said he often wouldn’t realize he was walking around the house without clothes on if he’d been drinking.

“All I wanted was to give Katherine the perfect little family that she deserved,” she said. “This is a child that lost her mother at an early age and had no father figure in her life. That is not what she had with Ryan in the home continuing to drink.”

“I went to Ryan’s family several times and told them ‘Ryan has a drinking problem. I need help. I need to get Katherine out of this environment,’” she added.

Webber's concerns went unheeded. And that, apparently, helped cost Katherine Helen Gillespie her life.

Evidence about Russell's drinking only adds to the questions about the murder conviction in this case. It appears the prosecution did not prove that Russell fired the weapon in question. And if he did, it's hard to see the intent required for a murder conviction, much less the aggravating circumstances required for the death penalty.

This whole case smells like a railroad job, and I've seen that kind of thing happen before in Shelby County courtrooms. I've been writing for three-plus years about the unlawful actions of Judge J. Michael Joiner in the lawsuit a neighbor filed against me. That experience caused me to start a blog about judges, lawyers, prosecutors, and other officials who abuse the public trust. I wound up losing my job because of what I've written on this subject.

Now the same judge who butchered a relatively simple civil matter is probably going to wrongfully send a man to death row. This is a classic example of why we need to pay close attention to the kinds of people we entrust with the role of judge.

I've written in exhaustive detail on this blog about many of the unlawful rulings Joiner made in my case, apparently in an effort to favor his buddy, opposing counsel William E. Swatek. But I still get an occasional comment from a reader that goes something like this: "That the judge in your case is corrupt, or ruled unlawfully, is a matter of opinion. Just because you think it's so doesn't make it fact."

Actually, it is fact. Anyone who lives in Alabama, or is passing through, can stop at a courthouse, find a public computer and look up the case. It's Mike McGarity v. Roger Shuler, CV 00-1248 in Shelby County Circuit Court. (Anyone who has access to AlaCourt, can look up the case there.) If you know the relevant procedural law, you don't even have to read the case file to see much of the corruption; it's apparent just from checking the docket report.)

Joiner, by my conservative estimate, made 20 to 30 unlawful rulings in my case, all favoring Bill Swatek and his client, Mike McGarity. But I tend to focus on summary judgment because that's the most important issue, the one that would have brought the case to a lawful conclusion. And the indisputable record shows this:

The case had to be dismissed on so many grounds--eight to 10, at least--that I filed three motions for summary judgment (MSJ), each raising distinct issues of fact and law. On the first MSJ, McGarity filed a response, but he filed no timely evidence as required by law. He did file an affidavit--which did not dispute the fundamental facts and law at hand--but it was 10 days late and had to be stricken as a matter of law. Joiner denied summary judgment anyway.

On the second and third MSJs, McGarity filed no response at all--no affidavit, no evidence, nothing. That meant the evidence I filed, which was different from the evidence in the first MSJ, was uncontroverted. In such circumstances, Alabama law is clear: Summary judgment must be granted and the case dismissed. In fact, the law in all jurisdictions is clear: Such an MSJ simply cannot be denied, and it's a "nondiscretionary" ruling. It's about as clear and universal as law can get, like "three strikes and you're out" in baseball.

But Joiner could not get it right, and he denied all three MSJs. I could teach a seminar on all of the procedural, statutory, and case law that says this cannot be done. But here is the simplest way to understand it, straight from Alabama case law:

"When a party opposing a properly supported motion for summary judgment offers no evidence to contradict that presented by the movant, trial court MUST consider the movant's evidence uncontroverted, with no genuine issue of material fact existing." Voyager Guar. Ins. Co., Inc. v. Brown 631 So. 2d 848 (Ala., 1993).

It can't get much more clear than that. For those who think I'm a misguided, loony conspiracy theorist, I invite you to check the public record in Mike McGarity v. Roger Shuler, CV 00-124, and then read Voyager Guar. Ins. Co. v. Brown. That will show you that J. Michael Joiner is, in fact, corrupt--and it's not a matter of anyone's opinion.

Back to the matter at hand: We have a demonstrably corrupt judge overseeing what appears to be a deeply flawed trial that could result in a man wrongfully being sent to death.

Is Ryan Gerald Russell a troubled individual? It sure looks like it. Would I want my child left in his care? Not in a million years. Do we have any proof that he actually fired the gun that killed Katherine Helen Gillespie? I don't see it. Do we have any proof that he intended to kill his young cousin? I don't see that, either.

Should we allow J. Michael Joiner, with his documented record of unethical behavior, to send anyone to death row? No, we should not.

Will there be any means of correcting what appear to be numerous mistakes in this trial--once the state has killed Ryan Gerald Russell. No, there will not.

Tragically, we cannot bring Katherine Helen Gillespie back. By all accounts, she was a beautiful, cheerful, loving, smart little girl with a bright future. We should use her death to closely examine a justice system that is badly broken. A system that cannot get the simplest of civil matters right has no business taking anyone's life.

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