June 4 KENTUCKY: Defendant's edited statement may shift blame in murder trial----Suspect blamed half-brother but comments cut Questioned by police about a carjacking and murder 2 years ago, Gary W. Hearn Jr. placed the blame on his half-brother Javon. "He told me he smoked him," Gary Hearn said of the Aug. 27, 2002, shooting of Manual High School graduate David Kiphart Jr. In a 26-minute statement videotaped by police, Gary Hearn alleged that Javon Hearn told him he shot the 18-year-old victim in the head, stole his car and dumped his body in a cemetery off Louisville's Cane Run Road. Gary Hearn, 20, denied any role in the murder and robbery, admitting only that he accepted a $2,600 stereo he said Javon Hearn, 24, stripped from Kiphart's car. But jurors won't hear Gary Hearn's allegations about Javon Hearn's role in the crime when Gary Hearn's statement is introduced in their capital murder trial, which is scheduled to begin today in Jefferson Circuit Court. The commonwealth has deleted all references to Javon Hearn in the statement, heeding rules laid down by the U.S. Supreme Court. The court has said that if a defendant implicates a co-defendant in a police interrogation and the defendant who gave the statement refuses to testify at their trial all references to the co-defendant must be redacted, or edited. Gary Hearn isn't expected to testify. Prosecutors defend the redactions, saying they followed the law. But Gary Hearn's lawyers say their client's statement has been edited so severely that what was his proclamation of innocence to the robbery and murder charges could be construed as a confession of guilt. "They are going to ask the jury to kill our client based on a statement" that prosecutors "know he didn't make," public defender Jay Lambert said in an interview. Lambert and co-counsel Ray Clooney, also a public defender, say that eliminating the references to Javon Hearn may lead jurors to believe that Gary Hearn told police that he killed Kiphart and stole his car. Both Hearns are charged with robbery, murder and tampering with evidence, for allegedly stripping Kiphart's car after he was slain. They both face the death penalty, and each has been held in jail on $250,000 bail since the arrests shortly after the crime. In a hearing May 21, Lambert called the edited transcript "judicially sanctioned perjury" and warned Circuit Judge Martin McDonald that, if he allowed it into evidence, "You may truly, honest to God, be putting an innocent man on death row." 2 law professors who reviewed the redactions for The Courier-Journal also said they were unfair. McDonald ordered the statement admitted, although he agreed yesterday to reconsider the issue. He also has rejected a motion by both defendants for separate trials, which would have allowed Gary Hearn's original statement to be presented in his trial in its entirety. Gary Hearn's lawyers, and the professors -Craig Bradley of Indiana University and William Fortune of University of Kentucky - say the revisions are misleading in part because they make it appear that the murder weapon belonged to Gary Hearn. He told Detectives Mark Fulmore and Terry Jones in his Aug. 31, 2002, statement that he could describe the weapon - a black .22-caliber revolver with a brown handle - only because Javon Hearn had shown it to him 2 weeks earlier. Gary Hearn also said he knew where the gun might be hidden only because Javon Hearn had told him and because they'd both used the same hiding place before. But in the edited statement, Javon Hearn isn't mentioned. Fulmore's question, "Had you ever seen the gun that Javon used against David?" is changed to "Had you ever seen the gun used against David?" Gary Hearn's lawyers say that will lead jurors to conclude that he was the one who fired the gun. Gary Hearn's lawyers also charge that the redacted statement will make jurors conclude that he told police he came into contact with the victim shortly before he was killed. In his full statement, Gary Hearn says he encountered Kiphart's car near the cemetery, and that Javon Hearn was driving it. The edited transcript removes the reference to Javon Hearn, leaving only that Gary Hearn encountered Kiphart's car. Redacting statements is not uncommon in trials of co-defendants, Chief Jefferson Circuit Judge James Shake said. "The trick is whether the redacted statement makes any sense," said Shake, who is also president of the Kentucky Circuit Judges Association. "If it doesn't, the only solution is to sever the defendants" and grant separate trials. Fairness questioned The issue presented by Gary Hearn's situation is unusual, legal experts say, because such redactions are usually made in confessions in which a defendant says, for example, "I did it, and he did it." And they are usually challenged by the co-defendant implicated in the confession. In the Hearns' case, the dispute pits the rights of one defendant against the other, defense lawyers say. Assistant Commonwealth's Attorney Rob Bonar defended the redactions in an interview, saying, "The Supreme Court has said to remove any reference to the existence of the co-defendant, and that's what we have done." Assistant Commonwealth's Attorney Scott Davis, who also is prosecuting the case, said in a hearing last month that, if Gary Hearn's lawyers "think there is anything misleading about the redacted statement, they can put their guy on the stand" to clear it up. But the criminal law professors who reviewed the case for the newspaper said such a stance could unfairly force Gary Hearn to abandon his constitutional right not to testify. "Clearly they have redacted it in a way that makes it seem like Defendant A is only the perpetrator of the crime, when the whole idea of his statement was to throw the blame on Defendant B," said Bradley, a former federal prosecutor and law clerk to now-U.S. Supreme Court Chief Justice William Rehnquist. "They have totally twisted this around," said Bradley, who also is author of "Criminal Procedure: A Worldwide Study." UK's Fortune, a former federal public defender, said: "Gary has a solid claim that the redaction is unfair to him. There is no explanation of how he knew where the gun might be other than he put it there. His innocent explanation for knowing that is cut out." Both professors said the solution is granting the Hearns separate trials. Unless defendants have clearly antagonistic defenses and a joint trial would compromise the rights of one or both of them, co-defendants charged in the same alleged crime are usually tried together, to save time and money. Kiphart's mother, Glenda F. Dorsey, said his family strongly supports McDonald's decision to try the Hearns jointly, in part so family members don't have to sit through separate trials and so the case can be resolved more quickly. Kiphart, who had graduated from Manual a few months before he was killed, was working at United Parcel Service and planned to enroll at Jefferson Community College, Dorsey said. He was the oldest of three children, and his brother and sister miss him dearly, she said. "I still spend many days and nights crying." Statement important Bonar said prosecutors wouldn't comment on the evidence or their trial strategy, but Gary Hearn's lawyers contend the prosecution wants to try the defendants together and is using the edited statement to try to force him to testify against Javon Hearn because there is little other evidence against the latter. "If they try Javon separately ... they don't have a case against Javon," Lambert said in an interview. Kiphart's body was found in Green Meadows Memorial Cemetery off Cane Run Road, and his white Monte Carlo was found the next day on Douglas Park Boulevard. Missing were the expensive sound system and chrome spoke wheels that had Kiphart's name engraved on the hubcaps. After an anonymous tipster reported that Gary Hearn had the stereo in his own car, police went to him for questioning three days after the murder. He tried to pull the stereo out of the dashboard as they approached, according to a citation. Gary Hearn told police that his brother had said he shot Kiphart the first time in the side by accident, then emptied his gun into Kiphart's head to avoid being identified and charged with attempted murder. Javon Hearn turned himself in a few days later and gave a statement denying any role in the robbery or murder or that he told his half-brother he'd killed Kiphart. At one point during his questioning, detectives attempting to get Javon Hearn to confess told him they had him on videotape at the cemetery. Although that wasn't true, police said he responded, "What can I say, if you got it?" According to court records, there is little evidence tying either brother directly to the murder. One witness identified Javon Hearn from a photo pack as the man he'd seen stripping the rims off Kiphart's car, but that witness was unable to identify Gary Hearn. In an initial interrogation, which wasn't recorded, police said Gary Hearn admitted he drove through the cemetery only after Detective Fulmore told him he'd been spotted there. "He began to cry," Fulmore wrote in his notes. "He then stated: `It's over. I'm gone at a young age. ... I knew this was going to happen, I didn't want anything to do with it.'" Fulmore said Gary Hearn added that he had nothing to do with the crime and was only seen in the cemetery because he was making a U-turn there. In legal skirmishes heading into the trial, attorneys for both defendants have raised questions about the redactions to Gary Hearn's recorded statement. Arguing for a separate trial for their client, Javon Hearn's lawyers, Steve Stripy and Michael Augustus, have complained that the editing of Gary Hearn's statement doesn't go far enough. "It is clearly evident on the face of the redacted statement that another unnamed individual was solely responsible for the victim's death, at least according to Gary Hearn," they wrote in their motion for separate trials. "The jury need only ... turn to the defense table to determine who is the only possible person to be the unnamed party." McDonald has said that he may admonish the jury that Gary Hearn's statement is not complete. But Lambert has said no admonition could rectify the problem for his client because the redactions gut his defense. "You can't turn a lie into the truth," Lambert said. "No admonition on earth can undo the damage done." (source: Courier-Journal) OKLAHOMA: Lawyers Aim to Spare Nichols' Life Defense attorneys outlined their case to spare the life of Oklahoma City bombing conspirator Terry Nichols, saying they planned to question prison guards and family members of bombing victims. During a hearing Thursday before judge Steven Taylor, defense attorneys said the prison guards will testify that Nichols has been a model prisoner in federal and state prisons and jails since he was arrested for the April 19, 1995, bombing. Jurors may also hear about logs from the Oklahoma County Jail, where Nichols was held prior to the start of his trial. The logs reportedly show that Nichols frequently read passages from the Bible in his cell. Defense attorneys also said they plan to question members of bombing victims' families who are opposed to the death penalty. One of them is Kathy Wilburn, whose grandsons, Chase and Colton Smith, were among the bombing's 168 victims. Defense attorney Brian Hermanson said Wilburn has met Nichols and has become friends with members of his family. Wilburn also frequently corresponds with Nichols. The defense will begin presenting evidence to Nichols' 12-member jury on Monday, Hermanson said. Nichols faces possible penalties of life in prison or death by injection for the bombing of the Oklahoma city federal building. He was convicted of 161 counts of 1st-degree murder on May 26, and already is serving life in prison on federal convictions for the deaths of 8 federal agents in the bombing. Oklahoma prosecutors charged Nichols for the deaths of the other 160 people and 1 victim's fetus. Prosecutors rested their sentencing case against Nichols on Thursday with tearful testimony from the families of bombing victims, including a man whose wife died in the blast. Hermanson objected when James Texter Jr. read portions of his written statement to jurors. "How has the bombing impacted me?" Texter asked. "Mr. Nichols took away my wife ... ." Victoria Texter worked in the Federal Employees Credit Union on the building's 3rd floor. Taylor told jurors to disregard the direct reference to Nichols, which he said prosecutors and defense attorneys had edited out of Texter's statement. Texter also said he and the couple's son, who was 15 when the bombing occurred, struggled to cope following his wife's death. "Vicki was not only my wife, she was my best friend and confidante," he said. (source: Associated Press) CALIFORNIA: Prosecutors Focus on When Peterson Died Laci Peterson's friends and family swarmed to her home the night she was reported missing, frantically scouring the neighborhood for clues as to what happened to the woman who was 8 months pregnant. The sad truth would come months later when the bodies of Laci Peterson and her fetus washed ashore along San Francisco Bay. Her half-sister, Amy Rocha, spent part of Thursday testifying for the prosecution against Laci Peterson's husband, Scott, who is charged with the murders. She described the scene at the Petersons' home on the day Laci Peterson vanished - Christmas Eve 2002 - and discussed the 1st phone call she received from Scott Peterson at about 5:15 p.m. "He was panicked," Rocha said. She didn't recall much else from that evening, she said, mostly that "everybody was pretty frantic" and that a steady stream of police and friends arrived to begin the search. "I just remember more people coming and there are a lot of police there," Rocha said. "The next thing I remember was going house to house with a picture of Laci." Rocha is set to return to the witness stand Monday. Court is not in session Friday. The questioning capped the 1st full day of testimony in the case that is expected to last up to 6 months. In an attempt to establish when Laci Peterson died, prosecutors focused on the clothing she wore during the last day that anyone besides her husband reported seeing her alive. Meanwhile, defense lawyers assailed what they characterize as a botched investigation that culminated in 2 murder charges against Scott Peterson. Prosecutors claim Peterson killed his wife in their Modesto home on or around Christmas Eve morning 2002, then drove her body to San Francisco Bay and dumped it from his small boat. Lawyers for Peterson, who says he was fishing on the bay that day, speculate that someone else abducted his wife and then framed him after learning his alibi. The remains of Laci Peterson and her fetus were badly decomposed when they washed ashore in April 2003, and authorities have not offered physical evidence to pinpoint exactly how or when they were killed. As a result, Distaso spent much of Thursday talking about her clothing. Peterson told police that his wife wore a white shirt and black stretch pants when he left for a solo fishing trip Christmas Eve morning. Prosecutors have said her remains were clad in khaki pants. Two prosecution witnesses who work at a spa Laci Peterson visited around midday Dec. 23 testified she wore a white shirt and black stretch pants. 2 other witnesses, including Laci Peterson's half-sister, testified she was wearing light-colored pants that evening at a salon. That chain of recollections could fit the prosecution's theory that Peterson killed his wife late Dec. 23 or early Dec. 24 - after she had changed clothes - then disposed of the body after daybreak. Peterson, 31, would face the death penalty or life without parole if convicted. Even as prosecutors tried to make their case, Peterson's attorneys tweaked authorities with assertions of their incompetence. The owner of Sweet Serenity Day Spa, where Laci Peterson went for a waxing treatment just after noon Dec. 23, said police inaccurately recorded parts of her initial statement. Michelle Buer said she didn't tell authorities on the day Laci Peterson vanished that she suspected Scott Peterson was involved - though she did say that later. Defense lawyer Mark Geragos pointed out that although video surveillance tapes were available from the salon where Laci Peterson accompanied her husband for an hourlong haircut that evening, police didn't try to retrieve them until after store workers had taped over the content. Police do not have any pictures or video showing what Laci Peterson wore on a day she went grocery shopping, visited the spa and salon and made sure the house was clean. The errands appeared to be routine preparations for hosting a Christmas dinner with her family. (source: Associated Press) MISSOURI: JUSTICE: It's only fair -- Extend fair payment legislation to three men mistakenly jailed for decades. Imagine serving 18 years in prison for a crime you didn't commit. What would you want most when you finally became free? Revenge? Larry Johnson wants to go to college and start his own business. Most of all, he wants to sleep in a bed of his own. Ironically, this is a luxury he hasn't known since his release from prison in July 2002. You may remember Larry Johnson. DNA testing proved he could not have committed the crime for which he had been convicted. He was incarcerated for nearly 2 decades, starting from when he was jailed in 1984. I recently had the privilege of visiting with Mr. Johnson, who is now 50. We discussed his hopes for the future and the challenges he faces as he struggles to rebuild his life. I was impressed with Mr. Johnson's courage, character and optimism despite the fact that he has had trouble finding a steady job and, as a result, has spent his nights sleeping on a couch in various relatives' homes. In my 10 years as a prosecutor, I have seen the brilliance of our legal system, but the system is made up of human beings and, as such, it cannot be perfect. Tools such as advanced DNA testing have become fundamental to ensuring the basic fairness of our criminal justice system. True fairness cannot be achieved unless individuals exonerated by DNA testing are compensated for the time they have spent in prison. Recent legislation has sent a hopeful signal that our elected state leaders care about individuals like Larry Johnson. Because some of the information reported regarding this legislation has been incorrect. I'd like to set the record straight: In the final 2 weeks of the legislative session, House Speaker Catherine Hanaway spearheaded a bill that, if signed by Gov. Bob Holden, will provide compensation to any individual who is cleared by DNA evidence after serving time in prison - $50 for every day the person was wrongly imprisoned. This compensation would come at no expense to the taxpayer. In fact, this bill will be funded by convicted felons through a court surcharge. The overwhelming bipartisan support for this bill certainly deserves recognition. Having met with many of these legislators, including all those from the city of St. Louis, I can attest to their concern and compassion for the wrongly convicted. However, the progress represented by the bill is overshadowed by the fact that it does not apply to the only three Missourians to date who have been exonerated by DNA testing: Larry Johnson, Lonnie Erby and Steve Toney. These men have no other way to seek compensation for the damage inflicted on them by the state, compensation that could pay for such basic necessities as education, a car, housing, food and clothing. I strongly encourage Gov. Holden and state legislators to take the logical, fair step of expanding the bill to include these 3 men. In addition, it is essential - and fair - that we provide exonerated men and women with resources equivalent to those we provide to parolees: job training, counseling and the basics needed to survive day to day as they make their transition back into society. I'm impressed with Larry Johnson. Few among us could endure an experience like his and emerge with such a positive outlook. He has the spirit and drive to get an education, start a business and own a home. The just society we all believe in will provide him with the support and compensation that, in all fairness, he deserves to try to put his life back together. (source: Commentary, Jennifer M. Joyce is the St. Louis circuit attorney; St. Louis Post-Dispatch, June 2)
