Secret Proceedings in Holtzclaw Case Raise Serious Issues

I was recently made aware of the case of Daniel Holtzclaw, an Oklahoma City police officer currently serving a 263-year sentence for 18 sex-related felonies, arising out of alleged crimes committed during traffic stops. Journalist Michelle Malkin invited me to join a panel discussion on wrongful convictions after the screening of her documentary Railroaded at the Manhattan Film Festival. The film took the Festival’s “Film Heals” Prize and sparked a wide ranging discussion about the Holtzclaw case. I strongly suggest you watch the documentary to learn all that is very questionable about Holtzclaw’s arrest and prosecution. In summary, I will tell you it has all the fingerprints of a wrongful conviction: overzealous prosecutors looking to get a high-profile conviction; investigating detectives coming to a conclusion before they even examine the evidence or even begin their investigation; those same detectives then looking for facts to fit their conclusion rather than developing facts to reach a conclusion; an accused protesting his innocence all the way through the process; ineffective lawyering; lots of negative pre-trial publicity tainting the jury pool; and shaky forensics. The Malkin piece does a fine job of summarizing all of this in a clear an concise manner.

So what I want to address to day is what for me is the most unusual and troubling feature of the case: The Oklahoma Court of Criminal Appeals entering a sealing order in the case surrounding hearings involving the DNA evidence presented. Holtzclaw appealed the 2015 conviction and it was wending its way through the courts when prosecutors sought permission to file a motion and accompanying materials under seal and outside of public view. On May 30, 2017 the appeals court entered two secret orders, directing unspecified proceedings to take place before Holtzclaw’s trial judge. Then in June, the judge held two days of closed-door hearings; prosecutors, a deputy police chief, and at least one witness from the DNA lab appeared. OK, that’s not all that unusual except for this salient fact: Neither the accused nor his attorneys nor the media nor the public were allowed to attend. The lengthy transcript of the hearing remains off limits to the public and even to Holtzclaw! As I watched the film play out in the darkened movie theater, I whispered to Jeff Deskovic (an exoneree who served 16 years for a crime he didn’t commit) “Can this be right? What country are we in?” To be frank, I had my doubts that Ms. Malkin got her facts straight. I mean, I know its Oklahoma, but how could the defense be excluded from a court proceeding revolving around the defendant’s case?

But, no. Sadly she got it right. So then I thought, did Oklahoma perhaps not ratify the US Constitution (not that it would matter of course as enough states did so back in 1789 to make it the law of the land)? But my legal research reveals that Oklahoma does indeed follow the US Constitution and even has its own State Constitution. So how is this possible? The answer is nobody knows. In an excellent article from August 2017, entitled Why the Secrecy With Holtzclaw Filings? Randall Coyne writes:

The cloak of secrecy now surrounding this case should be deeply troubling to every Oklahoman…. This is no way to run a criminal justice system. In 29 years of practicing and teaching criminal law in Oklahoma, I have never seen the level of sealed orders and secret, ex parte courtroom proceedings that has occurred in the Holtzclaw matter. The Court of Criminal Appeals’ sealed orders even violate its own rule requiring their disclosure.

Coyne describes himself as a retired professor of the University of Oklahoma College of Law, past president of the Oklahoma chapter of the ACLU, and a longtime criminal-defense attorney so I will assume that he knows what he is talking about when discussing Oklahoma law and procedure. In his article, Professor Coyne raises other disturbing facts surrounding the case:

    * Although a 347-page transcript of those secret hearings was filed, it remains under seal
    * A recently filed Open Records Act request for 15,000 pages of case-related records resulted in the release of fewer than a third — 10,000-plus pages remain withheld.
    * Oklahoma City now admits it destroyed all of its DNA investigator’s emails after her retirement in February.
    * There were previous issues surrounding “discredited, disgraced and dismissed” Oklahoma City forensic chemist Joyce Gilchrist

L to R: DNA expert Erica Fuchs, exonerees Anthony DiPippo and Jeff Deskovic, Michelle Malkin, Jenny Holtzclaw (Daniel’s sister), Jason Flom of the Wrongful Conviction podcast and Me Photo courtesy of Michelle Malkin

For me, the secret proceedings in the Holtzclaw case appear to violate two of the most fundamental precepts in American jurisprudence: (1) The right of the accused to attend and be represented at every critical stage of the proceeding and (2)the right of the accused and of the public to an open trial.

The first precept was developed in the case of Gideon v. Wainwright the landmark case arising out of Florida. In it, the Supreme Court unanimously ruled that states are required under the Sixth Amendment to the U.S. Constitution to provide an attorney to defendants at all critical stage of a criminal cases who are unable to afford their own attorneys. The case extended the right to counsel, which had been found under the Fifth and Sixth Amendments to impose requirements on the federal government, by imposing those requirements upon the states as well. About 2000 individuals were freed in Florida alone as a result of the Gideon decision. The decision did not directly result in Gideon being freed; instead, he received a new trial with the appointment of defense counsel at the government’s expense. Now that he had a lawyer, the jury acquitted the previously-convicted Gideon after only one hour of deliberation. As to Holtzclaw’s right to be present, we need only look at the Confrontation Clause of the Sixth Amendment to the United States Constitution which provides that “in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.” Generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial. The Fourteenth Amendment makes the right to confrontation applicable to the states and not just the federal government. How Oklahoma gets around Holtzclaw’s right to hear the evidence being presented at this hearing I don’t understand. Maybe its part of the FISA court and there are issues of national security?

As to the second precept, The First Amendment to the U.S. Constitution guarantees that American criminal court proceedings are presumptively open to the public. As the U.S. Supreme Court has explained, the public’s presumptive right of access to criminal proceedings is rooted in both logic and history. Under a closed system, the Court said, the public is denied knowing how a case has been decided or resolved, and then stymied from being able to talk about it and understand it and how the system operates. Under an open system, the public places a check on corruption and dereliction of duty in the judicial system. In the Supreme Court’s words, “a presumption of openness inheres in the very nature of a criminal trial under our system of justice,” and “enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.” The Supreme Court has determined that a wide spectrum of criminal proceedings are presumptively open, from jury selection and preliminary hearings to trial and appeals. In fact, the Court has determined that any aspect of criminal proceedings would be presumptively open if the “experience and logic” of access supported openness. The Supreme Court has ruled that even where there is a truly compelling need to keep particular information secret, the First Amendment requires that the closure be no broader than necessary to protect it. In addition, a court must consider alternatives to closing the proceedings, and must make specific findings on the record that are adequate to support closing the court to the public. Did Oklahoma go through this process before sealing the court from the public and even worse from the defendant? Remember, when we talk about the right to a public courtroom, we are usually talking about cases where we seal the court or keep out the press to protect a witness – either a vulnerable child, a confidential information or an undercover police officer. But even in those cases the accused gets to stay in the courtroom!

These are not obscure legal loopholes that are being ignored, or worse, trampled on. These are some of the bedrock principles of our Constitution. Many of our Founding Fathers were lawyers – trial lawyers- who had seen what could happen when a criminal justice system runs without fundamental rights to the accused and the public. In an example of genius, they put in place the Fourth, Fifth, Sixth, and Eighth Amendments to the Constitution to make sure that a person facing the massive power of the State had at least some rights to give them a fighting chance and – more importantly – to assure as much as humanly possible- that the innocent did not get convicted. I guess that is one reason why Daniel’s case caught the attention of Ms. Malkin. When we chatted about the case and her film before making the presentation at the Manhattan Film Festival, Ms. Malkin was quick to note that we come from opposite sides of the political spectrum. But she and I agreed that conservative people who consider them strict constructionists should value strict adherence to the Constitutional precepts that protect the accused. When I select juries in criminal cases, one of the first things I do when its my turn to address prospective jurors is ask a question: “Why are our men and women in the armed services overseas?” Invariably, a juror will answer “Protecting our freedoms” or “Fighting for our way of life” or “Protecting our rights.” I then ask what rights are they referring to and most folks will offer Freedom of Religion, Freedom of Press, Freedom of Speech and the Second Amendment. I then ask them “How about “The Presumption of Innocence” “The Right to Remain Silent” or “The Right to a Fair Trial by Jury.” Are these rights any less sacred or important than the ones you’ve mentioned? Its to remind them that every criminal trial is a test of our willingness to uphold these fundamental Constitutional rights. Paying lip service to them is not enough – we must firmly uphold them in each and every case, from shoplifting to homicide. So Oklahoma has a lot of explaining to do.

Ms. Malkin’s film, “Railroaded,” is an important part of getting that message out, particularly to her many fans and followers. They likely see themselves as “law and order” people who may not have been particularly concerned about wrongful convictions even when a slew of them have been splashed across our media outlets for the past few years. If it takes seeing three cases involving white police officers to wake them up to the injustices of the criminal justice system (and even perhaps the ineffectiveness and outright danger of the death penalty) then that is a good thing. Having spent a lot of time talking about these issues with Ms. Malkin, I can tell you that she is coming at this issue from the right place – her concern for the wrongfully convicted is not restricted to Daniel Holtzclaw or other wrongfully accused police officers. She understands the issues and remains committed to being advocate for the wrongfully convicted and for criminal justice reform. Her voice is an important and welcome one in the arena.

19 Comments

  1. I hoped to help someone I believe was wrongly convicted in the middle district of North Carolina. His appointed private atty. filed under seal–without asking court permission–documents that are likely to grant him a new trial. I couldn’t get any of 20+ lawyers to take on the appeal pro bono.

  2. Michelle Malkin’s documentary “Railroaded Surviving Wrongful Convictions is a masterpiece. Highlighting the wrongful convictions of three police officers, two white and one Asian/American. Gut wrenching!

      • I personally know police officers on the OKC police force that will tell you this is a wrongfully conviction! They will also tell you an officer is guilty but was protected.

        • Thank you for your remark. I had the feeling that was the case, because it seemed that SOMETHING was going on, but Daniel Holtzclaw is clearly not the guy who did it.

  3. Watch the interrogation and wonder whether an innocent man would flat line.

    Emotionless when asked “did your penis go into her mouth.”

    Who, me?

    • (A) These types of false assumptions have been disproven time and time again by DNA cases where there have been false confessions or statements with people who are emotionless, or have awkward body language or don;t comport with what the interrogators deem to be truth.
      (B) Many case studies have shown that police interrogators believe they are better at spotting truth/falsity than the average person when in fact – due to confirmation bias and presuppositions as you make here – they are below average in assessing truth/falsity.
      (C) All people don’t react the same way to stress. He may have been trying to rein in his emotions to seem professional and under control while inside his mind is raging trying to figure out what is going on.

  4. Thank you, Mr. Michelin, for an excellent piece.

    In my opinion, there are several reasons why Daniel did not fly off the handle in response to the detectives’ questions regarding Jannie Ligons’ false accusations.

    1. Prior to the Ligons incident, Daniel had been accused of excessive force 19 times. He was cleared by OCPD every time. False accusations (both excessive force allegations and allegations of sexual impropriety) are routine the area that Daniel patrolled. Once we understand that this was the 20th false accusation directed at Daniel, not he first, it helps explain his calm demeanor.

    2. Daniel is Asian-American. His mother, his primary caregiver during Daniel’s childhood, is Japanese. In Japanese culture, people generally are not loudmouths. They and more reserved and they treat their superiors with respect.

    3. Daniel is professional. He answered every question put to him calmly because that is who he is and what he was trained to do. He is not the type to lose his cool.

    Overall, the interrogation video is highly exculpatory. Daniel did not request a lawyer. He answered every question put to him and his story never changed. To this day, his story has not changed! He offered up his DNA to investigators without hesitation and asked that it be analyzed as soon as possible. He encouraged investigators to show him the video they claimed they had. He correctly stated that the video would not show any nudity or breasts or improper behavior.

    Those who believe Ligons’ claims should explain why her SANE test came up negative and why there were no fingerprints on her car. (She testified that Daniel had placed both his hands and her hands on top of her car.)

    While Daniel’s explanation was straightforward and has never changed, Ligons’ story contained numerous contradictions and inconsistencies. She testified that Daniel pulled alongside her car and looked at her through her window before he turned on his overhead lights and stopped her but her car had tinted windows which he could not see through at night. Ligons’ claims about her use of marijuana before the traffic stop differed. She also gave different descriptions of the number of pain medication pills she took before driving.

    Why, if Daniel assaulted Ligons, would he do so on a busy street in sight of numerous video cameras? None of this makes sense.

    Remember that in the U.S. criminal justice system, people are supposed to be presumed INNOCENT at trial. In a he said-she said situation with no forensic evidence supporting Ligons’ claims and no eyewitnesses and no video showing sexual improprieties, the jury clearly should have rendered a verdict of not guilty.

    Jesse Malkin

  5. Sorry, I need to make a correction to my earlier comment. I wrote: “She [Ligons] testified that Daniel had placed both his hands and her hands on top of her car.)

    I should have written, “She testified that Daniel had placed both his hands and her hands on top of his car.”

    Of course, this doesn’t change the bottom line. There was no forensic evidence supporting Ligons’ allegations.

    • Lol. And I do believe Mary Jannie Ligons also said that she umm performed fellatio on the man for. . “10 seconds”
      Smh.
      No one risks their career for a lousy 10 seconds of fellatio.
      Not to mention, minus saliva etc etc etc lol
      And let’s see her mouth was swabbed 2, maybe 3 times – results NEGATIVE. nada zero zip ZILCH. Nothing. Anywhere. Nothing even microscopic.

      More of that lying Ligons, wth.

  6. People these wrongful convictions are happening way too often and something absolutely needs to be done in an effort to avoid further detriment. One thing I noticed people don’t talk much about is that in MOST not all, but most cases
    (Daniel Holtzclaw for instance) of wrongful convictions. . bottom line- the REAL criminal is still out there somewhere. Free. In our population.
    Again there are a few exceptions.

    But on that note, time for an Officer Anthony Edwards follow- up…

  7. Quoting JANNIE LIGONS: All I can say is, I was a victim. I was traumatized. I went to therapy. I had a stroke behind this. And I still live with this, day after day. And all I know is, I wasn’t a criminal. I have no record. I didn’t do anything wrong. You said I did something wrong. You said I was swerving, which I was not. You just wanted to stop me. So all I can say is, I was innocent, and he just picked the wrong lady to stop that night.

    REALLY? Well wth does she think driving all over Oklahoma City with no license because it was revoked 30 friggin years earlier, is considered?

    Thirty damn years. And if she had no license then she also had no insurance. She’s 2 for 2 so far.
    I got a minute extra I’ll mention one more lil tiny thing-

    Jannie Ligons finally would admit to her binge drug use for days up until the time when she was pulled over.
    She’s been up doing PCP, pain pills and weed mainly, maybe a lil crack here and there. … some alcohol too .

    She knows drugs are illegal, she knew bc what happened 30 years earlier.

    Now, what was she saying. Smthn about how she wasn’t a criminal or smthn silly like that??

    Gawwww

  8. I have always thought this was a wrong conviction to much secrecy on fist attorney side .i pray for this police officer every day I beleive he was framed

  9. Just watching what I saw on TV I had that feeling that it was rigged. I don’t know that police officer but I beleive he was railroaded

    • I don’t know him either but his arrest and prosecution have many very troubling elements. As someone who has dealt with many wrongful conviction cases, I can say this case stinks.

  10. I sat in jury selection for 3 days. On a handful of accounts the prosecutors would say things like “we aren’t supposed to give details of the case BUT” and gave a number of sexual encounters they could prove and could those jurors codemn a man for life. Each question made me feel more uneasy then the last.

    I walked in not knowing what jury pool I would be part of that day but knew the broad details of the case before they started the selection. When I walked in I was convinced he was guilty. By the time I left I had seen the prosecution act strange enough that I wasn’t sure anymore. People are not as aggressive as these prosecutors were when they are telling the truth in my experiences…

  11. I never thought he was guilty , why were they all affica Americans and not one white person? It was just odd to me, and how much money did these women receive for a settlement?

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