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
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.