Sleepless in Midland

The tv perp walk

The whole scene appeared to have been orchestrated to maximize Mr. David Allen's humiliation. If he had been offered the opportunity to present himself at the jail on his own it would seem reasonable to assume he would have taken that opportunity. But no. Someone made the decision to go to his house and arrest him. But first they had to notify every tv news crew and newspaper in the area and give them time to get there and set up.

Mr. David Allen was a theater professor at Midland College, but he surely didn't appreciate those theatrics. So now his job is gone, his friends are gone, and the community is repulsed by him. All of this is because of something Mr. Allen allegedly downloaded through the internet.

Were the handcuffs, waist chain and leg irons used because the arresting officers honestly thought Mr. Allen would take off running? Since it was a tv event anyway, one would think it would make a better show if he had taken off on foot.

And here's some irony. According to Bob Campbell's report, the prosecutor wants Mr. Allen held without bond in part because "[Mr. Allen] is a danger to the community and apparently to himself" as evidenced by his having been hospitalized for overdosing on panic disorder and anti-depression drugs. So here's what we have. The prosecution put Mr. Allen through a humiliating perp walk in front of tv cameras. Mr. Allen experienced an emotional reaction and took too many pills. And for this reaction the prosecutor wants him held without bond. If there was genuine concern for Mr. Allen's wellbeing one has to question why they opted for the tv perp walk.

So here are some relevant questions that hopefully will get answered before this is all over with. How many children did Mr. Allen physically touch in a sexual manner? If Mr. Allen didn't actually commit the injurious acts, who did? And have those people been prosecuted? Has the photographer been prosecuted?

And here's the obligatory disclaimer. I would never intentionally harm a child. I'm definitely not a fan of kiddie porn. But I strongly disapprove of these televised perp walks which don't achieve any real justice and don't seem to have any other purpose than to publicly humiliate someone we are supposed to presume is innocent.

Updated 5/26/08 - An individual who wishes to remain anonymous reported that at least one and probably all of the local news outlets received a telephone call from someone with ICE the night before letting them know about the arrest. ICE stands for Immigration and Customs Enforcement. What is their mission? Here's what their About page says:

What we stand for

Our mission is to protect America and uphold public safety. We fulfill this mission by identifying criminal activities and eliminating vulnerabilities that pose a threat to our nation’s borders, as well as enforcing economic, transportation and infrastructure security. By protecting our national and border security, ICE seeks to eliminate the potential threat of terrorist acts against the United States.

We must conclude from this that the tasks of securing the nation's borders and eliminating terrorist threats have been assigned lower priorities.

WHEW! What a trial!

I'm sure everyone involved in that trial is relieved it's over.  The trial, of course, was State vs. Pickard which ended yesterday with the jury finding the defendant not guilty.  I attended as an observer with the intent of writing about it, and you can read the daily summaries here.

I had heard somewhere that arson cases are supposed to be difficult because there are so many elements to prove -- the prosecution has to prove not only that the fire was caused by arson but that the defendant caused it intentionally.  So this case became interesting as soon as the indictments were made public.

The case didn't really proceed the way I expected.  Fire investigators look at various things to tell them whether a fire is intentionally set, and I was expecting there to be some doubt as to whether it was, in fact, arson.  However, the defense stipulated in its opening statement that it was arson.  And evidence that gasoline soaked rags had been left throughout the house left no doubt about it.

So the case became much more human.  Did that particular defendant cause that particular fire?

The indictment was obtained almost three years ago by a prosecutor who is no longer with the Midland County District Attorney's office.  And, by the way, the person who was District Attorney back then is no longer there either, so a new set of people inherited this case. There were probably meetings in the incoming DA's office to decide whether to proceed or dismiss.  But the fire was definitely arson, and while there was no "bloody glove," there were several things that made the defendant look suspicious.  So at some point a decision must have been made to go forward with the case.

Looked at one way, the evidence suggests the defendant was guilty.  But looked at another way it could all be coincidental.  For each of those things that made the defendant look suspicious there was a reasonable explanation.  And ultimately the jury had to decide whether all of those suspicious elements when looked at as a whole indicated guilt, or whether the defendant simply through bad luck, coincidence and timing had all of these things happen that merely made an innocent person look guilty.  The jury must have decided that there was not enough evidence to prove him guilty beyond a reasonable doubt, and they found him not guilty.  That's the way our criminal justice system works.

So there I was on day one with my notebook, watching and writing, trying to look inconspicuous.  I stayed all day and showed up again the next day, so it didn't take long for people to get curious about why I was there.  And when they found out they were probably a little bit apprehensive about the idea of a blogger listening and  planning to write about what they said.  It would have been easier to wait until it was over and write about it in story form.  But I started the first day writing a chronology of the day's events, and so I continued in that fashion throughout the trial.  And when the people in the courtroom realized that I didn't have an iron in the fire, so to speak, we all got along very well.

On the last day after both sides rested the case went to the jury, and the Bailiff, Ronnie Beardon, kept very close tabs on them.  They all had to stay together, so when someone wanted a smoke break all 12 went outside.  They could talk about the case only when the group was together.  They couldn't make or receive any phone calls, and Mr. Beardon dutifully placed several calls to jurors' family members and business associates with instructions and messages.  And Mr. Beardon cheerfully relayed any return messages, although he did decline to deliver a kiss.

If a jury doesn't reach a verdict then they get sequestered overnight at the nearby Hilton.  They get an entire floor to themselves so that there is no possibility of outside interference.  There can be no tvs, radios or working telephones.  They can communicate with no one, and sheriff's deputies stand guard in the hall at night.  But that wasn't necessary this time.

The jury came back after seven hours of deliberation with a verdict:  Not guilty.  The defendant's wife let out a gasp that can only be described as the  sound of relief.  Eight grueling days of trial, and it was over.

There's still a civil case pending in which Mr. Pickard is suing his insurance company for payment on his claim for the loss of the house and contents.  And each day of testimony a lawyer from the firm representing the insurance company was in there taking notes.  But that trial is in the future.  And it's only about money.  This was the big one.

State vs. Pickard - tried for arson

[Updates added at the bottom. Current through trial day eight, 5/7/08, verdict: NOT GUILTY!]

[Added:  Were you a juror in this case? If so, we would love to hear from you.  Send me an email.  I would need to confirm that you really were a juror, but otherwise you could remain anonymous.]

If you are a juror in the captioned case, I appreciate your interest in what I have to say, but to help the defendant get a fair trial and to comply with the judge's order please hit the "X" in the upper right of your screen and come back when the trial is over.  Thanks, see you soon.

Now for everyone else, let's get down to business.

First some background.  In the wee hours of June 21, 2005, a fire destroyed much of the house at 5000 Heather Rd. in Midland, Texas.  A fire investigator determined that it was arson, and a grand jury issued indictments against two people: Robert Marshall Pickard and Lessie Neal Griffen.  Charges were later dropped against Ms. Griffen, and she married Mr. Pickard becoming Lessie Pickard.

This trial has been postponed so many times it makes the head spin.  For some pretrial highlights see infra.  So finally the trial started on 4/28/08.  Here are some highlights.

Day one - 4/28/08

During the voir dire the prosecutor explained that he expects to prove that Mr. Pickard committed arson through the conduct of another in violation of Sections 28.02, 7.01 and 7.02 of the Texas Penal Code. 

The prosecutor, Aaron Pier, and the defense attorney, Hal Brockett, laid out the way they expected the case to proceed during their opening statements.  Mr. Pier plans to offer enough circumstantial evidence to establish beyond a reasonable doubt that Mr. Pickard is guilty of the charge.  Among other things, he expects to show the following:

• That Mr. Pickard boarded his dogs at a kennel for the first time prior to the fire;

• That Mr. Pickard is divorced from Susan Roberts, and his two daughters live with her;

• That prior to the fire Mr. Rickard's live-in girl friend (now Mrs. Pickard) moved out of the house;

• That Mr. Pickard was in Amarillo on June 20, 2005;

• That in the early A.M. of June 21, 2005, a 911 call was received about a fire at the house;

• That the house was a total loss;

• That testimony from fire investigators will be that the house appeared as if someone had just moved in or out;

• That there were gasoline soaked towels lying around the house; and

• That Mr. Pickard had moved some antiques out of the house prior to the fire.

Mr. Brockett during his opening statement explained that he expects the evidence to show that there is a reasonable explanation for all of Mr. Pickard's actions.  For example:

• The dogs were at the kennel for the first time because, although this was not the first time Mr. Pickard had left town, this would be the first time there would be no one to care for them while he was out of town; 

• There were over 500 personal property items lost in the fire;

• Some of his furniture had been used to furnish a room at another location rented by him and his poker buddies;

• Mr. Pickard was typically out of town two or three days a week at his job selling medical devices and that he often stayed in the operating room as those devices were used by the doctors;

• Mr. Pickard had an adjusted gross income of $174,000 in 2005 and was not in debt;

• Mrs. Pickard's ex-boyfriend had been in the house and made some interesting remarks about the house and Mrs. Pickard, and he drove around in a pickup truck with gasoline cans.

By far the most important part of the trial so far, in my opinion, was the stipulation by Mr. Pickard's attorney, Hal Brockett, in his opening statement that the fire was caused by arson.

Michael Cota -- The prosecution's case began with the testimony of Midland Fire Department Investigator Michael Cota, and much of the testimony seemed designed to provide evidence that the fire was arson.  The defense had already stipulated that, but it was probably too late for the prosecutor to change the plan.

Anyway, it's now a case of "who done it?"

The defense may be planning to pin it on the new wife's ex-boyfriend.  And interestingly, the defense invoked the witness rule requiring all witnesses to exit the court room.  Mrs. Pickard was the only witness present, and she dutifully left the court room.  Note, it was the defense, not the prosecution, who requested the implementation of the rule.  Maybe by the time it's all over we'll get a better idea what that was all about.

So the first day ended with Mr. Cota testifying about what he found at the fire scene.

Day two - 4/29/08

Day two got very interesting just prior to the end of the day.  But let's take things in order.

Michael Cota, continued -- The day began with Midland Fire Department Investigator Michael Cota on the witness stand under direct examination by the prosecutor, Aaron Pier.  He testified about the antique furniture and other items belonging to Mr. Pickard which were located at the poker room rented by Mr. Pickard and his poker buddies.  And he testified about not finding many clothes at the house as he investigated the fire.

He testified that Mr. Pickard told him that he had the dogs boarded before his trip because Lessie Griffen was going to be out of town and couldn't care for them.  And he testified that Mr. Pickard told him that he had visited Ms. Griffen at work on Monday, the day before the fire, which Mr. Cota said was inconsistent with the reason why Mr. Pickard said he had boarded the dogs.  On cross examination Mr. Cota admitted that he had assumed that Ms. Griffen had not gone on the trip but that he had not actually investigated whether she had registered for the conference she had planned to attend or had gotten hotel reservations.

Defense attorney Brockett further cross examined Mr. Cota with questions that were intended to leave the jury with the impression that Mr. Cota didn't spend much time investigating any of the other possible suspects.  For example, Mr. Cota relied solely on Ms. Griffen's ex-boyfriend's cell phone records to verify his alibi while admitting that it was possible that someone else besides the ex-boyfriend could have used that cell phone at the particular time and place where the exonerating call was made.

And apparently someone made an anonymous Crime-Stopper call implicating Mr. Pickard's daughter's boyfriend.  Mr. Cota interviewed him and ruled him out as a suspect.

Other witnesses -- The first firefighter to arrive at the fire scene was called to testify about what he saw.  And although it was an interesting story, his testimony didn't really have much bearing on the issue, i. e., whether Mr. Pickard had someone start the fire.

An analyst with the Texas Fire Marshall's office testified about the evidence that was collected at the scene, but since we already knew the fire was started by arson, her testimony didn't add much.  And the same could be said about the testimony of the private fire investigator hired by USAA, the insurer of the house.  By the way, Mr. Brockett let it be known that USAA is currently fighting Mr. Pickard in civil court over his insurance claim.

The Maid -- And finally, Mr. Pickard's maid.  Most compelling, yet most difficult to understand.  The maid didn't speak English, so an interpreter translated the questions and answers.  Even then she had trouble understanding the questions, and several times the answers weren't responsive to the questions.  Further, from the questions Mr. Pier asked, it became awfully easy to assume that her answers were inconsistent with what she had told Mr. Cota during the investigation.  So she was sent out of the room to listen to the taped interview to refresh her memory.

When she returned she still didn't answer the questions the way Mr. Pier seemed to expect.  She was probably supposed to testify about all the things that were alleged to have been removed from the house prior to the fire.  But she testified that all those things belonged to Daisy (she meant Lessie), and that Daisy had taken them when she moved out.  Furthermore, she testified that Mr. Pickard didn't have many clothes.  That was significant because Mr. Cota and the private investigator had both testified about there not being many clothes implying that they had been secreted away prior to the fire.

But then she dropped a bomb shell.  She said that on the Thursday before the fire she arrived at the house to clean it.  Mr. Pickard was gone, and with her own key she let herself in.  She was in the house by herself, and she heard a noise.  It scared her.  And she found the door to the garage open, and the garage door was open.  Did she call the police?  No.  Did she tell anyone?  Yes, she told Mr. Pickard.  When?  Sunday.  Sunday after the fire three years ago?  No, last Sunday, three days ago!

According to her she didn't think it important enough to tell anyone at the time.  But later she began to think differently and feel very guilty.  So she had her son call Mr. Pickard to interpret for her and ask for his forgiveness.  "Why have you not told me?" she said he asked.  "I'm sorry," she said.

End of day two.

Day Three - 4/30/08

The maid (continued) -- Day three of the trial began with the maid on the witness stand, and it was tough going for her.  It developed in her translated testimony that she had no education, could not read and could not write.  The previous day ended with her telling about a noise and the unlocked doors she found at the house the day before the fire.  And there was a discrepancy about whether the MFD investigator, Mr. Cota, had been told.  Mr. Cota was called back to the stand and admitted that she did tell him that.  However, there was no testimony from any witness indicating that this information was used in anyone's investigation.

The poker buddy -- The next witness was Ernie Shelly, the poker buddy who rented the room they referred to as the poker room.  Due to illness he was unable to come to the trial, so they showed his video deposition.  Mr. Shelly testified that he helped Mr. Pickard move Mr. Pickard's dogs to the kennel in Mr. Shelly's Ford Escape prior to the fire.  This bit of information was important because later testimony by the insurance investigators suggested that Mr. Pickard told them initially that he had moved the dogs by himself in his Cadillac and only later told them about Mr. Shelley's help.  This discrepancy was used by the insurance investigators as one of the "red flags" which suggested to them the possibility that Mr. Pickard may have been responsible for the fire and which led a USAA committee to a deny his insurance claim.

Among other things, Mr. Shelly testified that Mr. Pickard brought some antique furniture to the poker room from his house prior to the fire.

And the issue of gambling debts was raised, however Mr. Shelly proclaimed that Mr. Pickard had no gambling debts. And he stated that Mr. Pickard had once borrowed $5,000 from Mr. Shelly but had repaid him in four months.

Had Mr. Shelly ever been convicted of a crime?  Mr. Pier asked the question, and Mr. Brockett objected, but since we were about to watch the answer on video the judge must have already ruled that it was admissible.  The answer was "yes."  He had been convicted of bank fraud in 2002 and had been given probation.

The insurance company -- The next two witness called by the State were USAA employees, insurance adjuster Richard Carlson and investigator Cristin Gray.  They both testified about being assigned to the Pickard house immediately after the fire, and they were both at the scene around the same time.  They both spoke of "red flags" which suggested arson and that Mr. Pickard could have been responsible for the fire.

They testified separately, but their testimony was similar.  Mr. Carlson's "red flags" were as follow:

• The place smelled of gasoline after the fire;

• The time of day was unusual for a house fire;

• Mr. Pickard was out of town when the fire started;

• Mr. Pickard had kenneled the dogs for the first time prior to the fire;

• He had moved irreplaceable furniture prior to the fire;

• There was a recent job change;

• Some credit card debts;

• A relationship with a woman who also owned a house; and

• Discrepancies in statements of the parties (the only discrepancy he could recall was Mr. Pickard's initial statement about how the dogs got to the kennel).

Ms. Gray had similar "red flags," but added these:

• Mr. Pickard had been late three times in his mortgage payments even though he was current at the time of the fire;

• Mr. Pickard was calm and very talkative about other things but quiet about the fire in her initial conversations with him;

• When asked, Mr. Pickard said he paid his self employment taxes annually but didn't volunteer that he had not filed a return since 1996;

• A door knob had fallen off one of the doors the morning prior to the fire, and Mr. Pickard put duct tape over it;

• There was more property moved from the house prior to the fire than he stated in the initial interview;

• Although he may have had income of $20,000 to $22,000 per month he seemed to be living from paycheck to paycheck;

• He owed his mother $30,000 and Lessie $3,000;

• He couldn't produce his American Express statements; and

• He had been indicted for arson in this case by a Midland County Grand Jury.

Anyway, USAA denied Mr. Pickard's insurance claim, and the company is currently a defendant in a civil suit in which Mr. Pickard is trying to collect on his insurance policy.

End of day three.

Day Four - 5/1/2008

[Note:  As I said above, if you are a juror in this case and are looking at this prior to the end of the trial then you really shouldn't be here.  In the interest of justice and a fair trial, not to mention the Judge's admonition, please stop reading now.]

The ex-wife and the two daughters -  The prosecution is contending that the moving of certain furniture and other items from the house to Mr. Shelly's poker room was an attempt by Mr. Pickard to get valuable or sentimental items out of the house in anticipation of the fire.  And Mr. Pickard's two daughters were asked about those items.  But their answers may have helped the defense as much as the prosecution as neither could confirm that those furniture items had any sentimental value to anyone. 

Another prosecution contention was that there were no family photos in the house at the time of the fire.  One of the daughters went to the house after the fire and collected enough family photos to fill what appeared to be a one gallon plastic bag.

She was asked about the boyfriend with whom she had broken up prior to the fire, and she said he laughed about the fire and posted something about it on his My Space page.  She said she told the MFD investigator that the boyfriend got irrational when they broke up.

The other daughter described the bed frame that had been moved to the poker room.  It appeared in the photo to be an antique.  She said it was broken and that Mr. Pickard had attempted a makeshift fix.

When Mr. Pickard's ex-wife took the stand she made it clear that there was no love lost between them.  When asked what kind of relationship she had with Mr. Pickard's new wife she replied, "I do not have a relationship with Lessie Griffen."

On cross examination Mr. Brockett called to the jury's attention the negative things she told MFD investigator Michael Cota, for example, that he had missed three months child support payments.  Mr. Brockett showed her certified copies of child support records evidencing that the payments were merely late.

The expert witness -  LaDon Richardson, a fire investigator based in Uvalde, Texas, was  called by the defense.  He testified as to his education and many years experience in fire and explosive investigations with the BATF prior to becoming an independent investigator.

He took the jury through the steps a good investigator should take when investigating a fire using the scientific method and a systematic approach.  He had been hired to give his opinion about the investigation of the fire in question, and he gave a blistering critique of Mr. Cota's investigation calling it a "rush to judgment at the original scene."

He said it appeared that Mr. Cota's report indicated that Mr. Pickard was the primary suspect within an hour of the fire.

He gave many examples of why he thought the investigation was faulty.  Mr. Cota had called the house "sparsely furnished" yet photographs showed a lot of burned and damaged furniture as well as other household items.  There had been no key inventory made.  No one could really tell whether the house was locked or unlocked because after the fire there was a big hole where the back door once was.  It appeared as though the financial data regarding Mr. Pickard that Mr. Cota had looked at in his investigation was old.  There was no attempt to take finger prints off of the knob on the water heater.  There was no no attempt to take finger prints off of the gasoline can found in the house or examine it for trace evidence.  There was a fire-damaged flintlock pistol Mr. Richardson found on the mantel which did not appear previously in any of the reports or photographs.  And there were other suspects that should have been more thoroughly investigated.

Mr. Richardson said that the volume of gasoline at the scene suggested to him the possibility of an intentional but premature ignition.  In other words, the person who started it intended to start a fire, but it actually may have gotten started accidentally.  In any event, there was so much gasoline at the scene that the person who started it may have gotten contaminated with gasoline and possibly burned.  Suspects should have been examined immediately.  Emergency room visits and ambulance runs should have been investigated.

"It was not an objective investigation in my opinion."  "Red flags are not evidence."

Lessie Neal Griffen Pickard -  The prosecution called Ms. Pickard, but her attorney initiated a hearing outside the earshot of the jury about her testimony.  Her attorney reminded the parties that she too had been indicted but that the charges were dismissed without prejudice.  So her attorney announced that she was going to take the 5th unless she could get full transactional immunity.  However, the order Judge Hyde signed granted her "use immunity" meaning that what she said or anything derived from what she said could not be used against her.

So she took the stand, and Mr. Pier began questioning. But before we knew it the clock struck 5:00, and the fourth day ended.

Day Five - 5/2/08

Day five began with Mr. Pier continuing his direct examination of Ms. Pickard.  A summary of the day's testimony follows.

Lessie Pickard, continued -- She had lived with Mr. Pickard at the Heather house, but she made the decision to move out because of a relationship issue -- having once been married to an alcoholic, she didn't like to take second chair to something else.  She explained that   Mr. Pickard's obsession with golf placed her in that undesirable status.

She moved out on Memorial Day 2005, roughly three weeks before the fire, and she returned from time to time when Mr. Pickard was home to pick up things.  Among her things remaining at the house when it burned was some furniture -- a chest and a dresser.  And some of her son's clothes were still there.

At some point she became reacquainted with a friend she had known in high school, and they began dating.  He gave her an engagement ring, and they planned to take a trip together to Mexico on July 4, 2005.  She ultimately broke off the engagement but still planned to take the trip to Mexico with him.

She had planned to be out of town around the time of the fire but her trip was canceled.  She testified that it was canceled on Monday or Tuesday the week of the fire (the fire was early Tuesday morning).  However Mr. Pier showed her a transcript of her deposition in the civil case in which she had said it was Thursday or Friday the previous week when the trip got canceled.  So unless the defense produces some evidence about this we will be left not knowing when the trip actually got canceled.

She was asked to tell when she learned of the fire.  She got a call from Mr. Pickard around 4:00 a.m. who told her the house was on fire.  She got dressed and arrived at the scene around 4:30.  There was a lot of commotion with police, firefighters and neighbors all around.  She got teary eyed as she spoke as if the emotion of the moment replayed in her mind as she retold the story.  She spoke with Mr. Pickard's daughter at the scene and called Mr. Pickard to describe what was happening.

Mr. Pier showed her phone records which showed she also phoned the old boyfriend in the early hours on the morning of the fire.  Why did she call the old boyfriend?  To tell him the house was on fire.  Was he still important to her?  No, Bob was.  Why did she call him before calling her her son or daughter?  Because she was suspicious of him.  He did not like her going back to the house to get her things.  "He  did not like the house.  He was intimidated by that house."

She testified that the doors were often left unlocked, however, Mr. Pier had her look at her statement to USAA in which she reportedly said that the doors were always secured and locked.  She did not recall that.

Mr. Pier read her remarks in the initial investigator's report in which she called the place "a big empty house."  She responded on the stand that "it was a big empty house when Bob wasn't there."

When Mr. Pier passed the witness, Mr. Brockett reserved his questioning until he presented his case.  So she will probably be back on the stand after the prosecution rests.

The Accountant -- The prosecution called Ronald Armbruster, an accountant and tax preparer.  He had prepared Lessie's taxes in prior years, and she had referred Mr. Pickard to him.  Mr. Pickard came to him in the fall of 2005 for help with a problem -- it had been many years since he had a filed a tax return.

Mr. Armbruster prepared returns for Mr. Pickard for the years 2000 through 2005 and testified that Mr. Pickard's annual income during those years was in excess of $100,000.  They only went back to 2000 because, Mr. Armbruster explained, the IRS operates under a memorandum restricting them from pursuing returns older than six years without a specific directive.

On cross examination Mr. Pickard's 2005 tax return was entered into evidence which showed a total income for that year of $191,622 and an adjusted gross income of $176,200.

Mr. Armbruster referred Mr. Pickard to another accountant to assist in working out a payment plan for the tax, penalty and interest he owed the IRS.

The Taxpayer Advocate -- Judy Johnson is an accountant specializing in helping people work out their problems with the IRS.  Having been referred by Mr. Armbruster, Mr. Pickard came to her in October of 2006 for help in working out his tax problem.  She helped Mr. Pickard work out a payment plan to satisfy his tax liability which exceeded $300,000.

On cross examination she testified that Mr. Pickard's problem was garden variety as she works full time helping people with that exact same problem.  Self employed people are not subject to any withholding as employed people are, and many self employed people neglect to file their returns finding themselves in the same situation as Mr. Pickard, she said.

Mr. Pickard's problems were unique only in that he had such a high income and high expenses which included her fee and the mortgage payments on the Heather house.  [No mention of how Mr. Brockett's fee fit into the equation.]

It is her understanding that an anonymous tipster reported Mr. Pickard to the IRS.  She sent a FOIA request to find out who, but the IRS apparently denied that request.  Mr. Brockett tried to enter the FOIA request into evidence, but following Mr. Pier's objection and a brief conference with the judge, the matter did not come up again.

Day five of the trial ended early as one of the jurors had a long drive to make.  And the trial should resume on Monday, May 5 at which the prosecutor is expected to rest.

Day Six - 5/5/08

This Monday morning at court started with the prosecution about to rest its case.  With the jury out of the room, the defendant's attorney, Mr. Hal Brockett, made a motion for a directed verdict stating that there had been no evidence that Mr. Pickard started the fire or that he acted with anyone else for the common purpose of starting the fire.  Judge Hyde wanted to look at the cases cited in the motion, and later in the day he made a formal ruling denying the motion.

When the jury was brought into the courtroom to begin the trial day Mr. Aaron Pier rested the State's case.  And Mr. Brockett called his additional witnesses. Remember that the first defense witness was LaDon Richardson, the fire and explosive expert witness who testified out of sequence last week.

The Roofer -- And on this sixth day Mr. Brockett called a roofer who had made an examination of the roof at the Heather house in May of 2005, a month or so before the fire.  One repair would cost around $350 - $400.  But he couldn't make any further estimates because the roof was too steep to walk on.  In any event, the roofer testified that in his opinion that the house did not need new roof.

The Realtor -- A realtor testified that Mr. Pickard spoke with him in 2004 about listing the house for sale.  He did not actually look at the house but testified that if the house were in good shape it could be listed for around $300,000.

The Building Official -- the Building Official for the City Of Midland testified that letters had been sent to Mr. Pickard notifying him that he must either remove or repair the house.  Failing to do that would allow the Building Official to call a hearing before the City Council and seek an order allowing the city to place a lien on the house for the cost of demolition.  As of the time of trial there had been no hearing before City Council on the matter.

The Defendant'sMom -- Mr. Pickard's 83 year old mother was called to the stand.  She testified that she had two children, a son (the defendant) and a daughter.  The mom is self employed with a boot making business in Raymondville, Texas, and she works as a consultant for Armstrong Ranch.  She testified that she has liquid assets of around a million dollars and that the defendant's dad owns 400 to 500 acres of land in North Texas that is currently about to be condemned for the building of a dam.  The initial offer for that land was $2,000 per acre.

She testified that she had loaned both the daughter and Mr. Pickard money on occasion. She loaned Mr. Pickard money on two occasions:  once in the 90's for $20,000 and once in 2004 for $28,000.  There was no promissory note or collateral for these loans, and she testified that she didn't expect repayment and forgave these loans as annual gifts in amounts within the gift limits of the tax rules.  Did she ever tell Mr. Pickard that he couldn't come to her any more for money?  "No."

She testified that after Mr. Pickard's divorce he needed furniture, so she gave him some, including a bed and two dressers that she got from her mother.  The furniture had been in storage and had no sentimental value, she testified.

Photos of the two dressers and the bed had been introduced into evidence previously as items that Mr. Pickard had moved to the poker room before the fire, and they were supposed to support the theory that he moved certain valuable items from the house to keep them from being burned.

Please recall that there was previous testimony that Mr. Pickard had taken the furniture to the poker room so that Mr. Shelly could show it to refinishers for repair estimates as Mr. Pickard was out of town on business so much of the time.  The photos introduced by the prosecution showed the front view only, and the furniture pieces looked like they were in very good shape.  However, new photos were introduced of different views of the furniture, and they showed that the furniture was far from perfect.  There were water rings, stains, scratches and other damage.  And the wood inside the drawers looked damaged too, and the furniture did indeed look to be in need of extensive cosmetic repair.

Another item that had been taken from the Heather house to the poker room was a framed map of what they called the "Armstrong Ranch."  Mr. Pickard's mom testified that there are stacks of those things at the Armstrong Ranch and that they are given to anyone who visits there.  Those things had no intrinsic or sentimental value.

The Country Club -- An employee with Green Tree Country Club testified that it is her job to send letters to delinquent members that they are in arrears with their payments.  No such letter had been sent to Mr. Pickard in 2004 or 2005.  She testified that Mr. Pickard ultimately sold his membership for somewhere between $1,000 and $1,500.

Mr. Pickard's boss -- The CEO of the company for which Mr. Pickard sells prosthetic knee and hip replacements testified that Mr. Pickard earns a commission of 25% of collected sums.  He testified that Mr. Pickard's work was excellent, his financial performance was extremely good, and in the spring and summer of 2005 his job was very secure.

The Amarillo RN  -- Mr. Pickard was in Amarillo when the fire occurred, and the night before the fire he had dinner with a nurse and her husband.  She testified that she was scheduled to assist the next morning in surgery involving one of the prosthetic devices he sold.  When she saw him at 7:15 the next morning he was distraught -- he had learned a few hours earlier that his house had burned.  She told him to go home, but he said he didn't know what he could do there.

Lessie Pickard -- The defense called Lessie Pickard back onto the stand.  Previous testimony revealed that she had originally planned to be in Plano at the time of the fire but that her trip had been canceled.  And the previous testimony left some confusion about when she learned of that cancellation.  So with her back on the stand, Mr. Brockett showed her hard copies of an email notification she received about the trip cancellation.  It was dated June 17 (Friday), but she testified that she was so busy that day that she didn't look at it until June 20, the Monday before the fire.  And she believes it was Monday morning when she told Mr. Brockett about the trip cancellation.

There was testimony about the furniture she took from the Heather house when she moved out.  She took a love seat and two other items.  Mr. Pickard wanted them back so she returned them.  The love seat ended up at the poker room, and the two other items were burned in the fire.

And that ex-boyfriend came up again.   She said he came to see her at her house on the Sunday before the fire.  She said she "had words" with him about her getting back with Mr. Pickard, and she told him to leave.  He appeared angry, and when he left she saw two red gas cans in the back of his pickup.

The Fire Investigator -- Michael Cota was recalled to the stand after lunch, and Mr. Brockett quizzed him extensively about his previous testimony.  Mr. Brockett pointed out two inconsistencies between Mr. Cota's previous testimony and his current testimony and reminded Mr. Cota that he had used similar inconsistencies against Mr. Pickard in reaching his conclusions.

Mr. Cota testified that he didn't notice the condition of Mr. Pickard's furniture in the poker room.  And Mr. Brockett pointed out that it would seem reasonable for an investigator to have examined the condition of the furniture in order to evaluate the validity of Mr. Pickard's stated reason for placing them there.

On cross examination by Mr. Pier, Mr. Cota said that he felt that he didn't have enough time at the poker room because he felt rushed and in danger there.  On redirect Mr. Brockett had Mr. Cota concede that he was a certified peace officer and could have obtained a search warrant and spent as much time with as many police officers as necessary to examine the poker room contents.

Bob Pickard -- As the last witness of the day, the defendant, Mr. Robert Pickard, took the stand.  Did he start the fire?  "No."  Did he cause, solicit or entice anyone to start the fire? "No." Did he know who did?  "No."

Much of what he said had already been introduced into the story by someone or another.  And he testified that he and his previous wife bought the house, and in the 1996 divorce they were each awarded a percentage of the house.  He moved out but bought her interest because he loved the house and wanted the kids to feel comfortable.  The house was empty when he returned, and refurnishing the house was an on going process.  He got furniture from various places, including some from his mom.  When Lessie moved in she brought her own furniture along with her two children.

Due to a change in ownership of the company for which he worked he became unemployed for a while.  His income dropped in 2004, and he got behind in the mortgage, child support and credit card payments.

All of that changed when he found the new job in 2004.  His tax return for 2005 showed an income of $191,000 but didn't reflect bonuses which would be paid in 2006.

He loved playing golf.  One of his golf buddies, Ernie Shelly, had the idea of starting the poker club, so Mr. Shelly rented a room where a group calling themselves the Piranha Club could play poker.  Someone could buy into a game for $200 to $500, but Mr. Pickard never had any more gambling debt than he could pay.  And he testified that he had no great gambling losses.  He and others brought furniture and decorations to the room to furnish it.  And later photos of the room revealed it to be quite nicely furnished.

Lessie didn't like for him to spend so much time on the golf course, and she moved out in May of 2005.  She was still in the moving process when he heard she was seeing another guy, so he had the locks changed and would let her move things out only when he was there.

But, he began to reconsider his breakup with Lessie and began seeing her again.  The Sunday before the fire they ate out, and she gave him the impression that their relationship still had a chance.  He didn't recall whether Lessie told him that her trip had been canceled.

He next saw Lessie on Monday morning before the fire for a five or ten minute visit at the hospital where she worked.   He thinks she did mention that her trip had been canceled, but he decided to go ahead and take the dogs to the kennel anyway.

So he drove to Amarillo, and at 4:00 am the next morning got that call from his daughter about the fire.  He testified that he was in shock.  He was dumbstruck.  He called a neighbor.  He called Lessie and never went back to bed.  He attended the surgery in Amarillo that morning then headed home and began the series of interviews with investigators that eventually resulted in the indictment.

(Update as of 5/6/08 6:20 am:  After reading Bob Campbell's newspaper account I realized that I had misspelled Mr. Cota's name.  That has been corrected in each place it occurred.)

Day Seven - 5/6/08

Trial day seven began with a continuation of defense attorney Hal Brockett's direct examination of the defendant, Robert Pickard.

Mr. Brockett showed Mr. Pickard and the jury numerous defense exhibit photographs of the interior of the Heather house and the garage taken after the fire.  There was a roll top desk, there was a dining room table with chairs, there was a buffet, there were burned out picture frames, there was the flintlock pistol, there were power tools in the garage, all shown in an effort to dispel any notion that the house was not sparsely furnished or that there was nothing of value remaining at the house at the time of the fire.

He testified he had made some furniture that was still in the house at the time of the fire, specifically, an entertainment center with shelves and an automatic light and a coffee table with a secret compartment.  Other items in the house were photos of his children, a caricature of one of his daughters drawn at a trip to Six Flags, a copy of "Lonesome Dove" signed by Larry McMurtry, polo trophies, awards, and a photo taken at a very good friend's wedding who is now deceased.

Mr. and Mrs. Pickard had done some remodeling on the house which included repainting some of the walls and putting tile on some of the floors.  It was an ongoing project.  There were some repairs needed to the plumbing, but he had a home warranty that would cover that.

Regarding the tax situation, he testified that his ex-wife's mother had prepared his taxes before the divorce, and after the divorce that service would no longer be available to him.  Subsequent to the divorce he neglected to file his tax returns, and that neglect continued for several years.  (On cross examination he admitted that he had not volunteered that information initially to investigators.)

There were questions about his child support payments, and he testified about the missed payments during 2004 but that he eventually caught up.  The support payment amount dropped when his oldest daughter reached 18 and graduated from high school in 2005.

Mr. Pickard said that he got a derogatory text message from Mrs. Pickard's ex-boyfriend after the fire, but apparently the text was no longer available as no hard copy was introduced into evidence.  (On cross examination he said he didn't tell the Fire Department or USAA about that text message.)

The insurance investigator, Richard Carlson, previously testified as to the discrepancy in Mr. Pickard's statements to him about how he delivered the dogs to the kennel the day before the fire.  Mr. Brockett had Mr. Pickard read from the Carlson interview transcript, and Mr. Pickard had given an answer about it,  then according to the transcript, stated that he really didn't remember.

Mr. Pickard testified that he and Mr. Shelly were the only ones who knew about some Mr. Pickard's furniture being moved to the poker room.  However, Mr. Pickard volunteered that information to the investigators.

The reason given for moving the furniture to the poker room was that Mr. Shelly could show it to a furniture refinisher.  And photos of the furniture showed that all the pieces had cosmetic damage to some degree.  Mr. Pickard testified, however, that his sister works at a museum, and she advised him not to have them refinished.  So he never did.

Mr. Pickard had some rifles and shotguns stored in the garage along with some woodworking equipment.  And there were orthopedic tools in the garage that could be used if necessary, in orthopedic procedures.

He had several boxes of ammunition in the garage stored in nice cases that had previously been used for orthopedic equipment.  He always kept them snapped closed, but he testified that when he inspected them after the fire he found that one had been opened and was wet on the inside.  He reported that to the insurance company adjuster who told him to report it to the police.   A police officer investigated but did not take any finger prints.

On cross examination Mr. Arron Pier pointed again to the inconsistency in the statements Mr. Pickard gave to the various investigators about how the dogs got to the kennel the day before the fire.

And there were questions about Mr. Pickard's finances.  He testified that his income dropped in 2004, but that he still probably had income of over $100,000 that year.  The amount he borrowed from his mom in 2004 was "$40,000 maybe $30,000" which he borrowed to pay bills.  He had two IRAs with a combined balance of around $12,000, he received around $500 to $600 per month from gas well royalties, and he owned around 25% of the Pickard Partnership which owned real estate.

His liabilities as of the time of the fire included $8,000 owed on his Discover card, $13,000 to $14,000 owed on his Visa card, and $76,000 that he knew he owed to the IRS for a total liability of around $100,000.  When asked if he thought that indicated a healthy financial condition he responded that his family assets should be taken into consideration.

Both the prosecution and the defense closed their cases around 2:10 pm, and Judge Hyde sent the jury into the jury room to contemplate whether they wanted to continue today and stay until they either reached a verdict or until the judge allowed them to leave, or they could or go home and resume tomorrow, May 7.  The jury elected to go home and start again tomorrow.

Once the jury departed Mr. Brockett restated his motion for an instructed verdict on the basis that there had been no evidence connecting the defendant with the starting of the fire and that the evidence wasn't legally sufficient to send to the jury.  Even under the law of parties, he said, there was no evidence that Mr. Pickard aided, assisted, solicited or encouraged anyone to commit the offense.

Judge Hyde had researched some cases and cited a holding that the state can prove its case with circumstantial evidence.  The motion was denied.

Each side will be given 30 or 45 minutes for a closing argument, a jury charge will be read, and the jury will be sent to deliberate the fate of Mr. Robert Marshall Pickard.

Day Eight - 5/7/08

Both sides closed yesterday, and trial day eight began with Judge Hyde reading the Jury Charge.  (See Jury Charge.pdf.)

Each side was supposed to get around 1/2 hour for a closing argument, however the previous day Mr. Brockett had requested 45 minutes.  Judge Hyde told them he had already told the jury they would each get 1/2 hour but that he would give them time reminders but would not be rigid about it.  And both sides would have equal time.  The prosecution would start, the defense would give its statement, then the prosecution would get a rebuttal opportunity.

Assistant District Attorney Brooke Hendricks   -- Ms. Hendricks started the closing argument for the prosecution.  She went over the charges pointing out that there was no dispute that it was an intentionally set fire in a habitation but that the law did not require that they know who actually started the fire.

She reminded the jury of testimony that the dogs had been boarded for the first time the day before the trial, that heirlooms had been removed from the house prior to the fire, and although the state did not have to prove motive, the defendant had a financial motive for burning the house.  She spoke for around five minutes.

Defense Attorney Hal Brockett  -- Mr. Brockett began his closing argument for the defense.  He reminded the jury that Mr. Pickard is presumed innocent, that each element of the charge must be proved, and that being arrested does not mean a person is guilty.

He spoke for around 45 minutes and addressed the elements of prosecution's case: the taking of the dogs to the kennel, the taking of the furniture to the poker room, Mr. Picard's financial situation, and the inconsistent statements.  And he reminded the jury of the explanations for each one.

The dogs had been put in the kennel because Lessie was planning to be out of town and couldn't care for them while Mr. Pickard was gone.  And she didn't want them in her yard.

The pieces of furniture had been taken to the poker room so that Mr. Shelly could show them to a refinisher.  Mr. Brockett reminded the jury of the photos showing the damaged condition of the furniture.  The other things taken to the poker had little value, sentimental or otherwise.

Mr. Brockett asked "who said it was sentimental?"  The investigator and insurance company had deemed it sentimental.  By comparison, the items moved to the poker room represented 2% of Mr. Pickard's possessions when compared with the items claimed to be lost on the insurance form.  Among the things still at the house were Mr. Pickard's gun collection, the medical tools for his job and family photos.  "You tell me that makes any logical sense that Bob planned, aided and abetted this offense."

Mr. Brockett reminded the jury that Mr. Pickard had a gross income in 2005 of $191,000 and an adjusted gross of $174,000.  The IRS liability of $300,000 had not been established at the time of the fire.

Regarding the loans Mr. Pickard's mom had made to him, Mr. Brockett wanted the jury to understand that that is what parents do.  He told the jury of borrowing money from his own father to buy a house, and his father now "lies in Resthaven unpaid," he said pointing in the direction of the cemetery.

Regarding the inconsistent statements the investigators said Mr. Pickard made, Mr. Brockett called them nit picking.  He told the jury that the transcripts for all the investigators' interviews totaled 400 pages.  He looked at the jury and told them that if they had been subjected to that much questioning he could go over their interviews, and "I could pick you apart."

He again addressed the furniture that had been taken to the poker room and contrasted the photos that the fire investigator had taken, which didn't show any damage, with the ones the defense had which shows numerous cosmetic flaws.  He said that MFD investigator Cota had not been objective and was cheating.

Mr. Brockett reminded the jury of the other potential suspects in the case and pointed out that the investigation relied only on a cell phone record to eliminate Mrs. Pickard's ex-boyfriend as a suspect.

He ended his summation by asking the jury to enforce the law and find the defendant guilty only if they were convinced beyond a reasonable doubt.  He asked the jurors to ask any one among them who thought Mr. Pickard was guilty, "What evidence do you have that Bob aided assisted, or promoted the starting of this fire?  It's time for this nightmare to be over."

Assistant District Attorney Aaron Pier  -  Mr. Pier provided the rebuttal argument for the prosecution.

"We've got better things to do than prosecute an innocent man," he began.  But did Mr. Cota cheat?  He reminded the jury that defense witness LaDon Richardson had testified that he thought the fire may have been started for revenge or that the ignition may have been by accident because the gasoline can had been left behind.  "Let's look at revenge."

Mr. Pier spoke of the various potential suspects starting with the daughter's ex-boyfriend.  The relationship had been on and off, so revenge didn't seem likely.  And if a teenager had started the fire might not some of the guns or liquor bottles be missing?  The ex-wife had no motive, he said.  And Mr. Cota and LaDon Richardson had both agreed that the guilty person would probably smell like gasoline.  The ex-wife's daughters had testified of no such smell when she woke them the morning of the fire.

Lessie Pickard's ex-boyfriend had no real motive either.  His trip with her to Mexico was still on as of the time of the fire, so he must have thought he at least had a chance with her.  And he was eliminated as a suspect because his cell phone records showed him to be on the phone at another location around the time of the fire.  To whom was he talking?  Lessie Pickard.  Mr. Pier reminded the jury of her testimony that she called him the morning of the fire.

Regarding the inconsistent statements, Mr. Pier said that they indicated that Mr. Pickard told people what he wanted them to believe at the time he told them.

Apparently referring to the defense explanations for each of the things that pointed to Mr. Pickard's guilt, Mr. Pier made an analogy with the lottery.  You can get one number which doesn't mean anything.  A second number means a little more, three and there might be some money.  But to get all of them requires a tremendous amount of luck.   And Mr. Pickard must be the luckiest person in the world to have all these things line up or else he's responsible for the fire.

Mr. Pier pointed to the financial evidence and reminded the jury that Mr. Pickard had the dwelling insured for $308,000 and that he would have come out much better to get a payoff from an insurance claim than he would by selling the house.  He knew he owed money to the IRS, and the IRS needs cash and not an interest in the family partnership.

Mr. Pier held up the remains of the gas can that had been found at the scene of the fire and asked the jury to look at it and judge for themselves whether any prints or trace evidence could have been gotten off of it.

Mr. Pickard had testified about a derogatory text message he had received from Lessie Pickard's ex-boyfriend after the fire.  Mr. Pier held up a cell phone record that had been introduced into evidence and invited the jury to look at it themselves to try to find any record of a text message.

Mr. Pier reminded the jury that the defense expert LaDon Richardson said that others should have been investigated specifically mentioning Mr. Shelly, the poker buddy, who Mr. Richardson said had been suspected of arson in a previous case.  Mr. Pier reminded the jury that Mr. Shelly refused to cooperate with investigators, then he paused to let that sink in.

Mr. Shelly in his taped testimony had also said that Mr. Pickard was a babbling idiot when they spoke on the morning of the fire.  Mr. Pier reminded the jury of that and said that Mr. Shelly didn't know that another witness would say that Mr. Pickard was calm.

Mr. Pier spoke for around 33 minutes and ended his statement by telling the jury that they need to put everything together, and he asked, "Is he the luckiest person in the world?"

So the trial ended, and at 10:30 a.m. the jury was sent into the jury room to deliberate.

Updated 5:58 p.m.  The jury reached a verdict at 5:35 p.m.  They found Mr. Pickard NOT GUILTY!

Pictured:  From our left to right: Hal Brockett, Robert Pickard and Lessie Pickard.

The Odessa Bible Case

The Odessa American tells us that following the E.C.I.S.D. trustees meeting on 1/22/08 the trustees met privately with the ACLU lawyers about the recent mediation in the case of Moreno vs. Ector County Independent School District, et al.  See OA article.

The case was brought by ACLU, ACLU of Texas and People for the American Way Foundation along with some Ector County residents.  Lawyers from Jenner & Block are making the case for the plaintiffs.  Liberty Legal Institute is providing the defense.

The issue is whether the students in the Bible class are taught "The Bible," like a Sunday school class, or about the Bible, like a history or literature class.

You can find a link to the plaintiffs' complaint at the ACLU site.  However, and this is somewhat annoying, you can't get the defendants' answer there.  Until now the defendant's answer was not available on line without having to pay for it.  So as a service to readers, you can download it here.  Click to Download defendants_answer.pdf 

If anyone is interested in this case I recommend reading both the complaint and the answer.

The main concern of the plaintiffs is summed up on page 2 of the complaint, as follows:

Public schools may constitutionally offer courses about the Bible "when presented objectively as part of a secular program of education".  Sch. Dist.  Abington School Dist. v. Schempp, 374   U.S. 203, 225 (1963 ). This action seeks declaratory and injunctive relief pursuant to 42 U.S.C. 1983 against the Defendants, who have officially authorized and are now offering and teaching in ECISD public high schools a course of instruction on the Bible (the Bible courses) that is not presented objectively but instead actively promotes a particular religious viewpoint to public school students in a manner prohibited by the Establishment Clause of the First Amendment. The Defendants adopted the Bible Course with the primary purpose of advancing religion generally and a specific religious interpretation of the Bible particularly, and the Course has the primary effect of promoting, advancing, and endorsing religion generally and a particular set of religious beliefs specifically. The Bible Course does not adhere to the constitutional standard of objectivity, but instead presents the Bible from a singular religious point of view that knight be appropriate for Sunday schools but has no place in public schools.

Both parties rely on dicta from Abington, (alternate link), as follows:

In addition, it might well be said that one's education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment.

So it's a fact issue.  Were the students taught the Bible course pursuant to Supreme Court guidelines?

The ACLU complaint alleges that the ECISD used the National Council on Bible Curriculum in Public Schools.  NCBCPS gets a lot of criticism for their Bible curriculum.  Mark Chancey, SMU religious studies professor, is a vocal critic, and here's an article in which he lays out some of his concerns.  To what extent the ECISD Bible course relied on the NCBCPS isn't clear from the Defendant's answer, and if the case goes to trial then witnesses will provide that evidence.

The parties have now gone through mediation, and CBS7 produces what it purports to be the contract points (see).  Chief among them would be the appointment of an 18 member committee of which 16 would be needed to approve a curriculum.   Assuming 16 committee members could agree on a curriculum, it would be strictly monitored.

I starting writing this post long before the settlement proposal was made public, and here was my early prediction:

But it doesn't cost anything to speculate, so here's an early prediction.  The mediation will probably result in an agreement between the parties whereby the ECISD keeps a Bible course but agrees to allow close monitoring so that course remains "about the Bible" and nothing more.  And ECISD ends up paying the ACLU legal fees.   Whatever high minded motives a lawyer might claim, he/she is still in business for the money.

Well, the part about the legal fees was wrong, or maybe that's yet to come.

So that brings us up to date.  Now we sit back and wait for a decision of the ECISD trustees of whether to accept or reject the proposal.

State of Texas vs. Robert Marshall Pickard -- an arson trial

This trial has been postponed so many times it makes the head spin.  The original Grand Jury indictment was in late 2005, and it accused Robert Marshall Pickard and Leslie Neal Griffen of igniting a combustible material with the intent to damage or destroy a habitation owned by Mr. Pickard at 5000 Heather Rd., Midland, Texas.  Here's the local news report from back then.  The charges against Ms. Griffen were later dismissed.

Mr. Pickard was originally represented by C. H. (Hal) Brockett and David G. Rogers.

So far the most interesting development of the case was the motion filed on behalf of Mr. Marshall by Mr. Rogers, on 12/05/05.  The "Motion to Restrict Publicity" sought a restriction on news media from taking photos of the defendant in the courthouse or at anytime while he was transported to the courtroom.  And it sought to restrict news media from reporting in detail the evidence obtained during pretrial hearings.  And the motion requested a court order that no person, police officer, witness, court participant or counsel comment to the media on any matter concerning the case during pretrial or trial.

At the March 14, 2006, hearing on that motion Judge Hyde pointed out that public trials are a not only a Constitutional right but are fundamental to a fair trail.  Mr. Rogers replied by telling the court that shortly after the fire an individual on the prosecution's side of the case held a press conference divulging details about the case prejudicial to the defendant.  The news report linked above probably resulted from that press conference.  Anyway, the judge admonished the prosecutor pointing to  Rule 3.07- Trial Publicity in the Texas Disciplinary Rules of Professional Conduct.

The trial is scheduled to start on January 14, 2008, In the 238th Judicial District Court, and if this case is as interesting as I think it will be you will be able to read about it on these pages.

Updated 1/14/08, 9:50 a.m.:  Case continued.  Wouldn't you know it?  The case has been continued yet again.  A state's witness had a medical emergency and wouldn't be able to attend, so Judge Hyde has set a hearing for this Thursday afternoon to set a new trial date.  He said that once a new date is set then if that witness is unable to attend on that new date the case will go to trial anyway.

Updated.  The trial finally started on 4/28/08.  Click for daily trial summaries.

Kitzmiller v. Dover -- the intelligent design case

It started with a couple of school board members in Dover, PA, who had strong beliefs that a supreme being created human and all other life on earth and who were disturbed at the references to Charles Darwin's theory of evolution in the biology text books.

The result was the U.S. District Court case of Kitzmiller v. Dover [PDF].  And last week NOVA broadcast an excellent show titled Judgment Day, Intelligent Design on Trial on PBS which was a Cliff's Notes version of the issue of whether "intelligent design" was a scientific theory or simply a religious argument, specifically,  "creationism" in disguise.

Creationism had already been tossed out of public schools by the Supreme Court in the 1987 case of Edwards v. Aguillard which held that a Louisiana law prohibiting the teaching of evolution unless accompanied by creationism violated the first amendment ("Congress shall make no law respecting an establishment of religion").  So the issue in Kitzmiller was merely whether or not the school district was attempting to inject creationism into the school curriculum by the requirement that teachers read a prepared statement to the students.

That statement involved Of Pandas and People which was a book proposed as an alternative to evolution, copies of which were given anonymously to the Dover school.  The school board rejected Pandas as a text book, but they reached a compromise by which science teachers were required to read a statement to the ninth grade biology students.   Read the whole statement in the judge's order in Kitzmiller v. Dover [PDF].  The statement basically instructed students that Darwin's theory was not fact, gaps existed in the Darwin's theory, the Intelligent Design theory was an explanation for the origins of life that differed from Darwin's, and Of Pandas and People would be available in the library for interested students.

Darwin's theory is often diagrammed as a tree of life starting with simple life forms at the base evolving into multiple branches representing different life forms.  Of Pandas and People presented the idea that life was created suddenly and at various times for each species.  So instead of a tree, there are straight, vertical, parallel lines.  Furthermore, living beings are so irreducibly complex that they couldn't possibly have evolved from some lower life form according to the ID theory.  Well, it turns out the book had been around awhile, and evidence presented at the Kitzmiller trial showed that previous versions had used the words "creationism" and "creationists," but after Edwards those words were changed to some variation of "intelligent design."  In fact, there was one incident where the word "creationists" was changed to "cdesign proponentsists."

An example of the irreducible complexity given at trial was the bacterial flagellum which has a very unique motor that spins its little tail giving it propulsion.   It's  such a complex little engine and had so many parts that it couldn't operate if any of the parts were not present.  Therefore, it couldn't have evolved from something else, the ID theory goes.

But wait a minute.  There's another tiny little critter called the yersinia pestis which has a thing similar to that engine but lacks some of the parts.  And in that instance the tail serves as an injection device.  So the effort to disprove Darwin's theory failed.

An expert witness provided an amusing example of how some things aren't as irreducibly complex as they might seem.  The ID proponents sometimes use the mousetrap as an example of a device that couldn't function if any of the parts were missing and analogize this to a living creature that couldn't exist without its parts and thus couldn't have evolved.  So the witness came to court one day with a mousetrap as a tie clasp.  Enough parts were missing that it couldn't possibly serve as a mousetrap.  But as the witness said, it worked perfectly, though inelegantly, as a tie clasp.  Score one more for the Darwinists.

But religious dogma is actually quite flexible, albeit slow to adapt.  Originally religions explained gaps in our knowledge of how things worked.  They explained the unexplainable.  For example, the sun, the tide, the stars, etc., were controlled by the gods.   And as scientific explanations became accepted, religion narrowed its focus to those things that still couldn't be explained.  And at this point in time science cannot explain how life originally began.

How did life begin?  Here's what I would tell the Dover ninth graders: We simply aren't smart enough and don't have enough information to know.  And here's a story to go with it.  Each morning I take dog food out of a big bag and place it in a container for the dog to eat.  The dog can see me do that, and in his own mind he may have some explanation for it.  But he doesn't have the brain power or the information to figure out the manufacturing process, the distribution channel, or the retail transaction.  Humans understand this, but the dog may think I'm some sort of god.  So in this regard we are like dogs.  We simply aren't smart enough, and more to the point, we don't yet know enough to explain how life began.  For the creationists it's obvious, God did it.  For the rest of us it's still an unknown.

Darwin's theory has been tested over and over again and provides a logical explanation for natural phenomena.  And creationism?  Well, to believe that you just have to have faith.  And the judge in Kitzmiller wisely decided to let the kiddies learn science first.

Updated 11/20/07:  Joe Hathaway emailed a link to Experts find jawbone of pre-human great ape in Kenya.  Excerpt:

NAIROBI – Researchers unveiled a 10-million-year-old jaw bone on Tuesday they believe belonged to a new species of great ape that could be the last common ancestor of gorillas, chimpanzees and humans. ...

The species – somewhere between the size of a female gorilla and a female orangutan – may prove to be the 'missing link', the key step that split the evolutionary chains of humans and other primates, Kenyan scientists said.

'Based on this particular discovery, we can comfortably say we are approaching the point at which we can pin down the so-called missing link,' Frederick Manthi, senior research scientist at the National Museums of Kenya, told reporters.

Once life is discovered on Mars or another planet then we will really be in for an educational treat.

Updated 11/21/07:  In a comment, below, Les reminds us of Moreno vs. ECISD which is the ACLU sponsored case in which several Ector County taxpayers are suing the Ector County Independent School District and the district trustees over the decision by the school district trustees to place a Bible course in the school curriculum.  See the original complaint here (PDF).  Something to keep in mind is that, according to the NOVA program,  the Kitzmiller v. Dover plaintiffs' lawyers were awarded a million dollars in fees for which the Dover school district would be liable.

Court Watch Alert - the Aldo Pacheco trial

According to the allegations, he tried to kill three people.  He succeeded with the first two but botched the third, which happened to be himself.  Midland and Odessa residents will recall the incident:

The picture for Midland police was grim Jan. 16 as they found Wiggs lying on the sidewalk of a Midland home, with shotgun injuries to the chest and right arm, according to police reports.

Wiggs died on the way to the hospital as Aldo Pacheco barricaded himself in the house with Barbara Pacheco, officials reported.

After Aldo Pacheco released the couple’s 2-year-old son to negotiators, SWAT team officers entered the home to find Barbara Pacheco dead from gunshot wounds to the throat and stomach, and Aldo suffering from a self-inflicted gunshot wound to the face.  Source .

Prosecutors have elected, wisely, not to seek the death penalty.  The trial date is set for Monday, November 13, 2006 in Midland.

Update 11/16/06:  Mr. Pacheco's testimony:  First killing, self defense.  Second killing, accidental.  Attempt to kill self, intentional.   Source.

Update 11/17/06:  Guilty.

Zacharia Moussaoui -- life or death?

The court of public opinion doesn't hold much sway in the case of Zacharia Moussaoui.   But let's assume that it does and that we are the jury deciding whether to give him life in prison or death by lethal injection.

The death sentence is the appropriate penalty in many cases, and Zach seems to be begging for it.  So let's not let him have it.  My vote goes for the life sentence.

Put him in one of those super-max prisons where he has to stay alone in his cell for 23 hours a day.  And to leave the cell he has to strip down, expose all potential hiding places, open his mouth for inspection, spread his cheeks, etc, etc.  And he's hand/foot cuffed before he has contact with the guards.  Any resistance and he gets popped with a few pepper balls.  If that doesn't work, then ZAP with the Taser.

Having him put to sleep by some needle stick would be very unsatisfying to those of us who watched our tv screens as those planes hit the twin towers that day.

On the other hand, knowing he is subjected daily to some forced humility could be quite satisfying.  There would be no 72 virgins for that boy.  And he would know it.

Updated 5/04/06:  It's official.  Zach got a life sentence. (Actually, I may have misspelled his name above.  Most of the accounts say it's Zacarias Moussaoui.)

MSNBC has had programs showing what life is like in those super max prisons, and it's a bleak existence for the hapless souls who end up there.  And in the next few days the main stream media will probably give us more information about prison life than we ever wanted to know.

But it's perfect for someone like Zach who was probably motivated, like many terrorists, not by expectation of some heavenly reward but by earthly attention and glorification.

So the austere life of a super max prisoner should be a fitting way for Moussaoui to finish out his life.

Eric Hammock wrongful death lawsuit filed

The Fort Worth law firm of Kobs & Haney has issued a press release announcing that they have filed a lawsuit on behalf of clients Kathi Hammock and daughter against Taser International for the wrongful death of Eric Hammock.

Eric Hammock died shortly after being shot multiple times with a Taser in Fort Worth on April 3, 2005.  See my earlier entry titled Eric Jay Hammock: 5/20/1961 - 4/3/2005, R.I.P. for details.

Jeffrey Kobs and Mark Haney apparently represent the plaintiffs.

An earlier news report [sorry, no news link] had said that the cause of Mr. Hammock's death was cocaine intoxication and not the Taser.  I wondered at the time just how anyone could say for sure that cocaine caused his death and that he would have died anyway if he had not been shot with the Tasers.  One might expect a self serving statement from the Tarrant County Medical Examiner's office, but Dr. Nizam Peerwani at least doesn't deny that Tasers played a role.  See Dallas Morning News:

"We can't say Tasers caused the death," said Peerwani, the county's medical examiner since 1979. "Tasers may have played some role.  We are basically saying there's a temporal relationship."

The anecdotal evidence seems to suggest that a human body might be more susceptible of dying from a Taser wound if the person had an intoxicating drug in his/her system.  I'm not condoning illegal drug usage, and I don't use them myself.  But, it shouldn't condemn a person to death at the muzzle end of a Taser gun.

To be continued.

Update: 7/18/05,  2:34 pm -  More about this case and Taser in links below:

- AP article in the 7/18/05 edition of the Midland Reporter-Telegram titled Groups question Taser gun safety after suspects' death.

- FWWeekly article about Tasers titled Torture by Taser.

- AZCentral.com special report on Tasers saying, among other things, "The Arizona Republic, using computer searches, autopsy reports, police reports, media reports and Taser's own records, has identified 132 cases in the United States and Canada of death following a police Taser strike since September 1999."

State of Texas vs. Theodore L. Jurgensen

[The most recent update is at the end of this post.]

They say that good fences make good neighbors.  If only Theodore L. Jurgensen had a good fence on March 19, 2005, he wouldn't be in the trouble he's in.

He's on trial today in the 238th Judicial District Court in Midland, Texas, for aggravated assault against a peace officer, and this case has a very intriguing fact situation.

Yesterday, in the posted titled  Jury Duty, I described the jury selection process for State v. Jurgensen in which  I was a member of the original jury panel but was struck by one side or the other.  The trial started yesterday afternoon, and as soon as I got free today I scurried to the 238th court room to see what was going on in the Jurgensen trial.  Unfortunately, the complaining witness, Constable Charles "Choc" Harris, along with his mother and fiance had already testified.  But, I was able to see Mr. Jurgensen's testimony.

According to Mr. Jurgensen, Constable "Choc" Harris moved onto the rural property next door with two unruly dogs; a large grey one and a pit bull.   The large grey dog bit Mr. Jurgensen, and both dogs growled and barked at him when he got near the fence.  On the day in question he was disposing of some tumble weeds, and he had to get down on the ground to place a cement block against a gate to prop it open.  And the dogs barked, snarled and snapped at him, and even though they were on the other side of the chain link fence, he was afraid that they might climb over the fence as he had seen them do before.  So he applied some pepper spray to their yapping faces.

Not long after that, Mr. Harris came forward and said, "did you spray my dog?"  Mr. Jurgensen replied, "I sprayed TWO of your dogs."  Mr. Harris responded by jumping over the fence and grabbing Mr. Jurgensen with both hands by the shirt near the neck and said, "YOU'RE UNDER ARREST!"

Jurgensen is a thin, wiry guy of 67 years of age.  He looked to be around 5' 10'' in height, and he testified that he weighs 147 pounds.  I'm guessing that Mr. Harris' weight exceeds 250 pounds, so there was a definite weight class mismatch.

Mr. Jurgensen testified that as Mr. Harris was holding onto his shirt Mr. Jurgensen did a quick flip of his arms that broke Mr. Harris' hold.  Then Mr. Jurgensen performed what he described as a "left front snap kick" to Mr. Harris' crotch.  Mr. Jurgensen pulled his handgun, a Smith & Wesson .357 semi-automatic, and ordered Mr. Harris to his knees.  Mr. Harris pleaded with him to take his finger off of the trigger, and Mr. Jurgensen elevated the muzzle so that it didn't point directly at Mr. Harris.

Mr. Harris wanted to use Mr. Jurgensen's cell phone, and Mr. Jurgensen declined but said "who would you like me to call."  Then he told Mr. Harris "you're disgusting.  Go home."  And that ended the confrontation, at least for the moment.

Enter law enforcement.  Constable Harris called the sheriff's office who sent a deputy out to interview both parties.  The deputy talked to both of them then filed his report.  Back at the office, a decision was made to arrest Mr. Jurgensen.  (There doesn't appear to have been any discussion of charging Mr. Harris for trespassing.)  And on the following Monday, two sheriff's deputies and a five member swat team located Mr. Jurgensen in town, and they arrested him, swat style.

They found the handgun and a knife in the car.  By the way, Mr. Jurgensen has a concealed handgun license.

The handgun was chambered with Speer hollow point bullets, and the prosecutor spent several minutes questioning one of the arresting officers as well as Mr. Jurgensen on that subject.  A hollow point bullet expands when it strikes an object, and the result is a larger wound if it hits flesh plus a reduced likelihood that it would go completely through anything it hit, a wall, for example.  There wasn't any testimony of what kind of bullets were in the gun on the date of the incident at the fence.

After the Judge read the jury instructions, the closing summations by the prosecution, Steve Stallings, and the defense, David Rogers, were brief retellings of the facts of the case, so for me it was a good chance to get some of the blanks filled in.

But there was one thing that struck me, and that was the way the prosecutor, Steve Stallings, handled one of the prosecution exhibits, Mr. Jurgensen's Smith & Wesson .357 semi-automatic handgun.  The handgun had a cable lock on it, and it was probably inoperable.  But, one of the rules of handgun safety is to treat every gun as if it were loaded.  Call me a gun safety nut, but to see Mr. Stallings waving it around with abandon, inadvertently pointing it at the jury and just about everyone else, including me, I couldn't help but think that was awfully curious behavior.  I couldn't take my eyes off it, and it was terribly distracting -- I didn't even hear what he was saying.  If he wanted the jury to regard the handgun as the thing, the one thing, that turned this neighbors' squabble into a serious felony then I would think he would want to treat that gun as he would a live rattlesnake instead of waving it around as a harmless object.  But, that's just me, and I was kicked off the jury in the first place, so it doesn't matter.

Judge John Hyde kept the case moving at a pretty good pace, and while there were some delays, the jury was sent to deliberation in slightly over 24 hours after the trial began.  So as of the time of this writing the jury is either still deliberating or has retired for the day.  I hope to receive a phone call from the court when the jury returns with the verdict, so watch for an update.

UPDATE, Today, 6:30 pm CDT:  The jury had been given a choice of four charges, if they found him guilty.  The most severe, aggravated assault on a peace officer, carried a penalty of probation to 99 years in prison.  The weakest of the four charges was "deadly conduct."  The jury came back around 5:00 pm with a verdict of GUILTY of  "deadly conduct."  The penalty phase of the trial will begin at 9:00 am tomorrow.

UPDATE, 5/11/05, 1:15 pm CDT:  The punishment phase of the trial took place this morning, and the jury came back a little before noon with a verdict for a punishment for the class A misdemeanor of confinement in jail for one year with a fine of $4,000 but with the jail time suspended in favor of two years of community supervision (probation).  Judge Hyde accepted the jury's verdict and added 30 days jail time without credit for time already served.  The formal sentencing will take place Friday.

UPDATE, 5/13/05, 5:30 pm CDT:  Today around noon Judge Hyde conducted the formal sentencing hearing.  The sentence of one year of confinement was suspended, and Mr. Jurgensen was sentenced to two years of community supervision (probation) pursuant to Article 42.12 of the Code of Criminal Procedure plus 30 days in jail which began on May 11, 2005.  During the two year probationary period he may not possess or maintain firearms, he must attend anger management classes, and he cannot have alcohol or controlled substances.  He was ordered to perform the maximum number of hours of community service provided by the said Article 42.12.  And he can have no contact with Charles Harris or Mr. Harris' mother or fiance.  Finally, he was instructed that as a further condition he must obey the family court in which he and his wife are getting a divorce.

UPDATE, 5/13/05, 5:39 pm CDT:  Welcome readers from Jessica's Well where Shepherd makes the excellent point that we have so little choice about who our neighbors are.

Snakebit in Wal-Mart? Not quite.

The Brownwood Bulletin is reporting a story about a guy who claimed that he was bitten by a baby rattlesnake when he reached for a pair of shoes on a rack in a Wal-Mart store in Brownwood, Texas.

[Douglas] Hatchett told an employee he'd been bitten and asked for a snake-bite kit. But he said he did not want an ambulance called and he didn't want to be taken to the hospital. He said store officials told him they had to call an ambulance because of company policy, and he was taken to Brownwood Regional Medical Center. Hatchett said he was treated for snake bite.

Wal-Mart officials have said Hatchett's account "doesn't add up" but have declined to say why.

According to a report filed with the Brownwood Police Department, a hospital employee told police that doctors did not believe he was bitten.

Mr. Hatchett, who is currently out on a $50,000 bond for an unrelated felony burglary warrant, will be charged with making a false report in the snakebite case.

Update - 7/12/04: Jeff left a comment pointing out that there is a well established urban legend about snakes lurking among the items in stores. And, sure enough, Barbara Mikkelson at Snopes.com has a section on this very topic.

Class Action Lawyers, the last to learn.

Yesterday's Wall Street Journal editorial page contained an item by Steven Malanga titled "Class Action? Third Aisle to the Left." It's an opinion piece about the sexual discrimination lawsuit against Wal-Mart which was just given class action status by a federal judge in San Francisco. In it, Mr. Malanga provides a thorough Fisking of the case and the law firm representing the plaintiffs. (The WSJ piece was adapted from a City Journal article titled The Tort Plague Hits Wal-Mart - A federal judge dignifies a flimsy claim.)

One sentence struck a cord with me:

To gin up this argument the lawyers rely on anything they can get their hands on that purportedly shows that Wal-Mart's "culture" is hostile to women, including the fact that Sam Walton used to take his top managers quail hunting once a year—an activity, the suit contends, that men are more comfortable with than women.

If the plaintiffs' lawyers are contending that men or more comfortable at a quail hunt than women, then that contention itself is demeaning and discriminatory. Women represent the fasting growing demographic of new participants in shooting sports. Readers of these pages know that some local individuals recently conducted a Women on Target program to introduce women to recreational shooting. The first clinic dealt with handguns, and the second clinic involved rifles. If there is enough interest in shotguns, then another clinic will involve shooting shotguns. But, this ain't San Francisco, and they may be a little bit behind the times about those sorts of things out there.

Now, I am not familiar with the facts of the lawsuit. The handful of original plaintiffs may have actually suffered from discrimination because they were female. But, the tort system for so long has provided a way for some people to mine for gold in the courthouse especially when they've got a company as successful as Wal-Mart in their sights.