This site digests certain cases that arose out of Evansville, Indiana and surrounding area. Be warned that reading it will have a tendency to induce vomiting. Although they aren’t the only lawyers mentioned, three lawyers will be especially prominent. One is Robert J. Pigman, who is currently a Vanderburgh County judge and who formerly was its Prosecuting Attorney for eight years. The second is Stan Levco, also a former Prosecuting Attorney for Vanderburgh County for twenty years. The third is Randall T. Shepard, formerly a judge in Vanderburgh County, who was Chief Justice of the Indiana Supreme Court for twenty-five years. These three are accorded special mention at the outset not because of their actions as lawyers which will be digested below, but because all three have been elected numerous times, a fact which I think unfavorably speaks volumes for the electorate.
Gregory M. Fudge
The first case has been selected not only because it clearly demonstrates that the Disciplinary Commission plays politics, but also because it demonstrates that the legal system will use the psychiatric profession to shield them from public accusations of impropriety. The case is captioned In the Matter of S. Anthony Long and In the Matter of Michael K. Phillips, decided by the Indiana Supreme Court in 1986. It can be found at 486 N.E 2d 1031. It involved an attorney discipline proceeding against two attorneys from Booneville, Indiana, in Warrick County, which is adjacent to Vanderburgh County, of which Evansville is the county seat. The two attorneys were Anthony Long, the then duly elected prosecutor of Warrick County, and Mike Phillips, elected to the state house of representatives, and at that time soon to become speaker thereof.
The basic facts giving rise to the action were as follows. Phillips assisted in the formation of an entity called the Warrick County Economic Development Commission. The purpose of the commission was:
The financing of single, identified economic development or pollution control facilities and the provision of a program to finance multiple, unidentified economic development or pollution control facilities that promote a substantial likelihood of: (1) creating or retaining opportunities for gainful employment; (2) creating business opportunities; (3) providing reliable water services; (4) the abatement, reduction, or prevention of pollution; or (5) the removal or treatment of substances in materials being processed that otherwise would cause pollution when used….
Phillips was retained as counsel and it was decided that any legal fees for the commission would be paid from the proceeds from economic development and pollution control bond issues. Long had nothing to do with the formation of the commission and was not its attorney, but he did "pinch-hit" for Phillips from time to time. The gravamen of the complaint was that Phillips and Long represented some of the applicants to the commission for financing in other matters, and would thus favor the commission's grant of assistance to their clients.
The procedural posture of the case was as follows. Somebody filed a complaint with the Disciplinary Commission against the two attorneys mentioned above. The Disciplinary Commission investigated the complaint, determined that it had merit, and presented its case to a duly appointed hearing officer. The hearing officer found that the lawyers were guilty of what amounted to a conflict of interest and of charging excessive fees. He also found that the lawyers did NOT either state or imply that they were able to improperly influence the commission. The two lawyers petitioned the Indiana Supreme Court for review, but the disciplinary commission did NOT contest the finding that neither lawyer stated or implied that he was able to improperly influence the development commission.
The state supreme court ruled that the findings of the hearing officer were insufficient to support the conclusion that the two lawyers violated any disciplinary rules, and entered judgment for the lawyers. The court was careful to point out that the record of the proceedings upon which it relied did not include a transcript of the hearing in front of the hearing officer, which for some reason the Disciplinary Commission did NOT provide.
Here is the incredibly obvious legal framework for the analysis of the allegation regarding improper influence of the development commission. The Code of Professional Responsibility, as it existed at that time, was composed of "Canons", "Ethical Considerations" and "Disciplinary Rules." The canons were goals toward which the attorney was directed to strive, the ethical considerations basically stated the reason for the canons and the disciplinary rules, and the rules were strict prohibitions, violations of which were ground for disciplinary action. At that time Canon 9 stated: "A Lawyer Should Avoid Even the Appearance of Professional Impropriety" (Capitalization in original). Ethical Consideration 9-1 stated "Continuation of the American concept that we are to be governed by rules of law requires that people have faith that justice can be obtained through our legal system." Disciplinary Rule 9-101(C) stated "A lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official."
There is no question but that most and maybe all members of the general public would just assume that Phillips' clients would receive preferential treatment by the development commission. Phillips' representation of the development commission in matters pertaining to dealings with those who were once his client thus appears improprietous. Phillips, as well as Long, thus fell well short of the goal of avoiding any such appearance.
As to whether their conduct was violative of the disciplinary rule, consider the following analogy. When escorts get busted for prostitution, none of them attempt to defend by pointing to a man or some men who pay the escort to be with them but not have sex with them, and saying that they agreed to have sex with the guy who busted them because they thought he was sexy. That is because they know that no jury will buy into that defense, and will instead choose to believe BEYOND A REASONABLE DOUBT that the escort engaged in prostitution. The standard of proof for disciplinary action is "by clear and convincing evidence," which requires significantly less certainty than "beyond a reasonable doubt." The perception and the reality is that there is a tacit understanding that a lawyer will favor his clients when they apply for assistance from an entity that their attorney helped create and now represents.
Phillips and Long certainly should have been disciplined for tacitly implying that they were able to improperly influence the development commission. The hearing officer should have so found. Given that he did not so find, the disciplinary commission should have sought review. Given that Phillips and Long did seek review, the Disciplinary Commission should have provided a transcript of the proceedings in front of the hearing officer. (And how strange that Phillips and Long did not request one and then attempted to cite testimony and point to exhibits contained therein!!!) Thus, the then-representative to the Indiana legislature and future Speaker of the House escaped disciplinary action. News flash! Well duh! Was anybody surprised?
Be advised at this point that whether by coincidence or not, governmental fecal matter is often accompanied by an invitation for an objector to be interviewed by a politically correct shrink. The DSM has long listed “paranoid delusional” as a mental illness. According to the DSM, a delusional disorder is primarily characterized by persistent delusions. According to the DSM-V, a delusion is a false belief that cannot be explained by the patient’s culture of education; the patient cannot be persuaded that the belief is incorrect, despite evidence to the contrary or the weight of opinion of other people. Other psychiatric definitions of delusion exist. One is a belief that is “totally incredible to others, unshared, unshakeable, preoccupying, personally referent (rather than religious, scientific or political), distressing or interfering with functioning, unresisted (in contrast with an obsession).” 1Under this definition, Holocaust Denial is not a delusion. That difficulty inheres in defining delusion is widely acknowledged. 2 The delusion need not be bizarre – it can be a theoretical possibility, maybe even a statistical probability. It is easily seen that the fact that difficulty inheres in defining delusion provides the mental health profession with a built-in excuse to be wrong. Here is the important part - there are even those who hold that true beliefs can be delusional if they are arrived at incorrectly. For example, an accidentally true belief (e.g. that one's spouse is unfaithful) can still be a delusion if it arose through a psychotic process rather than a normal empirical process, so that one is right for the wrong reasons. 3
Here is the invitation to be interviewed by a politically correct shrink part of this case. An attorney by the name of Gregory M. Fudge was co-counsel of record for the Disciplinary Commission. The word “fudge” can mean “to cheat about something slightly, esp. by not reporting facts accurately or not telling the exact truth”(Cambridge Dictionary), or even “cheat” (Merriam-Webster Dictionary). What a coincidence that a lawyer named Fudge should be associated with the Disciplinary Commission’s failure. Dissenters be warned that you do not want to say that you know the failure was deliberate because Fudge was associated with it either because it was an “inside joke” or because the Commission “wants to tell you.” Remember that a belief can be labeled a delusion even if correct but arrived at for the wrong reasons! [4][5]
State v. Baab
The second case digested is the prosecution of Jerry Baab, at that time an Evansville dentist, who was falsely accused of molesting his very young daughter during the pendency of a very messy divorce. It has been selected to demonstrate that Robert J. Pigman, then duly elected Prosecuting Attorney of Vanderburgh County, would prosecute a man he thought was innocent in order to avoid political embarrassment . The potential for political embarrassment arose from the fact that Baab was represented in his divorce by a member of the prosecutor’s office, one Robert A. Zoss, a part-time deputy prosecuting attorney. Baab’s soon-to-be ex-wife’s accusations obviously presented Robert J. Pigman – then duly elected Prosecuting Attorney for Vanderburg County, with a political problem. Look at it from Pigman’s point of view. If he declined to prosecute, then his refusal could be made to appear to have been motivated by the fact that a member of his staff profited from Baab. If he thought Baab was innocent and prosecuted anyway, he would leave himself open to a charge that he knowingly prosecuted an innocent man. Pigman’s solution was to do the Pontius Pilate thing and assign a deputy to present the case to a grand jury. The grand jury returned a true bill, and the case was tried in criminal court before a jury of twelve. One might think that the criminal trial would have been handled by the same deputy who presented the case to the grand jury to avoid the inefficiency of duplicity of effort, but that did not happen. (Why was that, Tim?) At the criminal trial, the prosecution was handled by Stan Levco.
During the course of the trial, the messiness of the divorce was brought out, and a motive for Baab’s ex to put the child up to the lie thus became apparent. Furthermore, Baab’s ex was caught in a lie on the witness stand. Accordingly, it wasn’t hard to argue that a demonstrated perjurer with a motive to perjure had put her daughter up to it. Furthermore, had the reader been at the trial, they would understand how it could be said that Baab was obviously innocent – not just “not guilty,” but “innocent for real.” Not surprisingly, the jury returned a “not guilty” verdict quite quickly. Most interestingly, at one point when Baab was on the witness stand testifying on his own behalf, Levco said to the court – with the jury present – “I’m not going to object to anything that [Baab] has to say. 6 One thing that neither Baab nor his attorney said is that the only reason Baab was prosecuted was so Pigman could avoid the appearance of impropriety. That is one interesting omission! Maybe Baab wanted to avoid being deprived of visitation rights, blackball, and entanglements with the mental health profession.
State v. Canaan
The third case to be digested is Pigman’s prosecution of Keith Canaan for capital murder. He was convicted and sentenced to death. His appeals can be found at 541 N.E.2d 894 (1989), 683 N.E.2d 227 (1997), 2003 WL 118003 (S.D. Ind. January 10, 2003) (Not reported in F.Supp.2d), and 395 F.3d 376 (7th Cir., 2005). It has been selected to illustrate the games people played with the death penalty. Note that at that point in time, roughly eighty-five percent of Americans favored the death penalty. Be advised at the outset that there is no question surrounding Canaan’s guilt – he did it. In 1985, Keith Canaan broke and entered the apartment of the victim with the intent to commit theft inside, was discovered by the victim while in the process, whereupon Canaan stabbed her twenty-three or twenty-four times, three of those times being in the vaginal region. He was charged with Murder, Burglary, and Attempted Deviate Conduct. At the time the case was filed, the prosecutor had the option of filing either in the Vanderburgh County Circuit Court of the Vanderburgh County Superior Court. Pigman, a Republican, chose to file in the Circuit Court, which at that time was presided over by William H. Miller, a Democrat, and Pigman’s political adversary. It was well known that Miller viewed the death penalty unfavorably. If Pigman were to be successful in procuring both a conviction and a jury recommendation that the death penalty be imposed (which is exactly what happened), Miller would be faced with a serious dilemma. On the one hand, he could violate his own principles by imposing the death penalty in full view of everybody, and thus lose votes as well as self esteem. On the other hand, he could ignore the recommendation of the jury and refuse to impose the death penalty, and thus lose the votes of those who favored the death penalty. He could also have violated his own principles but saved himself from losing votes by suddenly becoming a proponent of the death penalty, and thus avoid losing votes from either those disappointed in him for not adhering to his principles or for not imposing the death penalty. Imposing this dilemma on Miller, his political opponent was very Pigman-like – he is nothing if not politically astute.
Miller, not exactly politically inept, hit back. He had considerable influence with the Evansville Police Department (EPD). One item of evidence for the prosecution came from a spaghetti box with Canaan’s fingerprint on it. Everybody knows that juries achieve erections over fingerprints. The print was lifted and presented at trial, but not the spaghetti box. EPD had destroyed it. That’s right! A crucial piece of evidence in a capital murder case was intentionally destroyed. Thus, Pigman was faced with a dilemma. On the one hand, he could use the print, and consequently be vulnerable to an accusation of overzealousness in that he used evidence that was manufactured to inculpate Canaan because he wanted to score the political points awarded for procuring the death penalty. On the other hand, he could choose not to use the print, and not only risk not procuring the death penalty, but also the wrath of EPD for undermining their credibility by tacitly admitting the possibility that the fingerprint evidence was manufactured. Imposing this dilemma upon Pigman was very Miller-like.
Pigman used the fingerprint evidence. Miller sentenced Canaan to death. As to the question of whether the fingerprint evidence was manufactured, there are considerations to support either side. Canaan had been convicted of felonies and served time in prison before he murdered the victim in this case. It therefore stands to reason that he would have known to wear gloves during the burglary. Obviously, this militates in favor of concluding that the fingerprint evidence was planted. On the other hand, Canaan had been in the apartment prior to the burglary, and perhaps was not concerned about leaving prints since they could be explained as having been left during his previous visit. Moreover, Canaan was clearly disorganized during at least some moments of the crime, having stabbed the victim either twenty-three or twenty-four times.
There is a lot more that can be said about this case that won’t be said here. One last thing that will be said here is that the fact that Canaan was plainly disorganized when he stabbed the victim repeatedly renders his intent to attempt criminal deviate conduct doubtful at best. Had the jury not found Canaan guilty of the attempted criminal deviate conduct charge, it would have been easy to accuse Pigman of using the death penalty for political purposes by trumping up a charge to justify its imposition, especially in light of the destroyed spaghetti box. Not exactly a political plus for a prosecutor who professed to be Catholic! Since the attempted criminal deviate conduct charge was used as an aggravating factor justifying the imposition of the death penalty, perhaps it is just that Canaan is now off death row and serving life in prison instead of facing execution. Certainly, those who are opposed to the death penalty would agree that it is. Still, the victim was murdered in her own home. Even though she was female and lived in an apartment rather than a house, the maxim “a man’s home is his castle” is still applicable. The historical considerations giving rise to the Fourth Amendment certainly validate this. Keith Canaan is a lucky man. One cannot help but wonder if, but for the shenanigans of the lawyers, the end result would have been otherwise. One cannot also help but wonder if the shenanigans of the lawyers in this case contributed to the relative demise of the death penalty.
State v. Gasoway, State v. Fisher
The fourth and fifth cases to be digested arose from the death of a one-year-old boy. It has been selected because the prosecution intentionally obscured a motive for mothers to smother their babies. It is prefaced by a long discussion of Sudden Infant Death Syndrome (SIDS) and a famous murder case from Eugene, Oregon against Diane Downs. The discussion of the Downs case is included not only because it bolsters what will be said about the Evansville cases, but also because it illustrates how the threat of homelessness was used to intimidate a defendant from testifying in a manner unfavorable to the prosecution.
SIDS
According to the Centers for Disease Control and Prevention, as of 2017, Sudden Infant Death Syndrome (SIDS) accounted for 3,400 sudden unexpected infant deaths each year in the United States. 7 It says here that SIDS was, is, and always will be a knowing and intentional lie, participated in by the medical profession, the psychiatric profession, and the legal profession. You can learn a lot by reading https://odiousness.com/Articles/Shrinks.html (Under the heading "Political Science: SIDS - what is not footnoted here will probably be footnoted there.) You can learn a little more by reading The “Discovery” of Sudden Infant Death Syndrome: Lessons in the Practice of Political Medicine, by Abraham Bergman, M.D.. Note that Bergman predicted that it would take decades to discover the cause of SIDS. Hmmm. Six and counting. You can learn more by reading The Death of Innocents: A True Story of Murder, Medicine, and High-stakes Science, by Richard Firstman & Jamie Talon. You can learn still more by reading Blind Eye: How the Medical Establishment Let a Doctor Get Away with Murder, by James B. Stewart. It is acutely interesting to compare the ease with which virtually the entire medical profession accepted the results of Dr. Alfred Steinschneider’s study indicating a link between apnea and SIDS with its reaction to the allegations of three witnesses who claimed that Dr. Michael “00” Swango tried to kill Rena Cooper, a patient in the hospital where Swango was working. (There was also some corroborative circumstantial evidence.) Steinschneider’s conclusion was based upon the clinical study of only five infants, an obviously insufficient sample to begin with. Furthermore, three of them did not die. Further still, the mother of the other two subjects of the study - Waneta Hoyt - subsequently confessed and was convicted of smothering them. It is impossible to read The Death of Innocents without concluding that Steinschneider was attempting to manufacture a cause for SIDS. On the other hand, Michael Swango is a notorious serial killer who poisoned perhaps as many as sixty patients, has pled guilty to three counts of murder, and is currently serving a life sentence with no possibility of parole. But for blue babies and dead patients, the situation would make for an excellent comedy! (And my-oh-my, doesn’t the medical profession play fast and loose with the nut label! Not to mention not minding hiring a doctor with a felony conviction for battery.)
Note at the outset that from a pathologist’s point of view, a SIDS death is indistinguishable from a homicide. 8 In other words, the pathology of a SIDS baby is the same as that of a baby that was smothered to death. Also note at the outset that the non-existence of SIDS means that in a “true” SIDS case – i.e., ALL possible causes of death other then smothering have been eliminated – the cause of death is indeed smothering. SIDS was promulgated in the 1960s when it became clear that women were going to enter the work force in large numbers. The political objective was to remove the existence of a legitimate reason not to hire them. As stated earlier, the medical profession, the psychiatric profession, and the legal profession have all done their part in the fight for the right to smother the babies.
Medical Profession
The phenomenon once known as crib death has been around for a long time. The Christian Bible contains an account sometimes referred to as “The Wisdom of Solomon.” The account is found at I Kings 3:16 - 27. The account’s relationship to crib death does not require an explanation. The Old Testament also contains an account of how Abraham – the first patriarch – was ready to and nearly did offer the life of his son Isaac as a sacrifice to his god. It also contains the story of Job, who apparently regarded himself as blessed with the birth of his second set of children after the death of his first set. In short, the attitude of the Judeo-Christian religion toward children is not entirely benign. It is also apparent that the phenomenon of non-punishment for crib death has also been around for a long time.
Crib death was responsible for the invention of device called the Arcuccio apparatus. The Arcuccio apparatus was designed to prevent a baby from being smothered, and its nearly universal use in Florence, Italy during the early 1700s to the late 1800s resulted in the nearly universal elimination of infant death by suffocation. The existence and results of the Arcuccio apparatus was noted in an entry in the British Medical Journal way back in 1895. No mention was made of any deaths with the same pathology of smothering but caused by other unknown means.
Despite these antecedents, the medical profession has a history of offering up causes for crib death that do not implicate the mother for intentionally smothering. This litany of excuses included, inter alia, unintentional overlaying, as well as natural causes such as thymic asthma, broncho-pneumonia, trachea-bronchitis, congenital heart disease. It is important to note that these natural causes would not be ruled out as causes of death in a thorough autopsy. One might think that the desire to find a cause for SIDS would prompt coroners to conduct thorough autopsies, but this apparently has not been the case. According to an apologist for the National Association of Medical Examiners, “Since it is a diagnosis of exclusion, there is inherent imprecision ….” This “inherent imprecision” seems only to be present when the subject of the autopsy is an infant, as suffocation is not exactly unheard of as an official cause of death in other cases. Absent other evidence, this “inherent imprecision,” were it actually to exist, would effectively preclude a successful prosecution against a mother who smothered her infant. Given the history of the medial professions reluctance to implicate the mother, one must wonder if “imprecision” is not an objective of the coroner. Certainly, the unwillingness to conduct thorough autopsies is inconsonant with federal grants and other aid to individuals, organizations and conferences purporting to investigate SIDS.9
This paragraph presents an extremely brief sketch of the history of the evolution of crib death into SIDS. In 1962 (the same year JFK issued Executive Order 10988 and two years before Title VII of the Civil Rights Act of 1964prohibited employment discrimination on the basis of sex) , the Mark Addison Roe Foundation, a research organization to study crib death, was formed. In September of 1963, an international conference on sudden infant death was held in Seattle to discuss what was then known about crib death. A grand total of eight experts – five from the U. S. and three from England – as well as thirty other pathologists, pediatricians, and health-care professionals attended the conference. Reportedly, it was decided that more about crib death was unknown than was known. Notwithstanding this void in its knowledge, the group established as one of its goals to establish crib death as a legitimate medical entity. Seattle was the site of another such conference in 1969. At this conference, the first definition of SIDS was formulated: “The sudden death of any infant or young child, which is unexpected by history, and in which a thorough postmortem examination fails to demonstrate an adequate cause of death.” At the end of the conference, it was stated that “we can say that [SIDS] is a definable disease” and that “[i]t can no longer be called a mystery killer.”
Of those that attended the 1969 conference in Seattle, two persons are particularly noteworthy. One is Dr. Marie Valses-Dapena. One of her roles at the conference was to summarize the development of some half-dozen hypotheses postulated to explain the cause of SIDS. At that point in time, the medical consensus was that there was no genetic predisposition toward SIDS. The case of the children of Marie Noe, aka Martha Moore, was brought up, a case with which Valdes-Dapena professed to be familiar. The pseudonymous Ms. Moore had by 1969 lost a total of ten children. Valdes-Dapena informed those in attendance that the Philadelphia police had finally concluded that the children did not die as the result of SIDS. She added that the results of the investigation could not be reported due to legal ramifications. (They have been reported since, and all one really has to do to understand the authorities’ attitude toward infanticide is to familiarize oneself with the facts of her case, including the sentence for her conviction.) The other particularly noteworthy person in attendance was the previously mentioned Dr. Alfred Steinschneider. His future work concerning the deaths of two of the five children of Waneta Hoyt was to serve as the basis for the obviously absurd notion that SIDS ran in the family. Although some doctors are better than others, it is impossible to be stupid and nevertheless become a doctor. These guys knew.
The Psychiatric Profession
"Once you achieve a position of political power, you are considered sane by definition, since you run the show and hire and fire the psychiatrists." 10
The psychology of SIDS is overwhelming. Most of us have seen the reaction of some very young girls to the discovery that they have no penis, and most of us know that they are consoled by explaining that they can have babies and men cannot. It should therefore not be surprising that there are women who have babies primarily for this reason. It is intuitively obvious
The Freudian theory of child development ruled the psychiatric profession until 1966. One aspect of this theory pertains to how children acquire the standards of sexual behavior expected by society. With regard to the female gender, a fundamental component of this aspect is the existence of the Electra conflict experienced by young girls during the phallic phase of their development. According to Freud, it is during the phallic phase that the girl becomes aware of the fact that she has no penis, and accordingly regards herself as anatomically inferior. Again according to Freud, the girl blames her mother for her lack of a penis, and the object of her unconscious sexual feelings becomes her father. Two other theories were promulgated in 1966 to compete with the Freudian model. One is the social learning theory. Under this theory, the child most readily emulates the parent to whom he is most similar, and, mostly by observation, learns to adopt the behavior and attitudes of its same-sexed parent. The social learning theory omits any mention of the Electra conflict. The other theory promulgated in 1966 is the cognitive development theory. Under this theory, the first step in the process of sex-role development is for the child to come to a stable realization of her own gender. This theory holds that children do not develop this realization until approximately age seven. Implicit in this theory is the de-emphasis of Electra. Since the stable realization does not occur until age seven, it cannot have occurred as a result of the young girl blaming her mother for her lack of a penis.
The following generalization is easily made regarding the three theories. If Freud is correct, then the discovery by young girls that they have no penis is traumatic. If either the social learning theory or the cognitive development theory is correct, then young girls are not traumatized by their discovery that they have no penis.
If it is assumed for the sake of argument that Freud was correct, then Electra is clearly relevant to infanticide. To ease the trauma occasioned by the fact that she has no penis, a young girl is often told that while boys have a penis and girls don’t, girls can grow breasts and can have babies and boys can’t. If the girl is as traumatized by her lack of a penis as Freud held, then the mere fact that she is capable of something that the male is not becomes a motive to give birth. A woman who conceives a child primarily because she can and men can’t necessarily views herself in some sort of competition with men, a class to which the father belongs. For some women, the competition is not won with a successful birth. The father seldom if ever acquires a sense of inferiority occasioned by his inability to give birth, and the esteem in which he holds his child may stir a sense of jealousy. The woman may resent the fact that rather than being devastated by the mother’s ability to do something he couldn’t, the father is instead elated. The woman is thus robbed of the triumph she had anticipated since first being consoled upon her discovery that she lacked a penis. This already extant resentment in some cases can be exacerbated by undesirable conduct on the part of the father such as infidelity, or even not sharing the burden that an infant unquestionably poses. Only the emotional devastation of the father will permit her to recapture her triumph. One way to accomplish this is to kill the child. At least initially, this motive was never posited, even though authorities gradually became more willing to accept the fact that "some" SIDS cases were instead murders. Instead, it was psychiatry to the rescue with motives such as "Munchausen-by-proxy" and "postpartum depression." Indeed, the spite motive has been avoided even in cases where the mother clearly battered her child to death after having dated a minority male to spite the racially prejudiced father. Moreover, cases of this type are often filed as "Neglect of a Dependent" rather than "Murder" to obviate the necessity of positing the motive described here. 11
By abrogating the Freudian theory of child development, the psychiatric profession diminished the importance of a young girl’s discovery that she has no penis, and removed the existence of a motive for the mother to have babies, and accordingly to kill her infant. If this motive is considered removed, then there often may be no other motive to explain why a mother would kill her infant. Accordingly, it would become easier to believe that there exists some unknown malady responsible for a death that precisely resembles death by smothering. (O' course, that could not have been the object of the exercise. Matter of fact, the shrinks have invented two new “motives” - post-partum depression and Munchausen-by-proxy - to account for those instances where the conclusion that the mother killed her infant is unavoidable.)
In fairness to the psychiatric profession, it should be noted that not all within it regarded the possibility that SIDS deaths were caused by the mother smothering her infant as “unthinkable.” Among those who thought otherwise was Stuart Asch, who was a psychiatrist and Assistant Clinical Professor at the Mount Sinai Medical Center in New York. Asch, however, “didn’t want to prosecute mothers who killed their children during a postpartum psychosis, or, for that matter, during any other kind of infanticidal episode with psychiatric roots.” 12 Thus, even among those who were willing to consider the “unthinkable” was an unwillingness to hold the mother accountable. This reluctance is difficult to understand since any helplessness of the victim is properly considered an aggravating factor when punishment is imposed. Given this reluctance, it is certainly possible to view the medical professions denial of the “unthinkable” as reluctance to punish for smothering. How is this not playing God? Perhaps the smothering mothers shouldn’t be the only ones punished.
The Legal Profession
Now, at long last, we come to the Evansville cases. The following cases resulted from a crime committed in Evansville, Indiana and involved the death of a child. Both cases resulted in convictions that were appealed, and the appellate court decisions can be read on line. The reader will see that the so-called Honorable Robert J. Pigman (he was the duly elected prosecuting attorney at the time the crime occurred), Bob Zoss, and Stan Levco helped to obscure the spite motive with the way the following two cases were handled. Note that this is exactly the type of thing one might expect from a municipality so indebted to the NAM, Evansville having been bailed out of some tough economic times in the 1970s and being immediately proximate to the coal belt. (Still being burnt for energy, much to the detriment of the Southwestern US – that’s okay, we’ll sell ‘em bottled water, right, good old boys? Hey, maybe even in global further warming cans, huh?)
The first case is State v. Fisher, reported at 548 N.E.2d 1177 (1990). The case should be read in conjunction with a second related case tried separately captioned State v. Gasoway, prosecuted by Robert A. Zoss, and reported at 547 N.E.2d 898 (1989). Again, each case was prosecuted during the tenure of Robert J. Pigman as the duly elected Prosecuting Attorney of Vanderburgh County. Gasaway was convicted of Neglect of a Dependent, but was acquitted of the charge of Murder. Fisher, who is African-American, was convicted of Neglect of a Dependent. Levco and Robert J. Pigman were the prosecuting attorneys in the case against Fisher, although Pigman did not appear at the trail due to an alleged illness. Fisher’s conviction for Neglect of a Dependent was reversed on appeal. The appellate court assumed that each of the allegations contained in the indictment had been proved but ruled that those facts were insufficient to constitute that offense. (Fisher was also convicted for Failure to Report, which is an entirely separate issue from the one discussed here.)
The facts of each case can be read in the published opinions cited above. Basically, Kathy Gasaway (who is white) was married and had a one-year-old son. In March of 1987, she met Chavez Fisher, who is black, at a local laundromat, and visited him at his apartment several times over the next several months. In June, Gasaway left her husband and moved in with Fisher, according to her because her husband had been abusing her. She moved back with her husband later in the same month. However, on June 29 Gasaway again left her husband and again went to Fisher’s apartment. Fisher made clear that it would only be temporary, and on July 9, 1987, he informed Kathy that he had made arrangements for her and Christopher to stay at the YWCA. The next day, Gasaway – accompanied by Fisher - brought Christopher into the emergency room of Welborn Hospital, stating he had been injured in a fall. Hospital personnel noted Christopher was not breathing and had no pulse. Efforts to resuscitate him were unsuccessful. An autopsy revealed numerous injuries to the toddler, some more recent than others. Some clearly occurred during the first separation. A pathologist opined on behalf of the prosecution that a combination of recent injuries caused Christopher's death. Bottom line is that Kathy Gasoway said her husband abused her, that she said she left him because of the abuse, and that her son died while in her care from injuries which were inflicted after she left him.
Three points regarding the two prosecutions are particularly noteworthy, and all pertain to Kathy Gasaway’s motive. First is that although Gasaway herself said she left her husband because he had beaten her, the “spite motive” for abusing her son was ignored. Instead, the prosecution contended that her reason for killing the toddler was that she blamed him for Fisher’s unwillingness to enter into a relationship with her. Second is that Fisher defended the neglect charge by asserting in effect that he rejected her, thus lending credence to the motive alleged by the prosecution in State v. Gasaway. Third is that the facts alleged in the indictment against Fisher did not constitute the offense of Neglect of a Dependent.
It is peculiar that the spite motive was ignored. It should be noted once again that motive is not an element of the offenses with which Fisher and Gasaway were charged. It should also be noted once again that there is nothing that prohibits assigning either a dual motive or an alternative motive. Once again, it has long been said that “hell hath no fury like a woman scorned,” and presumably “abused” falls within the concept of “scorned.” Moreover, the timing of the toddler’s earlier injuries is consistent with the spite motive, but inconsistent with the rejection motive. It is also peculiar that Fisher was charged with a crime for committing acts which did not constitute the crime he was charged with. It is impossible to avoid the conclusion that the prosecution wanted the burden of the toddler etched in stone as the motive so as to obscure the spite motive it ignored. (Small sacrifices must be made, huh Bob?)
It is certain that concealment of the spite motive has resulted in more cases of infants being smothered. One of the goals of the criminal justice system is general deterrence. General deterrence is just a semi-sophisticated moniker for something every grade school kid understands perfectly when one of his classmates acts out and the teacher makes an example of him. Very few people who commit a crime think they will be apprehended. However, in most instances, the criminal is aware of the possibility that they will be apprehended, and, even if only subconsciously, factors the possibility of apprehension and subsequent punishment into the decision to commit the crime. Now try to capture the mindset of a mother who is considering smothering her baby in order to spite the father and is assessing the chances that she will be caught and punished. She knows that because of the myth of SIDS and because her motive is often ignored by the legal system her chances of escaping detection are quite high.
By way of conclusion with regard to SIDS, all three professions have knowingly participated in infanticide. Coroners, if not having officially embraced it, seem to have followed Meadow’s Law, which states “one sudden infant death is a tragedy, two is suspicious and three is murder, until proven otherwise.” The “law” sounds like nothing so much as the old common law maxim which states that every dog gets one bite. The psychiatric profession has offered up two reasons for mothers to smother their babies – Munchausen-by-proxy and post-partum depression, but has completely ignored the rather obvious spite reason. The legal profession has taken the additional step of not only overlooking the spite motive but actively concealing it. The combined efforts of the three professions have effectively enabled mothers to smother their babies with impunity, which has resulted in a large scale failure to deter mothers from smothering out of spite which in turn has resulted in more smothered babies. Make no mistake about it - Pigman, Levco, and Zoss were on the front line in the fight for the right to smother the babies.
The Blue House Case
The next case to be digested is the notorious “Blue House” case that occurred in Evansville in the early 1990s. Stan Levco was the duly elected prosecutor during its pendency. The case involved accusations by nine school children who claimed abuse by a school administrator in a blue house involving satanic ritual. The accusations were apparently somewhat bizarre and could not be corroborated. Levco stated that he did not believe the children and – more importantly for this post – planned to publicly clear the accused. The question is how a case such as this which never even made it to a grand jury garnered so much publicity.
The answer to that question pertains to how incidents of pedophilia on the part of the Catholic Church were being handled at that point in time. Clergy sex abuse of children was nothing new. The following scenario illustrates how easily it can happen. Imagine a young boy who has just begun to understand that he is sexually attracted to males. At this point in time, this would have been a sin requiring confession on two grounds. First, the desire to have sex with anybody, including consenting members of the opposite sex, was an “impure thought.” Second, homosexuality was considered a sin. Now imagine the youth is told by the priest that he needn’t panic because not only are his desires not sinful, they are instead godly. The youth, initially at least skeptical, is then directed to read the account of the young boy who ran away naked when Jesus was apprehended in the Garden of Gethsemane. See Mark 14: 51-52. 13
While clergy sex abuse of children was nothing new, what was relatively new was that cases involving accusations of molestation against priests were getting settled without priests being criminally prosecuted. Lawyers brokered these settlements. Also undisputed is that most of the settlements contained what is known as a non disclosure clause. (But not Phil Saviano’s.) Non disclosure clauses prohibit the parties to the settlement from blabbing about the terms of the settlement, a prohibition which presumably includes blabbing about the contours of the non disclosure clause itself. Consider these undisputed facts in light of the crime of blackmail. The key element of blackmail is a threat involving the disclosure or non-disclosure of a violation of the law. Either the lawyers brokering the settlement agreement were party to blackmail, or prosecutors were informed and, for whatever reason, opted not to prosecute either the priest for child molesting or the alleged molestee for blackmail. The latter tended to create the appearance of impropriety, a prosecutorial no-no. (Let’s see. You give money to the legal profession, and I won’t prosecute.) Either way, not good for the legal profession. And victims were beginning to refuse the confidentiality clauses.
So how to escape the dilemma? The method chosen by the criminal justice system was to undermine the credibility of the child accuser, but not totally. In the mid-1980s, the credibility of the child accuser had reached its high point. However, several widely publicized stories that involved some obviously false claims by young children then occurred. Among these are the McMartin case and Evansville, Indiana’s very own Blue House case noted above and discussed again below. Suffice it to say that, as noted by the Chicago Tribune (May 17, 1991), the Blue House case reflected a recent trend in child abuse cases across the country of an increasing number of alleged child abuse cases being accompanied by alleged satanic ritual. As was easily foreseen, by the late 1980s, skepticism regarding children's credibility had begun to grow. Perfect! Now the Prosecutor has an excuse not to prosecute either the priest for molesting or the child for anything ranging from false reporting to attempting to cause confinement, with blackmail somewhere in the middle.
Levco was certainly correct when he determined the case lacked prosecutorial merit and refused to seek a search warrant for corroborative evidence at the Blue House. So how can his handling of the case be the basis of finding fault with him? Two ways. First is his statement that he was going to publicly clear the accused. Simply stated, that was not part of the job description. Certainly Levco was entitled to publicize his reasons for determining the case lacked prosecutorial merit, and if he cleared the accused in the process, so be it. However, by stating that he was going to publicly clear the accused he went way above and beyond the normal processing of criminal accusations. How many other people wrongly accused did he do that for? Certainly not Jerry Babb, and there were many who felt Babb was innocent even before his innocence became apparent at trial. Huh, Tim? The standard legal remedy for publicly clearing the accused is a defamation suit, not what happened in the Blue House case.
The second way involves an understanding about the relationship between the police and the prosecutor. It is nearly always one of cooperation. Indeed, often the police are responsible for a prosecutor prevailing at election time. This relationship becomes even more obvious when decisions on the part of prosecutors not to prosecute police officers for shootings are considered. Recently we have seen an example of fallout when this cooperation is absent. See, e.g., the police reaction to the Crumbleys' initial evasion of arrest. There wasn’t any mention of any fallout regarding Levco’s decision from the police. Nor was there any fallout from Levco regarding the persistence of the police in investigating.
And there is so much more that can be said about this case - e.g., “Why no more cases like the Blue House case and the McMartin case since the Boston Globe let its little Gospel Spotlight shine?” and “Where did you go to law school, Stan?” – but what’s been said already should suffice. In sum, when a boy accuses a priest of molestation, he is at least almost always either lying or telling the truth. If he is lying and demanding money, then he is guilty of blackmail. If he is telling the truth, then the priest is guilty of child molesting. The Blue House case seemingly demonstrates that it is possible for the children to be merely mistaken instead of lying, and that it is possible for the persons causing the mistake to be motivated by something other than the desire to shake down the church for money. It thus has a tendency to excuse prosecutors everywhere for doing nothing even in cases where money transfers hands, regardless of whether this money is labeled “hush money” or “nuisance value.” When considered in conjunction with its attendant publicity it also demonstrates that it is impossible to be sure enough for a prosecutor to take any action, which was the norm of that era. This remains true even though Rick Doninger was prosecuted for improperly influencing the children. 14That the norm of the era resulted in more kids being molested is beyond peradventure, and the Blue House case contributed.
The next case digested here is captioned Modesitt v. State, a case decided by the Indiana Supreme Court in 1991. Randall Terry Shepard, who grew up in Evanville and was formerly a Vanderburgh County judge, was Chief Justice, and joined in the majority opinion. Understanding this case requires an understanding of the difference between "substantive evidence" and "impeaching evidence." Substantive evidence is evidence offered to prove a factual issue rather than merely for impeachment. Impeachment evidence is offered solely to undermine a witness's credibility. An example should serve to illustrate the difference. To prove a defendant is guilty of the crime of battery, a class A misdemeanor, the prosecution must prove each of the following (these are called "elements" of the crime): 1) identity (i.e., that it was in fact the defendant who did the following); 2) "knowingly" or "intentionally" (the state of mind requirement); 3) a "touching" (could be with a fist, a belt, or a thrown object); 4) in rude, insolent, or angry manner; 5) resulting in bodily injury to the victim. Now suppose husband slaps wife, and causes her lip to bleed. Suppose also that wife calls the police and reports husband, and the police take the report, photograph the wife and her bloody lip, and arrest the husband. Finally, suppose that at the trial, wife recants and says her husband didn't do it. The prosecutor would ask wife if it wasn't true that she had stated to the police (on such-and-such date at such-and-such place under such-and-such circumstances) that the husband did in fact slap her. Wife would then either admit to having made the prior statement, or deny havng made it, in which case the prosecution would call the police officer to whom wife made the statement confirm that she made it. Are you with me so far?
Here is where the distinction between "substantive" evidence and "impeaching" evidence enters the equation. Suppose there is no evidence that the husband slapped the wife other than wife's previous statement (now repudiated). If the wife's previous statement is entered into evidence solely for impeachment, then even though she looks like a liar at trial, there is no evidence whatsoever that the husband committed the battery. On the other hand, if wife's initial report is entered into evidence as substantive evidence, then her initial statement can be used to prove that husband did indeed commit the battery.The evidentiary barrier to entering the initial statement as substantive evidence is the rule against hearsay. In 1975, in a case captioned Patterson v. State, Indiana adopted an exception to the rule against hearsay which permitted prior statements like the one above to be considered as substantive evidence, and thus permitted conviction under the hypothetical situation outlined above. Incidentally, the hypothetical above was well chosen - it typifies the circumstances under which most recanted testimony gets recanted. (Wife and husband kiss and make up.)
Meanwhile, Randy Shephard, former Vanderburgh County Superior Court Judge, now Chief Justice of the Indiana Supreme Court, was accused of smoking a marijuana cigarette and performing fellatio. Shephard denied it entirely (and was reported to have given the fact that he was a public figure as an excuse for not filing a defamation suit).
Now suppose that somebody else accused Shephard of being a dope-smoking fellatio performer, and that Shepard filed a defamation suit against his accuser. Truth of the accusation, of course, would be a complete defense. How to establish truth? Call the initial accuser as a witness. But what if the initial accuser recants his earlier accusation? No problem. Just use the initial accusation as substantive evidence as permitted by the Patterson case mentioned above, right. OOPS! In 1991, Patterson was overruled by, inter alia, Randy Shephard, in the Modesitt. Under this hypothetical, the defamer couldn’t defend a defamation suit by establishing truth of the accusation.
This is not Shepard’s only highly coincidentally timed change of the law. The next one involves Indiana Rule of Evidence( IRE) 610. It states clearly and unambiguously:
“Evidence of a witness's religious beliefs or opinions is not admissible to attack or support the witness's credibility.”
However, IC 34-45-2-12 (formerly IC 35-1-14-13) states:
Lack of belief in a supreme being or in the Christian religion does not render a witness incompetent. However, lack of religious belief may be shown upon the trial. In all questions affecting the credibility of a witness, the general moral character of the witness may be given in evidence.
The notes following Rule 610 in Burn’s Statutes acknowledge that it is inconsistent with IC 34-45-2-12.
This paragraph contains lawyer stuff. There is a serious constitutional right to confrontation issue presented by IRE 610 that nobody has mentioned. Pretend you’re a criminal defendant, and an adverse witness that you know for a fact is an atheist has just sworn to tell the truth, the whole truth, and nothing but the truth so help them God. The jury has just been permitted to infer that this adverse witness won’t testify falsely due to fear of divine punishment. Obviously, this situation should not be permitted to exist, but Rule 610 does exactly that. Be advised that the same situation exists in the federal courts. The rules of evidence used in the federal courts also has a Rule 610 that is worded exactly the same is Indiana’s, and has been in effect since 1975. Indiana’s Rule 610, however, did not take effect until 1994. Be advised also that IC 34-45-2-12 predated IRE 610. The crux of this section is that, at least in Indiana, it was permissible to show lack of religious belief before the massacre that occurred at Waco in 1993, and impermissible shortly after the massacre at Waco.
About Waco. In 1993, a group of about one hundred twenty-five Branch Davidians was living in a compound just outside Waco, Texas. A warrant was issued for the arrest of Vernon Howell, better known as David Koresh, for weapons violations. A warrant to search the premises was also issued. The feds executed the warrant via a commando style raid, which some of the Branch Davidians resisted with gunfire, killing four BATF agents. A fifty-one-day standoff resulted. When the feds finally attempted to force the residents of the compound out with tear gas, fires were started, shots were fired, and seventy-six Branch Davidians were dead, including nineteen children. (You can read a lot more about the Christianity motive at odiousness.com/Articles/Waco.) There is no questioning the fact that the Branch Davidian leader was a game boy. Indeed, he once referred to Branch Davidian as “a game for gain.” He was born Vernon Howell, but had his name legally changed to David Koresh in 1990. The significance of that change is as follows. Christian doctrine contains a two very basic paradoxes. Matthew and Luke both contain genealogies, both of which trace the line of Joseph. Critics and apologetics all agree that the reason for their inclusion was to show that Jesus was of the line of David, and thus fulfilled purported Old Testament prophecy with regard to the purported messiah. Mainline Christian doctrine also holds that Mary was a virgin when she gave birth to Jesus. The problem is that if Joseph was the father of Jesus, then he was not immaculately received. On the other hand, if Jesus was immaculately conceived, then the genealogies are irrelevant, and it looks like Jesus did not fulfill prophecy concerning the “branch of David.” At least somewhat interestingly, Koresh tried to woo Madonna (like the Virgin Mary is sometimes referred to) into his fold. The second paradox consists of the fact that the Persian king Cyrus is expressly referred to as “messiah” in Isaiah 45:1. Note that “Koresh” is Persian for “Cyrus.” If you really believe that all of this is a coincidence, then you’re an idiot. If you don’t believe it’s all a coincidence but choose to say it is, then you have what Hillary Clinton calls political courage, and the psychiatric profession has a job for you. Christianity, then, was one of Koresh’s games. He played it by alluding to incoherence in Christian dogma. Here is one motive for killing Koresh rather than enduring the threat of embarrassment a trial would pose.
So imagine the following sequence of testimony at a trial after the witness has taken the witness stand:
Judge: Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?
Witness: I do.
(W testifies on direct examination for the prosecution)
Lawyer for Defendant (D): Do you believe in God?
W: Yes.
D: Which God?
W: The Christian God.
D: Do you believe that Jesus was immaculately conceived?
W: Yes.
D: You are aware of the genealogies in Matthew and Luke?
W: Yes.
D: You are aware that by their terms they trace the lineage of Joseph?
W: Yes.
D: You are aware that they were included to demonstrate that Jesus fulfilled the prophecy of descending from the branch of David?
W: Yes.
D: If Joseph was not the father of Jesus, how can he have fulfilled that prophecy?
Twelve jurors and a gallery of spectators would thus be exposed to a problem with Christian dogma which would have been especially meaningful in the wake of the massacre at Waco. Then Randall T. Shepard said, “Let there be IRE 610.” Problem solved!
Although there are way more issues with Evansville law (for example more than a couple of handfuls of pretty egregious examples of legal malpractice, not to mention a handful of premature deaths among political opponents), what’s been said should suffice in the event that the reader ever requires an emetic. One thing is particularly troubling. Pigman, Levco, and Shepard all held political office for considerable periods of time, and Pigman is still a judge in Vanderburgh County. This fact reflects extremely poorly on both the Evansville legal profession and the Evansville electorate.
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