It goes without saying that this was anything but a typical criminal case. It is a case that achieved national attention. It is a case one might be reminded of every day, driving down any street in Oklahoma and see pink heart-shaped stickers on back windows and rear bumpers of automobiles with Kelsey's face on them. In fact, one legal analyst for KOTV News Channel 6 in Tulsa asserted on the second day of trial that "The case has received as much publicity for a local case as any case in the State with the exception of the McVeigh and Nichols trials." He added that "the public has already heard much of what will be presented in the trial for Kelsey's mother, Raye Dawn Smith."
This tragic saga started long before February 2006, when the accused was charged. Litigation involving the life of Kelsey Smith-Briggs started more than three years ago when Kathie Briggs, Kelsey's paternal grandmother, petitioned for grandparent visitation rights in September, 2004. The custody battle began to heat up in January, 2005 when the Department of Human Services became involved.
Lance Briggs and Raye Dawn Smith were married on July 15, 2000. It was a tumultuous marriage that involved serious physical abuse by Mr. Briggs toward Raye Dawn that resulted in domestic abuse charges. Mr. Briggs pled guilty to physically assaulting and battering Raye Dawn and was ordered to attend anger management and pay various fines. The marriage was short-lived, and the two divorced in July, 2002. At the time of their divorce, Raye Dawn did not know she was pregnant with Kelsey. After the divorce, Mr. Briggs broke into Raye Dawn's home several times, vandalizing it and leaving threatening letters. On December 28, 2002, Kelsey was born. After Kelsey broke her collarbone in early January, 2005, the custody battle ensued full-throttle, and from that point forward clear up until Kelsey's death on October 11, 2005, until the conclusion of the criminal trial against Raye Dawn Smith, Kathie Briggs made it her mission in life to destroy Raye Dawn's life.
Moreover, Dr. Carl Griffen testified at trial that this [the collarbone] was the most commonly broken bone in the human body. Yet, from that point forward, Kathie Briggs, who reportedly showed up on the courthouse steps in Pottawatomie County with her own children years ago and said she could no longer take care of her children and who took almost two years to complete her treatment plan and to have her children returned to her by DHS would bring Kelsey to the Emergency Room for every little bump, bruise or scratch. See Craig Key, A Deadly Game of Tug of War: The Kelsey Smith-Briggs Story, p. 18. Kathie Briggs and her family made referral after referral to DHS. Kathie Briggs admitted at Raye Dawn's trial to pushing the criminal case against Raye Dawn. According to Judge Key, Kathie Briggs and her supporters picketed the office of Richard Smothermon until the political pressure grew so strong that on February 24, 2006, criminal charges were filed against Raye Dawn. She admitted also that she had reported Raye Dawn to the Meeker Police Department for an expired tag. In May, 2005, Officer Matt Byers from the Meeker Police Department investigated Kathie Briggs for stalking and harassing Raye Dawn.
The case has received an enormous amount of publicity both before trial, during and after. According to transcripts of close captioning of local news provided by Newslink there were 910 stories reported on Kelsey Smith-Briggs on local television channels from Kelsey's death in October, 2005 up until the date the defense filed its change of venue motion on May 11, 2007. The number of stories ran were the equivalent to almost two stories daily since the start of the case. Along with the extensive television coverage, The Daily Oklahoman Newspaper was shown by Newsok.com to have produced at least 59 stories about Kelsey Smith-Briggs prior to May 11, 2007. The Shawnee News-Star also provided extensive coverage by publishing at least 62 articles in its newspaper and website chronicling the events of the case. On KWTV News Channel 9's website at Newsok.com, there is still a continuing coverage link that takes the public directly to stories about the case.
Sealed DHS records concerning Kelsey were "leaked" to the press. Pictures of Kelsey following an automobile accident in August, 2005 were given to the press and stories were ran claiming her injuries from the automobile accident were abuse.
In conjunction with the news media before trial, Kathie Briggs and the rest of Kelsey's family on the paternal side actively voiced their opinion and bias through the use of the Internet. Kathie Briggs established the website titled "Kelsey's Purpose," shortly after Kelsey's death in October, 2005. The website's stated purpose includes seeking "justice for her killer(s)." Since Kelsey's death in October, 2005, the Briggs family have used Kelsey as a poster child for money. They have continued to exploit her sad death for their own financial and emotional gain and gratification. On May 18, 2006, Lance Briggs filed a $15 million dollar lawsuit in Oklahoma County District Court alleging a systemwide failure to investigate who was abusing Kelsey. See Oklahoma County Case No. CJ-2006-4125. The case was moved to federal court in Oklahoma City. See also U.S. District Court Western District of Oklahoma Case No. CV-06-00677-HE. On June 5, 2006, Lance Briggs filed a second civil suit in Pottawatomie County Case No. CJ-2006-506. On October 12, 2007, Pottawatomie County District Judge Douglas Combs dismissed the case against the two doctors and the clinic, ruling that the lawsuit filed by Lance Briggs had no legal standing and was based solely to garner sympathy.
Kathie Briggs and members of her family also used the death of Kelsey to influence Judge Key's re-election in Lincoln County. The overriding outcome in the judicial election hinged on the events of the case. A letter written by Kathie Briggs expounding the bias viewpoint of members of the paternal family was distributed throughout Lincoln County through door-to-door delivery, passed out through political rallies, and mailed to all registered voters. Hundreds of fliers and thousands of bumper stickers were passed out at numerous rallies held by the organizers of Kelsey's Purpose. Further, billboards with Kelsey's face plastered on them were placed on Interstate 40 west of Shawnee in Pottawatomie County and on Highway 18 just north of Meeker. Kathie Briggs admitted at trial that she sponsored Sheila Kirk to run against Judge Key.
Sheila Kirk also exploited the death of Kelsey in her run for judge against Judge Key. For example, in late October, 2006, she did a direct mailing showing Lance Briggs in his military uniform looking down on Kelsey. Kathie Briggs called every voter in Lincoln County several times with a pre-recorded message asserting that Judge Key had returned Kelsey to an abusive home against the recommendation of the district attorney and DHS and asking voters to vote for Sheila Kirk as Associate District Judge on November 7, 2006 because she had promised Kelsey to seek to hold those who failed her accountable. On November 7, 2006, Judge Key lost is bid for re-election. Sheila Kirk represented Raye Dawn as the attorney in her divorce case against Lance Briggs. Clearly, Ms. Kirk owned an ethical duty to Raye Dawn as a former client to remain conflict-free and not use or reveal information relating to that representation to the disadvantage of Raye Dawn. See e.g. OKLA. Stat. tit. 5, Ch. 1, App. 3-A, Rule 1.8(b) and 1.9(c). Clearly, exploiting an attorney's former client - without legal authorization - to get elected judge is not in the best interests of that former client and, in the very least, has an appearance of impropriety. Joining forces with your former client's ex-in-laws (one of whom was a party against whom Ms. Kirk represented Raye Dawn) whose sole mission in life is to sent your former client to prison for the rest of her life is not professional.
Legislation in Oklahoma was passed in Kelsey's name, i.e., The Kelsey Smith-Briggs Child Protection Reform Act, House Bill 2840. Kathie Briggs was instrumental in getting this legislation passed. She testified at trial that she lobbied at the Legislature. She also testified before the Senate Judiciary Committee which approved the measure in March, 2006.
On June 27, 2007, just days before Raye Dawn's criminal trial, former Judge Key announced the publication of his book, A Deadly Game of Tug of War: The Kelsey Smith-Briggs Story. As of June 27, 2007, the book was available online at http://www.judgekey.com/. Judge Key was a proposed witness for the defense with relevant admissible evidence, but this Court ruled that he could not even take the stand despite the fact that he had written a book about the case, the book had been released, he had no immunity, and his testimony would have directly contradicted testimony from the State's witnesses.
The newspaper and television are not the only negative image delivery system in the market that has carried reports on Raye Dawn. Rather, the public has received an inordinate amount of other negative media impressions of Raye Dawn through radio, alternative publications and web "bloggers." The blogging traffic on this case has been extreme in language and quantity. One posted message by a female discloses that Ms. Briggs handed out over 100 fliers and stickers on the "Kelsey cause" to fellow classmates at the University of Oklahoma. Other posts report floats in parades and booths at festivals statewide were sponsored in Kelsey's name. The speech given by Kathie Briggs at the "Justice for Kelsey" rally on the stops of the state capitol was published in Post No. 2 by "Aunt Bean" on the site. The statements by Kathie Briggs in these blogs alone are appalling, and these statements were made while she was under a gag order. The following are only a few, but they certainly demonstrate Kathie's hostility, hatred and mission to ruin Raye Dawn.
"If ever anyone could plea insanity, it could have been her. She seems to have come by it honestly as her family shares her views." By Kathie Briggs
"Raye Dawn is just plain backwards if she, as a mother, could not see her child was in trouble. Raye Dawn's daughter is dead and she did NOTHING to stop it. Playing DUMB is not an excuse." By Kathie Briggs
People on Kathie Briggs' site personally attacked Raye Dawn's mother and 74-year-old grandmother. These persons accused both Raye Dawn's mother and grandmother of crimes, including child abuse, assault and battery, embezzlement and obstructing justice.
On June 28, 2007, the Honorable Paul Vassar granted defendant's motion for a change of venue and transferred the case to Creek County, Bristow Division, because of the inordinate amount of pre-trial publicity and inability to obtain an impartial jury in the Twenty-Third District. While this Court allowed for a change of venue, it refused to sequester the jury during Raye Dawn's trial, and conducted a limited and superficial voir dire.
On February 15, 2007, a "gag order" was issued in the case against Raye Dawn. Pursuant to the order, this Court ruled that none of the lawyers in this case or any persons assiciated with them or any person listed as a witness for either the State or defendant "shall release or authorize the release of information or opinion about this criminal proceeding which a reasonable person would expect to be disseminated by any means of public communications, if there is a reasonable likelihood that such disclosure will interfere with a fair trial of the pending charges or otherwise prejudice the due administration of justice." On October 25, 2006, a similar order was issued in Michael Porter's criminal case. The Honorable Dawson R. Engle, Special Judge for Twenty-Third Judicial District Court, found that repeated violations of the gag order entered in Mr. Porter's case had occurred despite strong warnings to both Mr. Smothermon and Mr. Sutton. The trial court should have monitored and enforced this order.
No one can reasonably dispute the fact that the news media had a tremendous impact on the outcome of Raye Dawn's trial. District Attorney Richard Smothermon, himself, admitted that the news media was a detriment to the trial. In an exclusive interview with KOKH FOX 25 on July 23, 2007, on the 9:00 news, Mr. Smothermon was interviewed. He had the following to say about the trial and how the media handled the case:
"The media, no offense, the media took this case and really gave it a life that I wonder whether it should have had. I found it odd that the media became so consumed and so feverish about this case, and it was a detriment to the case. The media is never helpful to the case in my opinion because I would rather go in front of 12 people and give them the facts and let them make the decision. The media just influences it by the way you report it, whether it's accurate or whether it's not."
Few argue with that opinion.
The 12 people who sat as jurors in Raye Dawn's case were influenced by the news media as well as members of the Briggs family. This brief will show that jurors received evidence out of court. Attached to this brief in support of a motion for a new trial are affidavits from 12 people who were at the trial, watched the proceedings and also observed what went on outside of the courtroom. These affidavits all evidence that members of the jury interacted with members of the Briggs family and were present just a few feet away while the news media conducted interviews with numerous members of the Briggs family and other trial witnesses.
Two witnesses report seeing a male juror sitting at a table right next to the Briggs family in a burger place in Bristow one day of the trial. This same male juror was observed watching the noon news on a television in the restaurant, which broadcast details of the trial. This was just minutes after the jury had been cautioned by the judge not to watch television.
Several witnesses distinctly remember Michelle Reeves as one of the female jurors that congregated at the front entrance by the benches with members of both the Briggs family and news media. This is particularly important because Michelle Reeves was an apparent leader in the jury in terms of emphasizing Raye Dawn's alleged guilt and responsibility and voicing the opinion that she deserved a life sentence. This is evidenced by comments she has made to the television and print media. For instance, in one television news interview with KOKH FOX 25, ran just a few days after the trial, Michelle Reeves indicated that two of the jurors only wanted to give Raye Dawn a year in prison. Michelle Reeves said she held up a picture of Kelsey's dead body saying this is eternity. Michelle Reeves told The Daily Oklahoman that one male juror suggested Smith get only a year to which she responded by holding up a picture of Kelsey and saying, "This child was given life in a cold grave."
It is also clear that Michelle Reeves received evidence outside of trial. In an interview with KOKH FOX 25, Michelle Reeves told Britton Follett the following:
"Who killed Kelsey? In my eyes, Raye Dawn did. The child was already in the process of dying whenever she left her there with Micheal Porter. What set her off, or what caused her to do the injury, we don't know. But we feel she did it. If murder would have been down there as a possible deal, that's what we would have went with. It's not over with, because I know she's going to get out one day. She's going to breathe air. She's going to have life. What's Kelsey getting?"
Contrary to Michelle Reeves' assertions on the air, it was never in dispute who killed Kelsey. In fact, Mr. Smothermon himself said on the record that he believed Michael Porter murdered and sexually assaulted Kelsey. Clearly, Michelle Reeves thought she knew more about the case than what she disclosed in voir dire. She certainly received evidence out of court. A jury's verdict must be based on evidence received in open court and not from outside sources. Her comment that "the child was already in the process of dying whenever she left her there with Michael Porter" is absurd. Such evidence was absolutely not brought out in trial. Perhaps she received this information while smoking with the Briggs family by the benches at the front entrance.
As soon as Raye Dawn's trial was over, Michelle Reeves joined the Briggs' "bandwagon" and jumped on the "Kelsey's Purpose" website. Michelle wrote the following on this site concerning "The Trial for Raye Dawn Smith":
"As one of the jurors in this heart-felt trial, I have let my thoughts be known to many people. I have told Kathie that I believed Raye Dawn Murdered Baby Kelsey, and also I was one of few who watned to give Raye Dawn A LIFE SENTENCE!!!!!! I BELIEVE SHE SHOULD HAVE GOTTEN A DEATH SENTENCE. I TRULY HOPE THAT SHE GETS SOME BEATENS JUST LIKE THE ONES SHE GAVE. I WILL NEVER FEEL THE PAIN THAT THE BRIGGS FAMILY HAS FELT, BUT I HOPE IN THE NEXT 27 YEARS IT GETS BETTER. GOD BLESS THE BRIGGS FAMILY. SEE YOU ALL AUG 23 AT 1:30 PM. FLY Kelsey FLY"
And this individual was allowed to sit on the jury!
Due process requires that an accused receive a trial by an impartial jury free from outside interferences. If publicity during proceedings threatens the fairness of a trial, a new trial should be ordered.
As evidenced above, several of the witnesses in Raye Dawn's trial were interviewed both before and after they testified. This Court had total control of the courtroom and courthouse premises. It could have prevented the negative impact the news media had on Raye Dawn's trial. This Court's attitude in handling this aspect of the trial resulted in Raye Dawn receiving an unfair trial. Moreover, reporters would broadcast on television what the anticipated testimony would be for the next day.
"Had the judge, the other officers of the court and the police placed the interest of justice first, the news media would have soon learned to be content with the task of reporting the case as it unfolded in the courtroom - not pieced together from extrajudicial statements," Sheppard in Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct 1507, 16 L. Ed.2d 600 (1966)
Like the Sheppard case, Raye Dawn's case was also appealing to the media because there was a murder of a small child; a possible sexual assault of a child; one family, i.e., the Briggs family, that was more than willing to speak with the news media on a regular basis; two families that had been involved in tense relations for years; a so-called war hero who had allegedly returned from serving just a seven-month deployment in Iraq to find his daughter had died [evidence and Lance's own statement show four to five months]; a judge losing his re-election over the case; effectively two defendants, the stepfather and mother; a paternal grandmother who was instrumental in passing legislation in the child's name; and multi-million dollar lawsuits filed against several state agencies and the Oklahoma Department of Human Services. It was every news reporter's dream. And, like Sheppard, Raye Dawn did not receive a fair trial by an impartial jury as due process mandates.
From Sheppard, 384 U.S. at 362-63: "Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. Where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, thejudge should continue the case until the threat abates, or transer it to another county not so permeated with publicity. In addition, sequestration of the jury was something the judge should have raised sua sponte with counsel. If publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered. The courts must take steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for the defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate this its function."
Raye Dawn's case took on a "celebrity" status long before it went to trial. The news media locked in on Raye Dawn as if she was the bulls eye on the target very quickly and never inquired in the Briggs family or why Lance was only in Iraq for four to five months. In essence, the news media became family publicists for the Briggs family and their cause but placed a scarlet letter on Raye Dawn's chest because she was the child's mother, i.e., she should have known, although admittedly several state agencies, including the Department of Human Services, numerous doctors, and each and every family member from both sides did not suspect Michael Porter.
Bottom line, no one can deny the negative impact that the media coverage had on Raye Dawn's trial. Even District Attorney Richard Smothermon admits that the news media "was a detriment to the case." The jury in Raye Dawn's case should have been sequestered or protective measures should have been taken by the Court to ensure that jurors did not mingle and interact with trial witnesses, members of the Briggs family and the news media. Raye Dawn did not receive the fair trial she is entitled to under the United States and Oklahoma Constitution. As such, she should be granted a new trial with jurors uninfluenced by the news media.
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