Raye Dawn's trial counsel made an effort of proof on July 16, 2007, concerning the testimony of defense witness and former judge, Craig S. Key. This Court haeard the matter and denied the right to even call Mr. Key as a witness to the stand. In denying Raye Dawn that right, this Court directly infringed on her constitutional right to present a defense and to call witnesses to testify in her defense. See U.S. Const. Amends. V, VI and XIV and OKLA. CONST. Art II, paragraphs 7 and 20. Craig Key was a fact witness who could have given relevant and highly material evidence that would have supported the defense. Mr. Key would have testified consistently with his book, and as evidenced below, his testimony would have been clearly relevant at trial and would have directly countered the testimony of witnesses for the State. Defendant proposes that Mr. Key would have testified to the following:
That in June, 2005, he went to the court lobby to see Kelsey for himself. He writes, "She looked like a totally normal child, no bruises, nothing. She had been hopping around, almost bubbly."
"None of the evidence, allegations or testimony that I had seen from the time I had made the decision to return Kelsey to the custody of her mother, Raye Dawn Smith in June until October 11th had caused me to doubt whether or not I made the wrong decision. I had questioned DHS workers on several occasions to find out how Kelsey was doing and I was continuously told she was doing well and that was continuing to grow her hair back and gain weight."
"In fact, the placement of Kelsey in Raye Dawn's home was going so well that, at the September 8th hearing to stop visitation of the paternal side of the family, the Assistant District Attorney and Kelsey's court-appointed attorney wanted to dismiss the entire case against Raye Dawn."
"Everything I'd seen confirmed that although this case did involve allegations of child abuse, there was no definite perpetrator identified. It was apparent to anyone who was involved in investigating the case that Raye Dawn loved and wanted Kelsey. She fully cooperated with the authorities to gain back custody of her child. Further evidence was the fact that even after the June hearing, Raye Dawn continued her complete cooperation with the agencies that watched out for Kelsey."
At Pages 41-43, Judge Key writes about an incident between Julie Sebastian and Kathie Briggs when Kathie came to pick up Kelsey from daycare. According to Judge Key, "Kathie jumped out of the car, instantly became angry and started yelling at Julie Sebastian. Julie held Kelsey as Kathie grabbed Kelsey's little arm and tried to rip her loose. Julie was afraid that Kathie would hurt Kelsey by pulling on her in that manner, so she let Kathie take little Kelsey."
"On at least three occasions, during the time Kathie had temporary guardianship of Kelsey, she took Kelsey to DHS and Kelsey was asleep and would not wake up for the worker to fully examine her. It has been alleged that Kathie continuously had Kelsey on unncessary medicines and that Kathie took Kelsey to the doctor repeatedly. DHS workers noted that, while in Kathie's custody, Kelsey seemed lethargic and slept most of the time."
"Although she was in protective custody, it was apparent that Kelsey wasn't adjusting to being in the Briggs home. A red flag was rasied for me, as a judge, when DHS told me Kelsey's hair began falling out in clumps while in the care of Kathie Briggs. Kelsey's hair was falling out to the pint that she had a bald spot on the back of her head the size of a baseball. She began self-mutilating by biting her arms, and as clearly stated in Kelsey's obituary submitted by the Briggs, she was apparently biting the Briggs family as well."
"After visitation when it was time for Raye Dawn to return Kelsey to the Briggs, she would cry and cling to her mom and say she didn't like 'Mommy Ashley' and she didn't want to see 'Kafie.'"
"DHS was only able to narrow the timeline to show that the fractures occurred when Kelsey was in the care of Kathie Briggs from April 18th to April 21st, or with Raye Dawn Smith from April 21st to April 25th, during which time, multiple people had access to Kelsey."
That it bothered him that Kathie did not take Kelsey to the doctor during that time she refused to walk. "When Kelsey could not walk, Kathie saw no need to get a second opinion." Judge Key emphasized that this inaction on Kathie's part for the four days she had Kelsey made no sense given that Kathie would send numerous e-mails to DHS any time she found a bump, bruise or scratch on Kelsey.
Mr. Key would have testified that there were "red flags" raised in his mind while Kelsey was undert he care and custody of Kathie Briggs and that the child began to thrive once she was returned to her mother, Raye Dawn, in June. Mr. Key's testimony was certainly relevant and material to Raye Dawn's defense. The fact that he was a former judge did not preclude him as a witness. Relevant evidence is generally admissible. Nor was his status as a former judge, or even the judge in another matter related to the criminal case, a bar to his competency as a witness. Even if the offer of proof of defendant's counsel was inadaquate, it was plain error to bar him from the stand as his ability to testify to relevant and admissible evidence was clearly known by the Court. He should have been permitted to take the stand, then objections to specific questions could have been raised and ruled upon. To keep him off the stand entirely is sufficient, standing alone, to grant a new trial. It was and is plain error which was not harmless. He had personally observed the child in June, 2005 and Kelsey had no bumps or bruises. She was happy.
Mr. Key would have testified that even Kathie Briggs was not concerned with Kelsey being around Michael Porter during late March and into April, 2005. Finally, he could have impeached Kathie Briggs' credibility. Briggs testified as a witness for the State. Mr. Key would have impeached her credibility. Kathie Briggs told numerous DHS workers and Key that Lance Briggs was away in Iraq and this was his reason for not attending the hearings involving Kelsey. Each time DHS watned to contact Lance Briggs about the investigation, Kathie Briggs would say he was unreachable. For months, DHS had not heard from Lance and he had not contacted them to find otu what was going on with his daughter. Kathie Briggs claimed Lance was in Iraq this entire time, but when the struggle over Kelsey was at its peak in April, 2005, Lance was reachable on his cell phone and he told workers he was driving around Shawnee, Oklahoma.
It simply defies due process to suggest that former Judge Key would not be allowed to testify because he might attract the media's attention. It is the Court's duty to control the trial and media within constitutional limits and to see that the process is fair. The judge is not the "mere moderator, but the governer of the trial." See Herron v. Southern Pac. Co., 283 U.S. 91, 95, 51 S.Ct. 383, 75 L.Ed. 857 (1931). Surely, what media that was goig to be present at the trial was already there. It appears that every local television station from Oklahoma City and Tulsa were present along with numerous newspaper reporters. In any event, the Court could have taken adequate measures to ensure that the news media inside and outside the courtroom did not detract from the proceedings.
The records of this case demonstrate that the trial court and counsel failed to exercise control over the abusive conduct of witnesses, potential witnesses, prosecutor and members of the Briggs family, as well as the media. The jury was allowed to roam about almost at will, the prosecutor was allowed to engage in unprofessional conduct throughout the investigation, charging process and trial, witnesses were allowed to go far outside the evidence. The result was that the defendant's rights of fair process to due process and to effective assistance of counsel---all as guaranteed under the Fifth, Sixth and Fourteenth Admendments of the United States Constitution and Oklahoma Consititution---were denied and defendant was prejudiced by this denial.
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