Proposition 5: The medical evidence in this case does not support prior abuse
The medical evidence in this case simply does not support prior abuse. The pysicians that testified for the State overrated the medical evidence. The State primarily relied upon two injuires - the broken collarbone and the two leg fractures. Dr. Carl Griffen testified that the collarbone is the ost commonly broken bone in the human body. The Meeker Police Department investigated Kelsey's broken collarbone and did not file charges against Raye Dawn, ruling out abuse. DHS also ruled out abuse to the collarbone. Without more, a collarbone break is not concerning at all. Such an injury is common to a child Kelsey's age. Further, Raye Dawn's older sister, Janet Gragg, tesitified that her child had suffered not one, but two broken collarbones. There is no evidence that Ms. Gragg abuses her children.
Then there are the two leg fractures. It was established by evidence at trial that Kelsey was not with Raye Dawn when she sprained her ankle at the zoo. Rather, Kelsey was with her aunt. Therefore, one cannot blame this injury---which was not abuse---on Raye Dawn. She was not even around. Second, there is the issue whether the leg fractures, or one of them, were sustained while Kelsey was in the custody of Raye Dawn or in the custody of her paternal grandmother, Kathie Briggs.
What is disconcerting about these facts is that whenever Kelsey suffered any small bump or bruise before or after this, Kathie would make a DHS referral and take Kelsey to the emergency room. Yet, Kathie claims she does nothing in these four days where Kelsey refused to walk. This lack of action is very suspicious. On April 25, 2005, Kelsey is diagnosed with bilateral tibia fractures.
The defense, after trial, sent the X-rays of Kelsey's right and left shins and feet to a former Chief Pediatric Radiologist at Santa Clara Valley Medical Center in San Jose, California for her review. She is Board Certified in Diagnostic Radiology and has trained and worked in pediatrics, general radiology and pediatric radiology for 15 years. She is not an advocate for either side, has not interest in the outcome of the litigation and is unrelated personally or professionally to any party. She is what Dr. Sullivan and Dr. Barrett are not: a witness who testifies as to what the medical evidence is to a degree of reasonable certainty. It is clear that Dr. Sullivan overstated the evidence. She asserts that the X-rays show "bilateral oblique fractures of the infant's right and left tibial shafts." "These are more commonly referred to as 'toddler's fractures.'" She further asserts that peak occurrence of these fractures is between nine months and three years af age and taht such fractures are "usually associated with falls from swings, slides, trees, etc." Kelsey was less than 2 1/2 years old when she sustained these fractures. This places her directly within the peak occurrence age for normal toddler fractures sustained through accidental causes. She also indicates that while fractures of this nature are common in child abuse, they have a "low specifity because of their common occurrence in accidental injury." As evidenced, the fractures to Kelsey's legs are non-specific at her age for abuse, i.e., not suggestive of abuse, much less evidence of abuse within a reasonable medical certainty.
Contrary to Dr. Sullivan's assertions, these leg fractures were not spiral fractures. Rather, they were oblique, slanted or tilted in layman's terms. No one grabbed this child in anger and twisted her legs. The leg fractures were not the result of abuse, either from the Briggs or the Smith families. Kelsey could have sustained these fractures through an accidental injury.
On cross-examination, Dr. Sullivan addressed the formation of callous, i.e., the healing of the bone. He testified that callous will form and become visible in an X-ray within a week to 10 days. He further testified that there was callous on both of Kelsey's legs and emphasized that callous does not form overnight. This testimony placed the date of Kelsey's fractures occurring at a time when Kathie Briggs had exclusive custody and control.
Dr. Sullivan admitted at trial that his facts as to what happened came solely from Kathie Briggs, who is hardly an objective source. He contacted no one---including the treating physician, the mother or the child's regular physician---to substantiate those facts. Dr. Sullivan took a story---a story invented by Kathie Briggs---and manipulated the medical evidence to fit that story.
Dr. Barrett testified at some length about the so-called bruises to Kelsey's backside that are visible in pictures taken by the paternal family on January 14, 2005. He testified that abrasions to this area are suspicious because they are in a place where they usually are not seen. He also indicated that a child's backside is padded and that these bruises pointed to a patterned injury. Independent medical review of the pictures of these so-called bruises indicates that these "bruises" are most likely not bruises or abusive wounds but rather the result of a child being kept in a soiled diaper too long. The evidence produced at trial supports this conclusion.
Ashley Gober, the stepmother, testified that she took these pictures of Kelsey on January 14, 2005 while Kelsey was in the bathtub. Ashley said Kelsey had been in Kathie Briggs' care that night at a birthday party and that the birthday party started at 6:00 p.m. Ashley said Kelsey had not been given a bath until stometime after 8:00 p.m. [Known timelines show it was around 10:00 p.m. when Kelsey was bathed.]
Kathie Briggs testified she was taking care fo the birthday party, so she did not change Kelsey's diaper during that time. She also testified that no one else did either. Teri Sigman, Ashley's mother, testified also that no one changed Kelsey's diaper until Ashley gave her a bath that night. Therefore, the evidence at trial shows that Kelsey could have sat---while with the Briggs family---in a dirty diaper for at least two hours that night, if not longer.
In summary, there is no medical evidence to support abuse by the hand of Raye Dawn. Both the Meeker Police Department and DHS ruled out abuse as the cause of the collarbone break, and Dr. Griffen testified taht it is the most commonly broken bone in the body. Second, Kelsey sprained her right ankle under the exclusive control and custody of her aunt. Raye Dawn was at work. Third, the leg fractures date back to a time whenKelsey was under Kathie Briggs' absolute control and custody. Moreover, the Santa Clara Valley Medical Center doctor has reviewed the films and has found that these injuries are not indicative of abuse in a child of Kelsey's age at the time. Finally, the so-called bruises to Kelsey's backside in January, 2005 are most likely the result of her lying in her own feces for more than two hours because none of the paternal family members would change her diaper because they were too busy at a birthday party. For months, Raye Dawn was under the careful eye and watch of numerous individuals, state agencies and her all-intrusive ex-in-laws, the Briggs family. Raye Dawn did not abuse Kelsey.
Proposition 4: A juror who has not heard all of the evidence in the case because they are sleeping is grossly unqualified to render a verdict
Several witnesses who were present at Raye Dawn's trial observed several jurors sleeping intermittently throughtout the trial. One observer reported as many as nine jurors who were nodding off or dozing during the trial. Apparently, the judge had to admonish the jury several times to pay attention and keep their eyelids open. One juror that was identified by at least two witnesses as sleeping continuously throughout the trial was Michelle Reeves. Michelle Reeves reportedly "sat slouched in her seat and wore a NASCAR fleece blanket draped over her body from head to toe." One witness said the "jurors appeared to be watching the trial as if they were in their own living rooms."
"A juror who has not heard all the evidence in the case is grossly unqualified to reder a verdict." People v. Simpkins, 792 N.Y.S. 2d 170 (N.Y. App. Div. 2005 holding the Supreme Court should have dismissed as grossly unqualified the juror who was repeatedly observed sleeping during the trial.) A sleeping juror is arguably more prejudicial to a defendant than an inattentive juror, and courts have held that a juror's inattentiveness is a form of juror misconduct, which may prejudice the defendant and require the granting of a new trial. See e.g. Lester v. Kentucky, 132 S.W.3d 857, 862 (Ky. 2004).
Hasson v. Ford Motor Co., 650 P.2d 1171, 1185 (Cal. 1982) "A jury's failure to pay attention to the evidence presented at trial is a form of misconduct which will justify the granting a new trial if shown to be prejudicial to the losing party. The duty to listen carefully during the presentation of evidence at trial is among the most elementary of a juror's obligations. Each juror should attempt to follow the trial proceedings and to evaluate the strengths and weaknesses of the evidence and arguments adduced by each side so that the jury's ultimate determinations of the factual issues presented to it may be based on the strongest foundation possible. Were the rule otherwise, litigants could be deprived of the complete, thoughtful consideration fo the merits of their cases to which they are constitutionally entitled." "It is said that the misconduct of one juror, so far as it may affect the verdict, in contemplation of law, is the misconduct of all." Brown v. State, 36 N.E. 1108 (Ind. 1894). As evidenced above, a sleeping juror is an uninformed jury member and therefore, he/she is grossly unqualified to render a verdict.
Proposition 3: The jury received evidence outside of court, was not properly sequestered during the trial and in various recesses was permitted to be exposed to media coverage and to conversation with members of the Briggs family
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.
Proposition 2: A special, hired private prosecutor was allowed to participate in the trial in violationi of the law
Patricia High was an active participant in the prosecution of Raye Dawn Smith. Disguised as a "part-time assistant district attorney for Lincoln County," Ms. High signed the Amended Felony Information for Raye Dawn Smith on March 16, 2007. Touted by the news as a "private practice attorney" and "hired prosecutor," Ms. High was hardly a backseat driver at trial but rather an integral part of the prosecution. In fact, Ms. High conducted 80 percent of the trial herself. She conducted voir dire. She took an active role in questioning and cross-examining the majority of the witnesses, and she delivered the State's first closing arguments. Under Oklahoma law, however, Ms. High never should have been involved in the ivestigation or prosecution against Raye Dawn Smith. Moreover, she had no authority under the law to sign the Amended Felony Information.
The laws authorizing the appointment of special prosecutors in Oklahoma was declared invalid in Driskell v. Goerke, 1977 OK CR 123, 562 p. 2d 157.
If one were to assume for argument's sake that Ms. High was a duly authorized part-time assistant district attorney for the Pottawatomie County District Attorney's Office, there is still one problem that cannot be explained away no matter how it is dressed up. And that is, under Oklahoma law, Ms. High cannot serve as a part-time assistant district attorney and a private criminal defense lawyer.
The State contends she is a part-time assistant district attorney. Yet, on March 26, 2007 and August 2, 2007, Ms. High filed entries of appearance in two separate criminal cases in Oklahoma County on behalf of the criminal defendants in those cases. See Oklahoma County Case No. CF-2007-840 and CF-2007-4046. Both of these cases are pending, and Ms. High entered her appearance at a time the State District Attorney's Council and Mr. Smothermon assert she was employed as a part-time assistant district attorney in Lincoln and Pottawatomie Counties. She entered appearances at a time when she was assisting in the prosecution against Raye Dawn Smith. [From Howerton v. State, 1982 OK CR 12, 640 P. 2d 566, 567: A member of the bar who is a part-time district attorney may not be appointed to defend persons within or outside of the jurisdiction in which he serves as assistant district attorney. A district attorney represents the State of Oklahoma to enforce its criminal laws. His first and foremost duty is to represent the State in criminal proceedings, and he cannot represent a defendant where the State of Oklahoma is the opposing party. One cannot adequately serve two masters; these positions are inherently antagonistic and irreconcilable.] As evidenced, the Court did not have jurisdiction to try the case against Raye Dawn Smith because there was no verified Information signed by an executive officer empowered under the laws to prosecute; therefore, her conviction and sentence are, in effect, void.
Proposition 1: The information filed against the defendant was not filed in substantial conformity with the laws of the state of Oklahoma and is void in that it is not signed by a duly elected and qualified district attorney of Pottawatomie and Lincoln Counties
Under the Oklahoma Constitution and Statues, the prosecution of a criminal case must be brought in the name of the State of Oklahoma and must be signed by the duly qualified and elected district attorney for the district attorney for the district in which the alleged offense was committed. On February 24, 2006, an Information was filed and signed in the name of the "State of Oklahoma, County of Lincoln" by Richard L. Smothermon against Raye Dawn Smith for two felony counts. At the bottom of the first page of the Information, Mr. Smothermon signs his name purporting to be the District Attorney for Lincoln County, which is in District 23. This Information is void on its face; it is a false document. Mr. Smothermon may have very well-taken the oath of office as district attorney for the Twenty-Third District, but his legal residence is in Oklahoma County, which is District 7. He is not the qualified district attorney. Pursuant to OKLA. Stat. tit. 19, sec. 215.2(B), to qualify as a candidate for the office of district attorney a person must have been a resident of the State of Oklahoma for (2) years, the district for three (3) months, a duly licensed attorney for five (5) years, and be at least twenty-eight (28) years of age, prior to the date of filing for office. Richard Smothermon was elected to serve District 23 as district attorney in 2002 and 2006. District 23 encompasses two counties---Pottawatomie and Lincoln. Contrary to the statute, Mr. Smothermon was not a resident of District 23 when he filed his Declaration of Candidacy.
The Court in Lincoln County never had jurisdiction to try the case against Raye Dawn Smith because neither the Information or Amended Felony Information were signed by a duly qualified and elected district attorney of District 23 or his legally constituted assistant. Therefore, the Court did not have the jurisdiction and power to move the case to Creek County, Bristow Division on a change of venue motion. The Information issued against Raye Dawn Smith is void and her conviction and sentence are also. The Office of District Attorney of District 23 should be declared vacant and a duly qualified individual appointed as district attorney.
The State of Oklahoma v. Raye Dawn Smith, Case No. CF-2007-134 Defendant's Amended Motion and Brief in Support of Defendant's Motion for New Trial and Request for Evidentiary Hearing.
October 22, 2007
COMES NOW Raye Dawn Smith, by and through her undersigned counsel, Stephen Jones, and moves this Court to grand her a new trial pursuant to OKLA. STAT. tit. 22 sec. 952. Having timely filed her Motion for New Trial on October 10, 2007, and to file a brief in support of a motion for new trial, together with supporting affidavits and other evidence and all parties and counsel having signed an approved order memorializing same and this Court granting same, submits this Amended Motion and Brief in Support to show that her substantial rights under the United States and Oklahoma Constitutions were prejudiced. Ms. Smith will present evidence in support of her motion at the evidentiary hearing concerning the factual matters set forth herein. In support of same, Defendant Raye Dawn Smith shows this Court as follows.
Introduction and Overview
There is reason to believe that the case brought against Raye Dawn Smith may have had sufficient irregularities as to call into question the basic fairness that is the linchpin of our system of justice. And innocent woman has been convicted of a crime she never committed. In addition, she lost both of her children, one to death (most likely a homicide) and the other to the bureaucratic sweep of the Department of Human Services. These miscarriages of justice are, happily, only occasional, but they do happen. In this case, the miscarriage was not accidental or inadvertent. It was the result of a deliberate plan which was instigated from the venomous hatred of the Defendant by her former mother-in-law, the bizarre, erratic and unsettling behavior of her abusive former husband, and insatiable appetite of the hyenas of the media built on sensational and untrue rapid fire "coverage" as "news" so that they shaped the events and public perception, and finally the trial itself. If there is a parallel to another recent case, it would be the Australian woman Lindy Chamberlain, who was convicted in 1982 of killing her 9-week-old daughter, Azaria. There, as we now know all too well, half-baked and overstated incriminated forensic evidence and a profile infused with innuendo - including a media circus, and an unprofessional prosecutor - she was convicted and given a sentence of life. Four years later, she was released. The "evidence" proved to be "cooked" and "unsafe." Americans are, of course, familiar with the story through the talents of Meryl Streep, who played Chamberlain in "A Cry in the Dark." That case, and this one, are cautionary notes on how flawed evidence, perjury, overzealous prosecution, and a public campaign of vilification together with intrusive rampaging media which practiced no restraint of truth-telling, objectivity, balance or fairness can influence unfairly the outcome and skewer justice. Like the plague of locust, the media descended upon all participants and simply ran over those in their path, egged on as they were by a self-seeking and self-promoting ex-husband and ex-mother-in-law.
In summary, what occurred is this. The evidence suggest, quite strongly, that Kelsey Smith-Briggs was killed as a result of the actions of Michael Porter. Mr. Smothermon (the district attorney) has said as much. But, the Briggs family were less interested in Michael Porter than they were in prosecuting Raye Dawn Smith. But, there was little evidence to answer to by Raye Dawn Smith unless Michael Porter became a State's witness. So, incredible as it is to believe, the charged murderer of a two-year-old innocent child escaped justice by false testimony against his wife, the child's mother, and Mr. Smothermon and Patricia High were party to this disgraceful, immoral, illegal, unconstitutional and unprofessional travesty. The evidence was clear that Michael Porter lied about Raye Dawn Smith. He not only contradicted half a dozen different oral and written statements (both sworn and unsworn), but his testimony was not supported by any medical evidence and could not be, honestly. So, he bought himself escape from the possibility of a death sentence, of life without parole of a death sentence, to a sentence that might be modified in the future, or even if not, would eventually result in his release, assuming a normal life expectancy. Mr. Smothermon facilitated this because by so doing, he escaped the political wrath of Kathie Briggs. He had to have known that Kathie Briggs would come after him, as she did Judge Key, unless he went after Raye Dawn Smith. To prosecute Raye Dawn Smith, it was necessary to let Michael Porter walk away from murder of a child.
As a disappointing as these actions were, they do not being to compare with the lack of professionalism of the so-called medical witnesses who egregiously and unprofessionally dishonored themselves by manipulation of the honest medical evidence to support their view of alleged "child abuse." There was, in reality, little evidence that Kelsey Smith-Briggs had ever been abused until the day she died. The photographs of the alleged bruises and marks are not those of abuse. The fractures on her legs are not resulting from abuse nor is the collarbone break.
For Kathie Briggs knew from her own experience and observation that the Department of Human Services always opens a file and creates an investigation on a "referral." So, when she appeared in Dr. Andrew Sullivan's office, she immediately prejudiced the medical history of the child by talking about the mother and her "counseling" in "anger management." Dr. Sullivan having heard the magical words, decided that the child's injuries were the result of possible abuse and took the casts off. No primary treater of the child imagined child abuse. And then, to add to the coup de grace, Dr. Barrett appears, a man who exaggerates his credentials and ability in trials, who attacks physicians personally and professionally who testify to contrary opinions, and who even files complaints against lawyers who have dared to challenge him. Less known is the other Barrett. The carping critic, the angry polemist who writes articles for "peer review" which mainly consist of scathing and unprofessional comments against a host of doctors more experienced, more qualified and more talented than him.
All of these coming together---a benign court, a politically motivated district attorney, an available "assistant," a media in a highly competitive environment and a grandmother who sought to bring herself to the center of the controversy---all resulted in a failure of due process of law.
We end as we began, an innocent woman was convicted of a terrible crime. We cite here the authority and the evidence which leads to no other conclusion than that.
On July 18, 2007, the jury returned a verdict of guilty of one count of enabling child abuse against Raye Dawn Smith and recommended a 27-year sentence of imprisonment.
On above time and date, I officer Roland was dispatched to 527 South Dawson in reference to a domestic. Lincoln County Sheriff's Office advised me that the reporting party was Raye Dawn Briggs. I arrived at approximately 1955 hours. I was the first officer to arrive. Shortly after, two Oklahoma Highway Patrolmen (Jerry Treadwell and James Watson) arrived. Upon my arrival, Raye Dawn approached me and told me what was going on. She stated that she and her husband, Raymond Lance Briggs got into an argument over her not super-sizing his value meal from McDonald's. She said that she was getting ready to go out with some friends and he got really mad and took her clothes and keys away from her. She then stated that he pushed her up against the wall with his forearm at her throat. She said after he pushed her around and yelled at her, she then started walking northbound on Highway 18 to use the pay phone to call for help. While she was walking, her grandmother picked her up and took her to use the phone, then took her back to the residence to wait on an officer to arrive. She stated that between the time she had left and the time she arrived back at the residence Raymond had gotten into his truck and was driving Northbound on Highway 18. I, Officer Roland did observe visible injuries to Raye Dawn Briggs on her neck and collarbone area that were consistent with the type of assault she stated had occurred. At this point, Jerry Treadwell asked her if she wanted to press charges and she stated "yes". The two officers drove around the town of Meeker to see if they could locate him. Approximately five minutes later, James Watson contacted me on the radio and said that he had found Mr. Briggs at the laundry mat in Meeker and needed me to come up there and talk to him. I left a voluntary statement for Raye D. Briggs to fill out and told her that myself or one of the other officers would be back to get more information from her. She said that she would stay at the residence until we came back. I then got into my patrol car and headed to the laundry mat to meet with the other officers. Upon arrival, I noticed that the officers had already had Mr. Briggs in handcuffs and in the front seat of one of hte patrol cars. Officer Treadwell advised me that he had already informed Mr. Briggs of his miranda rights and told him that he was under arrest for domestic assault and battery. Officer Treadwell then took Mr. Briggs out of his car and put him into my car. Officer Treadwell told me that he would go back to the residence and take a voluntary statement and Lincoln County Sheriff's Office. I then told Lincoln County that I was enroute to their facility with Mr. Briggs. I arrived at Lincoln County Sheriff's Office at approximately 2043 hours. Shortly after my arrival, Officer Treadwell arrived with Mrs. Briggs' voluntary statement and other information. I then started going through the process of getting Mr. Briggs booked into the jail. I issued him citation #004422. I charged him with domestic assault and battery. End of report.
