Proposition 7: Hired Prosecutor Patricia High's conduct toward the defendant in closing argument was highly improper and prejudicial
In delivering the first closing argument for the State, Patricia High engaged in highly improper conduct by screaming, yelling and pointing at Raye Dawn Smith. According to observers at the trial, Ms. High was screaming so loudly that she was red in the face. In Mitchell v. State, the prosecutor in his closing argument of a re-sentencing hearing yelled and pointed at the defendant as he addressed the defendant directly. See Mitchell v. State, 2006 OK CR 20, paragraph 101, 136 P.3d 671, 710. The Oklahoma Court of Criminal Appeals held that such conduct "was highly improper and potentially prejudicial."
The presentation of Ms. High's closing argument "was calculated to inflame the passions and prejudices of Raye Dawn's jury." Yelling until one is red in the face and pointing at the defendant numerous times throughout a closing argument is the equivalent of expressing an opinion of "utter contempt and disdain." Such behavior is improper during voir dire and at any point during a trial. Such conduct violated Raye Dawn's constitutional right to due process and a fair trial. See U.S. Const. Amends. VI and XIV and OKLA. CONST. Art II, sect. 7 and 20.
Ms. High used other methods in her closing argument to attack personally Raye Dawn and to associate her with Kelsey's real murderer---the murderer that Richard Smothermon and Ms. High allowed to escape justice. Ms. High referred to Raye Dawn Smith throughout her closing argument as Raye Dawn Porter. The Information was filed in the name of Raye Dawn Smith. Michael Porter and Raye Dawn Smith's divorce was finalized on March 7, 2006---more than a year before Raye Dawn's trial. Raye Dawn was restored to her maiden name during the divorce litigation. This was simply another tactic by Ms. High calculated to inflame the passions and prejudices of the jury.
Proposition 6: The State knowingly solicited false testimony and allowed Kelsey's real killer to escape justice
On October 11, 2005, Michael Porter killed Kelsey. No one else was present in the home. Richard Smothermon, the purported Lincoln County District Attorney, knows this. On February 2, 2007, Smothermon allowed Kelsey's killer to escape justice. Porter chose a 30-year sentence and a conviction of enabling child abuse over a life sentence and convictions for first-degree murder and sexual assault on a minor female child. Porter did not go to trial because he thought he could be found guilty. Smothermon himself stated on the record in open court that he believed Porter murdered and sexually assaulted Kelsey. Porter also admitted under oath that he was aware of the medical examiner's report that cited multiple sexual abuse. Porter claimed that Raye Dawn was responsible for what happened to Kelsey. Smothermon again stated on record in open court that he disagreed with Porter. In putting a convicted felon and liar on the stand, Richard Smothermon also knew he was soliciting flase tesitmony.
On October 20, 2005, Michael Porter was arrested for the murder of Kelsey Smith-Briggs. The Oklahoma Medical Examiner's Office ruled Kelsey's death a homicide. Kathie Briggs and her supporters picketed the office of Richard Smothermon, the District Attorney, until the political pressure grew so strong that, on Febrauary 24, 2006, criminal charges were filed against Raye Dawn. It took Smothermon more than four months to charge Raye Dawn. Smothermon knew that without Raye Dawn placing Kelsey alive at the house when Porter showed up on the afternoon of October 11, 2005, he had insufficient evidence against Porter to convict him of murder. Raye Dawn agreed to testify at Porter's preliminary hearing without any agreement with Smothermon's concerning any charge against her. Prior to Porter's preliminary hearing, Smothermon had Kelsey's body exhumed and a second autopsy was performed by an out-of-state pathologist. Following the second autopsy, Smothermon filed an Amended Information against Porter charging him with murder and sexual assault. Porter's preliminary hearing was held on August 23, 2006, amid the continuing media circus that encircled the Lincoln County Courthouse. News stations were reportedly stationed on every corner of the block with live feed trucks. At Porter's preliminary hearing, Raye Dawn testified that she had never seen Porter phsycially abuse Kelsey. At the conclusion of the preliminary hearing, Porter was bound over for trial for the crimes of murder in the first degree and sexual abuse of a child. His trial was eventually set for February, 2007. It was during this time that the attorney for Porter learned that Porter had corresponded with the Briggs after Kelsey's death. Just five days before Porter was set to go to trial on first-degree murder and sexual assault charges, he reached a plea agreement with Smothermon and pled guilty to enabling child abuse and received a 30-year sentence. The plea bargain meant no one would ever be prosecuted for Kelsey's murder and that Kelsey's probable real killer, Michael Porter, had escaped justice for her death.
Following Raye Dawn's trial, Smothermon was interviewed by KOKH FOX 25 concerning his decision to put Porter on the stand. Smothermon had this to say, "It was a decision I made against the advice of some other poeple that were trying the case with me. There was a great deal of risk putting him on the stand because it put the face of the monster in front of the jury. He's such a huge part of the evidence in the case, I thought it improper for me to not present him to the jury." Smothermon was certainly right when he said it involved "a great deal of risk" to put Porter on the stand. In doing so, Smothermon knowingly and directly violated Rule 3.3 of the Oklahoma Rules of Professional Condcut and Disciplinary Rule 7-102(A)(4), which provides that a lawyer shall not "knowingly use" perjured testimony or false evidence. He also violated Article II, sec. 7 of the Oklahoma Constitution and the Fourteenth Amendment to the United States Constitution. Where perjured testimony is crucial to a jury's decision, the resulting conviction is fundamentally unfair and must be set aside.
Porter's story the day of the murder is simply not plausible. Our consulting experts have advised that the story Porter told on the stand at Raye Dawn's trial simply does not comport with medical science. Smothermon allowed Porter to testify to a series of events on October 11, 2005 that Smothermon knew were absolutely false. Porter testified that it struck him how quiet the house was that day after Raye Dawn left. We seek to prove that the internal injuries Kelsey suffered on October 11 are very symptomatic. Porter's story has no support. If Kelsey had supposedly sustained these injuries before Porter arrived home, as Porter claimed in his testimony, the house would have been anything but quiet. Kelsey would have been curled up in a fetal position. She would not have wanted to move, she would have been crying and screaming. Abdominal trauma is immediately symptomatic from the moment of injury. Contrary to Porter's testimony, Kelsey would not have been in the other room sleeping if she had suffered these injuries at the hand of Raye Dawn before Porter got home. Rather, there would have been a marked change in her condition that would have been evident to any caregiver. Kelsey, who was verbal at the time, would have been crying, screaming and saying, "I'm hurt" or "My tummy hurts." She would have been complaining of pain. Clearly, the house would not have been quiet as Porter asserted in his testimony at trial. He had exclusive control and custody when he murdered Kelsey, and no one else was present at the house.
Ms. Patti Bonner from Comprehensive Home Based Services testified at trial that she was at the home with Raye Dawn and Kelsey on October 11, 2005 from 12:00 to 1:30 p.m. Kelsey had a purple bruise on her cheek, a band-aid on one finger and the little toe on her right foot was red and sore. Ms. Bonner testified taht when she left the house that day Kelsey was alive and Raye Dawn and Kelsey were sitting on the front porch playing with a turtle. It was after Ms. Bonner left that Kelsey had an accident and urinated in her panties before her nap. Raye Dawn put Kelsey to bed wearing only a long black biker t-shirt with no panties or pull-ups on. The two laid down to take a nap together around 2:00 p.m. Porter testified that he left work around 2:35 or 2:40 p.m. and got home around 2:45 p.m. [He told investigators that he left work between 2:15 and 2:30 p.m.] He came home and Raye Dawn woke up. Porter said Raye Dawn offered to go pick up his daughter from school. Raye Dawn leaves the house adn tells him to take care of her baby. It is at this piont that Porter claims he went out to the garage to clean some tires but decides not to and comes back inside the house. After coming back inside the house, he claims he rounded up the laundry in the house, cleaned the kitchen counter and made himself some water. It is here where he says he noticed how quiet the house was. He testified he walked aroudn the sofa to turn on the television and heard a noise from the bedroom---a noise he describes as an exhale, a guttural sound, an unnatural sound. He testified that he ran into the bedroom and saw that Kelsey was blue and not breathing. Porter alleges that he tried to resuscitate Kelsey by asking her what was wrong.
Next, he went into the kitchen and called Gayla. The first person he calls is Gayla Smith, Raye Dawn's mother. He doesn't call the police. He doesn't call 911. He calls the child's grandmother. Gayla told Porter to call 911. Porter said he called 911 after talking to Gayla. Porter said he next placed Kelsey on the kitchen counter and tried to give her CPR. But it is what Porter does next that is truly remarkable and very significant. He says that he takes a pull-up that is sitting on the counter and puts it on Kelsey because he doesn't want anyone to see her like that. Picture that for a moment. There is a 2 1/2 year old child lying on the kitchen counter in a long t-shirt that her mother put on her after she had an accident and urinated in her panties before her nap. The child is reportedly not breathing, and what does Porter do but place a diaper on her. He placed the diaper on her because he had sexually assaulted her and he didn't wan the paramedics to see the evidence. Porter told OSBI investigators taht he circled the living room with Kelsey in his arms. He was circling the living room because he had done this terrible thing and he was trying to figure out what to do. Porter claims that he did not call 911 immediately because he "didn't want to believe how bad it was." Gayla arrived shortly after and took Kelsey.
Gayla testified at trial that Porter called her that day between 3:10 and 3:15 p.m. and said something was wrong with Kelsey. Gayla said that Kelsey squeezed her hand just before she handed her to the responders. The EMT's were dispatched to the house at 3:16 p.m. That gave Porter almost 30 mintues alone with Kelsey---sufficient time to murder and perhaps sexually assault her. Mr. Jenkins, one of the EMT's, testified that Raye Dawn was not at the house when he arrived. Raye Dawn did not arrive at the house with Porter's daughter until after Gayla and the paramedics arrived. Jenkins also claimed that the child's body temperature was still warm to the touch. When the OSBI came back into the house to investigate, the water in the kitchen sink was running. Most likely, Porter left the water running when he put Kelsey on the kitchen island to clean her off after he murdered and sexually assaulted her.
Porter's actions in the days following Kelsey's murder are certainly indicative of guilt. At the hospital, Raye Dawn wanted an autopsy performed because she wanted to know what happened to her daughter. Porter, on the other hand, objected to an autopsy being performed. Reverend Charles Pearcy, who has been a minister for 35 years, testified that he was called to the hospital in Prague on October 11. He observed Porter throwing himself against the walla nd shouting. Reverend Pearcy thought Porter was overreacting and it bothered him that Porter was not comforting Raye Dawn. While Raye Dawn rocked Kelsey, Porter was in the hall yelling out, "Oh, my God!" Reverend Pearcy said that Porter blamed himself and said, "I hope I wasn't too rough with her." Reverend Pearcy thought Porter was feeling a tremendous amount of guilt. Officer Morrison, a Prague Police Officer, testified that Porter said, "She's never going to forgive me," while pacing back and forth outside the hospital. Morrison testified that Porter then fell to the ground and was staring up at the sky, but he was not unconscience. Porter was tekn inside the hospital on a stretcher complaining of chest pains. The physician's assistant testified that she checked Porter for injuries and cleared him. According to the physician's assistant, Porter did not console Raye Dawn.
That night at the house, Porter ate a good meal while Raye Dawn refused to eat. One or two days after Kelsey's death, Porter faked a suicide attempt with a bottle of Tylenol. Raye Dawn's sister found 12-13 pills under the bed. Rachelle Smith testified that Porter got a gun out of the night stand and threatened to commit suicide. Raye's cousin testified that she took Porter to the hospital in Prague after his suicide attempt with the Tylenol, but Porter refused to go inside because Kelsey had died there. She talked him into going to the hospital in Shawnee. She dropped him off and went to pick up Rachelle and when they returned to the Shawnee Hospital, the hospital informed them that no one under Porter's name had ever checked into the hospital. When Porter was being questioned by OSBI investigators about the case, he almost passed out. Porter told investigators that he had never seen Raye Dawn beat Kelsey or ever lose control with Kelsey. When asked by investigators whetehr Raye Dawn could beat Kelsey until she was dead, Porter said, "Never, never. She would never hurt her." The agents asked him this over and over again and Porter always gave the same answer. His words exculpated Raye Dawn, but his demeanor and behavior incriminated himself.
Porter testified under oath before Judge Key that Raye Dawn was a fit parent. Five days before he was set up to go to trial for first-degree murder and sexual assault, he pled to enabling child abuse against his wife, in contradiction to his sworn testimony, his voluntary statements to law enforcements officers and and his written statements. Porter admitted at trial that he left his own children alone with Raye Dawn. Rachelle Smith testified that Raye Dawn took care of Porter's kids five days a week while Porter was away at work. Further, Ms. Bonner, the CHBS worker, testified that it was not unusual for Raye Dawn to be alone with Porter's children. Presumably, if Raye Dawn was an abuser of her own child, Porter would not have left his children alone with her.
The key to all of this miscarriage of justice is that Porter met with Kathie Briggs less than 90 days after Kelse's death. Kathie Briggs had a face-to-fae meeting with Porter, the man accused of murdering her granddaughter. Moreover, Porter and Kathie Briggs corresponded by e-mail at least a dozen times after he was charged with Kelsey's murder. Kathie Briggs is a person who has made it her mission in life to ruin Raye Dawn. Kathie writes on her website that she was just using Porter for information. Undoubtedly, information to use in her quest against Raye Dawn.
Kathie Briggs has an insatiable habit to draw attention to herself, to create drama in which she is the leading lady. Ironically, it was the tragic death of an innocent child that brought a form of emotional and psychic gratification to Ms. Briggs to be the center of attention. Kathie Briggs is too real to be fictional, even for a William Faulkner novel, and Lance Briggs hoped for a financial windfall from his child's death. Both Porter and Kathie Briggs ahd something to gain by meeting and corresponding---Porter got the plea deal of a lifetime and Kathie Briggs got lies to assist her in her conspiracy against Raye Dawn.
Among the most telling facts is Porter's own 7-year-old daughter's statements that she made about her father to her school counselor on October 17, 2005. Porter's daughter told the counselor that she heard Kelsey getting a spanking upstairs and when she looked inside the doorway, she found her father spanking Kelsey "real hard." Porter's daughter said her father spanked Kelsey so hard, it left her bottom "real red." Porter's daughter added that when people were around her dad, he was nice to Kelsey. But when no one was looking, her dad would be mean to Kelsey. Porter's daughter also told the school counselor that she saw her dad hit Kelsey's head up against a brick wall outside on the house. Porter's daughter told the counselor that Kelsey would cry for Raye Dawn and would crawl to Raye Dawn and cling to her legs.
Mr. Smothermon iterated a number of times throughout the trial that he believed Michael Porter murdered Kelsey and that he believed Porter was lying ont he witness stand. Richard Smothermon violated his ethical duty as a lawyer---an officer of the court---by calling Michael Porter as a witness against Raye Dawn. Worse, he proclaimed that he didn't believe him when he denied murdering Kelsey and thoguht he was the murderer. Mr. Smothermon apparently did not notice the inconsistency in his statements (or perhaps he did) for if he believed Porter killed Kelsey, then how was it possible that Raye Dawn could enable his homicidal tendencies for a child already under supervision of DHS, subject to unannounced home visits from caseworkers and the intrusion and curiosity of the Briggs family. For Kelsey to die, it had to be a sudden and forceful outburst. As such, Raye Dawn's conviction should be set aside and she should be granted a new trial. See Hall v. State, 1982 OK CR 141, 650 P.2d 893, 896-99. "The knowing use of false or misleading evidence important to the prosecution's case in cheif violates the Due Process Clause of the Fourteenth Amendment." See Omalza v. State, OK CR 80, 911 P.2d 286, 307. Porter's testimony was not only misleading, it was entirely false. Raye Dawn was not home when Porter murdered Kelsey. Porter had exclusive control and custody of Kelsey at that time. He was alone with Kelsey in the house for almost 30 minutes. Moreover, as evidenced above, his story simply is not supported by any medical science or teaching. Porter's accusations that Raye Dawn was the abuser are an absolute fraud to give Smothermon and the Briggs and to escape life in prison or a death sentence.
On June 15, 2005, Porter testified under oath that Raye Dawn was a fit parent. Porter testified at trial that the first incident of abuse he witnesses by Raye Dawn toward Kelsey was in January, 2005. Yet, five months after January, he testifies under oath before Judge Key that Raye Dawn is a fit parent. He leaves his own children with Raye Dawn five days a week while he is away at work after January, 2005. His own 7-year-old daughter identified him as the abuser, not Raye Dawn. Further, Mr. Smothermon improperly admitted on the record open court numerous times that he did not believe Michael Porter, and he believed Michael Porter to be Kelsey's murderer and the person who sexually assaulted her. Certainly, Porter's testimony was damaging to Raye Dawn and was material to the jury returning a guilty verdict. He was the only witness that testified that he had seen Raye Dawn abuse Kelsey. "When the prosecutor knows or should know that its case includes perjured testimony, a resulting conviction 'is fundamentally unfair and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.'" See Gates v. State, 1988 OK CR 77, 754 P.2d 882, 886. See also Binsz v. State, 1984 OK CR 28, 675 P.2d 448, 450 (failure of the prosecutor to correct the testimony of the witness which he knew to be false denied the defendant due process of law in violation of the Fourteenth Amdendment). "A lie is a lie, no matter what its subject, and if is any way relevant to the case, the district attorney had the responsibility and duty to correct what he knows to be false and elicit the truth." See also Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 342, 79 L.Ed. 791 (1935) (prosecutor's deliberate use of perjured testimony to obtain a conviction violates due process and denies the defendant a fair trial.
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.
