Can someone help me please?
I haven't read this entire thread (and quite honestly don't want to take the time to do so right now), but I am reading Dr Ofshe's testimony at the MissKelley trial. Am I understanding that the defense put him on the stand to state that JM's confession was coerced and not valid and the Judge ruled that Dr Ofshe's couldn't tell ther jury this was a false, coerced confession? If this is the case, can someone tell me by what law the Court used to disqualify this information? This seems like a relevant witness to me.
Thanks!!
I'm posting off the top of my head, but IIRC, the defense wanted Ofshe to testify as to the coerced confession based on his experience with such. They sought to get him qualified as an expert on false confessions. Burnett wouldn't do that and therefore disallowed his testimony as he did part of the testimony of Warren Holmes (I think) who was another polygraph examiner (in fact, he was one of the ones who trained Durham) who would have testified that the WMPD polygrapher, Durham, misread the results of Jessie's polygraph. Holmes would have stated that Jessie was only lying about previous drug use and was telling the truth when he said that he knew nothing about the murders. I'm not sure what rule or law Burnett used to disallow Ofshe's testimony, but he disallowed Holmes' testimony because polygraphs aren't admissible evidence in court. The answer about Ofshe might be in the pretrial hearing. Let me see if I can find it.
ETA: It's in the trial. Burnett allowed him to testify, but there were constant objections from the prosecution. Here's the best answer I can give you from the record as to why Burnett sustained the objections:
THE COURT- Well, I'm going to be honest, gentlemen, I'm real interested in knowing what a sociologist is going to testify to that would aid and benefit the jury and what is the scientific basis of that testimony. It seems to me that you've called this witness to give an opinion that the confession was coerced---
MR. STIDHAM: That is---
THE COURT: ---and that it was involuntary.
MR. STIDHAM: That's exactly right, your Honor.
THE COURT: And I think that -- that's a question for the Jury to decide and I'm not sure I'm going to allow him to testify in that narrow framework. I can see him having value testifying that these are common techniques employed by the police overrides one's free will. I found such and such of these conditions prevailing here and things of that nature, or maybe group dynamics of a cult.
MR. CROW: Your Honor--
THE COURT: But I'm not sure I'm prepared to allow him to testify that in his opinion it's coerced and therefore invalid.
MR. CROW: Your Honor---
THE COURT: I mean, what the hell do we need a jury for?
Basically, Burnett doesn't like the idea of Ofshe (who he never would rule was an expert) stating that it was his opinion that Jessie's statement was coerced or false. Burnett said at another point that he had ruled the statement was voluntary and wasn't going to allow a witness to contradict him on the stand. (Can you say, "Ego trip?")
So, IMO, what Burnett was saying was that whether or not Jessie's statement was coerced was something for the jury to decide. He (Burnett) cited no rule or law for his opinion; he just said that was the way it was going to be. He wouldn't allow a witness to contradict him, and he felt if Ofshe said the statement was coerced, it would undermine his ruling that the statement was voluntary.
I
loved the part in the proceeding where Stidham wrote down a question to ask Ofshe, Burnett approved it and then Davis or Fogleman objected to the question that Burnett had approved, saying basically that it was exactly what Burnett had previously ruled he wouldn't allow. Then Burnett, being the idiot that he is, disallowed the very question he had approved seconds before! In short, Ofshe had them by the short and curlies. They knew it, and they used every sort of legal maneuver to try to wriggle out of the situation.