Questionable Nebraska Autopsy Deserves Civil Trial

For over five years a Lincoln, Neb. day care provider felt she deserved an explanation for why she was wrongly accused of felony child abuse. She may now get her day in court.

A pathologist used over the years by a number of Nebraska law enforcement agencies will have to defend himself against accusations he botched an autopsy that lead to criminal charges being filed against a Lincoln women.   

The Nebraska Supreme Court ruled today, Carla McKinney had sufficient cause to have her day in court.  

McKinney ran a day care out her home for more than 20 years.  In 2009  a 6-week-old infant died in her care.  Dr. Matthias I. Okoye performed an autopsy and determined the baby had died of “blunt force trauma to the head.”   The Lancaster County Attorney charged McKinney with felony child abuse resulting in death, but dropped the charges a year later. Medical experts she had hired discovered the baby had actually died of Sudden Infant Death Syndrome, rather than from any injury.  They found the doctor’s autopsy “shockingly” misrepresented the cause of the baby’s death. McKinney sued Okoye for malicious prosecution.  

Okoye successfully kept the case from going to trial in District Court.  Today, the Nebraska Supreme Court said McKinney should be allowed to present her case.  The Supreme Court justices felt there was “evidence of reckless disregard for established pathology procedures could lead to the inference that Okoye was unconcerned with establishing a truthful report.”   

The District Court judge who threw the case out, according to the high court, should have let the evidence be heard so a jury could have decided if Dr. Okoye had acted irresponsibility when he filed the autopsy report with the County Attorney.

The Lancaster County (Neb.) County Attorney's Office ended its contract with Okoye in  2009.  He still serves as president of the business he founded, the Nebraska Institute of Forensic Science.

Drug Courts: Five things you didn’t know

I'd heard about them but knew nothing about them.

The  past couple of weeks I talked to the judges and staff who run Drug Courts and other problem solving courts in Nebraska.  The people who have been through them have a lot to say too.  They’re promoted as good for the participants, good for the community, and a bargain.  The numbers in studies done both nationally and in Nebraska seem to back that up.

They get a HUGE turnout when they hold Drug Court Graduations. (Photo: Lancaster Co. Court)

Here are five surprising things I learned about them:

1. The people who volunteer to take part start out going back to court every week to report back to the judge.  It’s a weird combination of being talked to by a parent, a psychologist, and a cop who happens to be wearing a judge’s robe.   Every participant gets called up for a chat… in public, so there are no secrets. 
   
2. Only 5% of the people who graduate from a drug court program commit another crime within a year later.  Compare that to 32% who re-offended after being released from a state prison.
3. Even the people who wash out of the program are way less likely to commit a crime after they’ve been through part of the program.  Only about 7 out of one hundred reoffend.
4. Keeping someone in drug court is way cheaper than prison or county jail.  Nebraska spends about $70 dollars a day on every prison inmate.  It costs about $45 dollars a day to house and feed someone in a county jail.  Someone in the Drug Court program costs between $20 to $40 a day.  Individual drug courts around the state set up their own budgets.
5. Participants may get a drug test two or three times a day.  That can be at home, or work, or wherever one of the staff ask them to fill up the cup.  About the worse thing a participant can do is try to cheat a drug test.

Click here to check out the story I filed this morning on NET News: 

Is stinking of pot enough of a reason for police to search someone’s car?

The Nebraska Supreme Court didn’t quite come up with an answer today, but the case that started in Aurora, Neb. gives police a little more leeway. 

In 2011 Roger Dalland and his girlfriend were at the law enforcement center at Aurora talking to police about something completely unrelated to drugs.  The police couldn’t help but notice Dalland’s clothes reeked of marijuana smoke.  (As the Court of Appeals judge summarized it: “Given that the odor remained on Dalland the entire time he was at the law enforcement center, we can ascertain that the odor lingered on his person for a substantial period of time.”)   

A search of his car out in the parking lot turned up syringes that later tested positive for meth.  Arrested, convicted, and sent to jail, Dalland appealed claiming the smell of pot is not reason enough to trigger the search of his vehicle, so the needles never should have been allowed in as evidence. 

The Court of Appeals took Dalland’s side.  The judge wrote:  “while Dalland may have encountered it in his vehicle, he may have encountered it any number of ways and in any number of locations throughout the day.”

In today’s ruling, the Nebraska justices did not come flat out and say the smell test was grounds for a search.  (Read the whole opinion here.) There was also testimony from an Aurora police officer, Cpl. Chad Mertz, who said he did the search only after following Dalland out to his car.   

There were conflicting versions of whether Mertz was aware there were syringes to be found before the search (giving plenty of probable cause for the search) or after he’d found them (which means the pot smell was the main reason to poke around car.)

By accepting Mertz’s assurance that he did the search because of the needles AND the pot smell, the Nebraska Supreme Court said the search of Dalland was legal and his conviction stands. 

“Because we find probable cause for the search based on the combined facts that Dalland smelled of burnt marijuana and that he admitted prior to the search of his vehicle to having needles in the vehicle, we do not reach the question whether the odor of marijuana emanating from Dalland was sufficient to establish probable cause.”

The Supreme Court’s closing take on the case seems to leave unresolved the most interesting question:  If you show up at the police department smelling like pot, is that reason enough to bring on a search?

NET News did quite a bit of reporting on the new legal landscape involving marijuana.  Check out our documentary Marijuana Crossroads and links to our radio stories HERE.

Nebraska Ranks #1 In Rate of Black Homicides

The report came out the same day North Omaha held the funeral for 5-year-old Payton Benson; killed by a random bullet fired during a gun battle outside her home.  

A national organization campaigning against gun violence, The Violence Policy Center, released a study claiming Nebraska "leads the nation in the rate of black homicide." The study, based on FBI crime statistics from 2011, the most recent data available, puts the states murder rate for African Americans in the state at a rate of 34.43 per 100,000.  The organization said at the numbers place Nebraska's rate at "nearly two times the national black homicide victimization rate and more than seven times the overall homicide victimization rate nationwide."
(Read the full report here.)

There were states with many more total murders of black residents (Michigan totaled 447 compared to Nebraska's 30) but the study uses the number of deaths in comparison to the population as its basis for the claim.   Other points raised by the Center's study:

• Of the 28 black homicide victims killed with guns, 89 percent (25 victims) were killed with handguns. There were 2 victims killed with firearms where the type of gun was not stated. There were 2 victims killed with knives or other cutting instruments.

• Two black homicide victims (7 percent) were less than 18 years old. The average age was 28 years old.

• For homicides in which the victim to offender relationship could be identified, 78 percent of black homicide victims (7 out of 9) were murdered by someone they knew. Two victims were killed by strangers.

• For homicides in which the circumstances could be identified, 94 percent (17 out of 18) were not related to the commission of any other felony. Of these, 18 percent (3 homicides) involved arguments between the victim and the offender.