Wtlm1ngcon. Delaware PERMIT NO 697

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PERMIT NO 697
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A Diversified Financial Services Company
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302.575.2000 - tel
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COVEIUROSSITER
Delaware Lawyel
A publication ofDelaware Bar Foundatior.
Volume 26, Number 3
BOARD OF EDITORS
Managing Editor: Richard A. Levine
Hon. Thomas L. Ambro
Teresa A. Cheek
Lawrence S. Drexler
Charles J. Durante
Peter E. Hess
Gregory A. Inskip
Hon. Jack B. Jacobs
Rosemary K Killian
David C. McBride
Edward Bennett Micheletti
Susan F. Paikin
Karen L. Pascale
Blake Rohrbacher
Jeffrey M. Schlerf
Robert J. Valihura Jr.
Gregory W. Werkheiser
Robert W. Whetzel
Loretta M. Young
DELAWARE BAR FOUNDATION
301 Market St./Wilmington, DE 19801
302-658-0773
BOARD OF DIRECTORS
President: Harvey Bernard Rubenstein
Susan D. Ament
Hon. Carolyn Berger
Geoffrey Gamble
Thomas E. Hanson Jr.
Richard D. Kirk
Mary M. MaloneyHuss
Charles S. McDowell
David N. Rutt
John F. Schmutz
Thomas P. Sweeney
Karen L. Valihura
Executive Director
Jacqueline Paradee Mette
DELAWARE LAWYER
is produced for the
Delaware Bar Foundation by:
Media Two, Inc.
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Editorial Coordinator /Peter L. Kerzel
Art Director /Samantha Carol Smith
Subscription orders and address changes
should be directed to:
Chris Calloway 302-656-1809
Requests for advertising information
should be directed to:
Howard B. Hyatt 1-800-466-8721
Delaware Lawyer is published by the Delaware B.,
Foundation as part of its commitment to publish and
distribute addresses, reports, treatises and other literary
works on legal subjects of gen"a! interest to Delaware
judges, lawyers and the community at large. As it is onc
of the objectives of Delaware Lawyer to be a forum for
the free c:xpression and interchange: of ideas, the opinions and positions stated in signed material arc: those of
the authors and not, by the fact ofpublication, necessarily those of the Delaware Bar Foundation or Delaware
Lawyer. All manuscripts are carefully considered by
the Board of Editors. Material accepted for publicarion
becomes the property of Delaware Bar Foundation.
Contributing authors are requested and expected to disclose any financial, economic or professional interests or
affiliations that may have influenced positions taken or
advocated in the articles. That they have done so is an
implied representation by each author.
Copyright 2008 Delaware Bar Foundation
All rights reserved, ISSN 0735-6595
2 DELAWARE LAWYER FALL 2008
EDITORS' NOTE
4
CONTRIBUTORS
6
OBITUARY
9
REMEMBERING
HAROLD SCHMITTINGER
Bruce Stargatt
FEATURES
10 INNOVATIONS IN
POLICE INVESTIGATIONS
Jahn B. Hitchens, John Ubil and Keith Marvel
14 REPEALING DELAWARE'S MANDATORY
MINIMUM DRUG SENTENCING LAWS
Charles M. Oberly III
18 PROTECTING DELAWARE'S
ABUSED AND CHRONICALLY
NEGLECTED CHILDREN
Melanie C. Withers
26 EVOLVING STANDARDS OF DECENCY
Judge Susan C. Del Pesco (Retired)
30 YES, I CAN ...
Joe Hurley
FAll 2008 DELAWARE LAWYER 3
Rosemary K. Killian & Loretta M. Young
child abuse, mandatory sentences, technological changes. But
as the ideas and words sift against one an6ther, what is clear
is that each author has mused about his or her past in the
criminal justice system and each reveals private convictions
that may surprise us.
Susan Del Pesco, no longer a sitting judge, expresses a
feeling of revulsion about some forms of constitutionally
permissable punishment. Joe Hurley, brash and demanding on
the outside, shows an inner softness in his surprising gratitude
to and appreciation of his fellows in the criminal bar. Melanie
Withers has been personally changed by her years ofimmersion
as a child abuse prosecutor and makes clear her frustration
with the status quo. Charlie Oberly has had substantial careers
as both a prosecutor and a defense attorney and has integrated
those experiences into his views on mandatory sentencing examining, supporting and challenging some of the myriad
arguments advanced on that topic. Finally, several state police
officers, participants in the daily theater of the courthouse,
offer us a realistic view of technological changes now affecting
all of us.
Lawyers in the criminal practice have been heard to say that
their brethren in the civil bar get paid well for their boredom.
On a daily basis, the criminal bar enjoys the humor of
unintended consequences that permeates the criminal courts,
the bench and the office~ of the practitioners. The criminal
lawyers gasp with laughter as a man named North E. West
comes before a Superior Court judge for sentencing and the
judge blurts out, "North E. West, you are going south!"
The criminal bar is small so most practitioners treat each
other as they treat the court, with genuine fondness and
habitual thoughtfulness, but with more bluntness. Successes
and failures are noted in the same loud voices. While waiting
hour after hour, day after day, for jury selection or the call of
the calendar, these lawyers share stories, rumors, and fears and
develop a personal closeness with each other, the police, and
witnesses.
This shared humor and genuine courtesy is the glue that
keeps passionate, talented and hardworking lawyers in the
criminal practice. It immunizes them against the often-bleak
circumstances surrounding their efforts and heightens their
joy when they bring justice or liberty to a living person.
Some of those passionate, talented and thoughtful
people have written for this issue of Delaware Lawyer. When
reading the index, the common thread in the articles is not
immediately apparent. The topics are diverse - cruel and
unusual punishment, observations about the Delaware Bar,
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DELAWARE BAR
FOUNDATION
··FOUNDATION.vvAs·.FOUNDEDIN\1~81 B'{• •:.• .• ·• • •.• • •·•. ••• . ii·;•• i.i
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THE••·.DELAWARE.·.• BAR
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THE DELAWARE STATE BARASSOCIATIONASA 501(C)(3}TAX.:.EXEMPT ORGANIZATICJN.' ,
the~fbfession,theFoundationi~uhlishesDelatVar1id8~er.;a~ di~Ltgih{stk~gl~~;·Z,;,i
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Among its contrihutions to
7:•• )"/
IOLTA program. The Foundation has also created an Endow'ment Fwtd (maintained hy the Delawafe :' .' - ;)
Community foundation) designed togrowand g~nera~e tllcome that th~.Foulldatton C~l1US~ toiUrthehts .','. '; . . ';
mission~infludil1g•aidingprOgrams:t~~tPro"i1eleg~1~erVlces.t~ t~rr9()r.an(l~yqlic.~ed~catio~.~p~~t:tht;14
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. !,faflliUes•.of.lawyerS;qusinesses'a114.others'ryiaY:recaghtze:a;I~~y~r:s'orhqw'N'ri'sj~lgn1,ni:Ciri,'rtteit
(retireiie.~ts,a'r111tv~f~~rtes~~:e,tq;)_?r;.may/~ff:~~~;~~,:~~rnOr.i\l)ito4~~~cis'"
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FALL 2008 DELAWARE LAWYER 5
'~J
Judge Susan C. Del Pesco
retired in May 2008 from the Superior
Court of Delaware after serving 20
years. Before joining the court, she was
a partner at the Wilmington law firm
of Prickett, Jones, Elliott & Schnee.
Her contributions to the court included
implementation of the state and the
nation's first electronic filing system,
preparing the civil jury instructions
currently available on the court's Web
page and co-chairing the court's Gender
Fairness Task Force.
Jahn B. Hitchens
a graduate of Wilmington University,
holds international certification from
the Accreditation Commissioner of
Traffic Accident Reconstruction. He is a
member of the National Association of
Professional Accident Reconstructionist
Specialists and a certified accident reconstruction instructor: He has testified
as an expert witness on reconstruction
in numerous Superior Court criminal
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Since 1957
and civil trials. He was the supervisor
of the Delaware State Police Collision
Reconstruction Unit in Kent County for
12 years prior to his 2008 retirement.
Rhodunda until 2008 and currently as a
partner with WolfBlock LLP.
Joe Hurley
received his law degree from the
Dickenson School of Law and has been
a member of the Delaware bar since
1970. Following admission, he served as
a prosecutor in the Delaware Attorney
General's Office until he entered private
practice in 1975. He has specialized
in criminal defense since that time
and has received many honors in the
ensuing years for the degree of skill and
competency he has achieved.
was admitted to the Delaware bar in
1955 and was a founding member of
the law firm of Young Conaway Stargatt
& Taylor. He has served as president of
the Delaware State Bar Association and
the Delaware Bar Foundation, and as
a member of the board of directors of
the American Bar Association. Among
many other honors, he has received
the Delaware State Bar Association's
Distinguished Service Award and the
American Judicature Society's Herbert
Harley Award.
Rosemary K. Killian
John Ubil
joined the Criminal Division of the
Delaware Attorney General's Office
in 1983 following a clerkship on the
Delaware Supreme Court. In 1997,
she transferred to the Civil Division,
where she represented the Delaware
State Police until leaving that office in
2003. During most of her years at the
Attorney General's Office, she was an
adjunct professor at Widener University
School of Law. She is currently in private
practice as counsel to the New Castle
County Ethics Commission.
has been a police officer for more
than 23 years. His current assignment
is as a firearms/Integrated Ballistic
Identification System (IBIS) technician
with the Delaware State Police forensic
firearms services unit. Although his
primary responsibility is as liaison with
all police agencies in Delaware regarding
firearm-generated investigations, he
tests confiscated firearms, recovers serial
numbers and enters information and
reviews information in IBIS and the
Brasstrax Ballistic System.
Bruce Stargatt
Keith Marvel
Melanie C. Withers
has been a Delaware State Police officer
for 20 years and has functioned as an
evidence technician for the past 15 years.
He has been the state police homicide
unit evidence officer since 1996. Sgt.
Marvel has been the lead evidence
officer on more than 120 homicide
investigations as well as other death
investigations. He has taken advanced
training at the FBI Academy and his
additional duties include supervising the
forensic firearms services unit.
a graduate of the Emory University
School of Law, has been a prosecutor
in the Sussex County Office of the
Attorney General since 1989. She has
prosecuted more than a thousand cases
involving child victims of domestic
violence, homicide, and sexual and
physical abuse. She was the head of the
felony trial unit in Sussex County for
seven years and was also the first head
of the Attorney General's child predator
unit.
Loretta M. Young
has been a member of the Delaware Bar
since 1971. Following a Federal District
Court clerkship and employment in
private practice, he became a prosecutor
in the Delaware Attorney General's
Office in 1975. In 1983 he was elected
to the position of attorney general and,
after serving three terms, he returned
to private practice in 1995, first as a
principal with Oberly, Jennings &
is a graduate of Widener University
School of Law and earned her undergraduate degree from the University
of Delaware. She is a former criminal
deputy attorney general, associate at
the former firm of Hudson, Jones,
Jaywork, Williams, & Liguori in Dover
and family court master. She has been
a family court commissioner since
1998.
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By Bruce Stargatt
Remembering Harold Schmittinger
Our friend and colleague, Harold
Schmittinger, passed away earlier this
year. Since Harold was a generation
or two older than most of the current
members of our bar (he was admitted
in 1955, as was I), many of you will
not have had much contact with
him.
Harold looked like an ordinary
guy: average height, stocky, rumpled
even when he was wearing a go-tocourt suit, quite unremarkable in
appearance. He was the opposite of
flashy, and, fittingly, unpretentious
in speech. In court and out of court,
he was a plain talker, always short
and to the point, never using a long
word where a short one would do
the job. And he was self-effacing to
the extreme, always at pains to share credit for achievements
he was entitled to claim for himself, and often shunning
recognition at all.
I smiled when I read the lovely memorial article in the
May issue of In Re written by Nick Rodriguez, Harold's
best friend and longtime law partner. The article included,
as it should have, an outline of Harold's unsurpassed record
of service to our profession. I smiled because Harold, had
he been alive, would surely have asked, "What's the fuss all
about?"
I'm going to add a little to the fuss by briefly reminding
those of us who might remember, and informing those who
weren't around when the Delaware Bar Foundation was
formed, and Delaware Lawyer came into being, of Harold
Schmittinger's special role in the birth of these now-takenfor-granted entities.
Lawyer escrow accounts had long been a bonanza to the
banks in which they were deposited. Interest could not be
ethically received by the depositing lawyer and it was often
impractical to have the interest paid to the client whose
money was on deposit. The result was that banks were the
sole beneficiaries of the interest they did not have to pay.
In the late 1970s, the courts and the bars of a few states
began to study how to address this inequity by requiring that
banks pay interest if they wanted to retain escrow accounts,
but requiring the interest be put to a pro bono use. Delaware
was one of the first to act.
Our Supreme Court, with the help of some of our leading
lawyers, notably including Harold Schmittinger, began to
develop the structure for what has
become our IOLTA (an acronym for
interest on lawyers' trust accounts)
system.
An essential first step was setting
up a corporate charitable entity
which, subject to Supreme Court
oversight, would receive and disburse
IOLTA payments. Not surprisingly,
it was Harold, then president of the
Delaware State Bar Association, who
prepared and filed the Delaware
Bar Foundation's certificate of incorporation in May 1981 and obtained the necessary tax clearance
allowing it to operate as a nonprofit
organization. Some weeks later, it
was Harold Schmittinger who was
selected as the Bar Foundation's first
president and steered it through its early growing-up years.
The Foundation's role in Delaware's IOLTA program has
become one ofour legal community's proudest achievements.
With the active oversight of the Supreme Court, one of
whose members sits on the Foundation's board, the Bar
Foundation has, since its inception, disbursed many millions
to law-related causes. By far the largest beneficiaries have
been providers of legal services to the poor, particularly
CLASI, DVLS and, in more recent years, Legal Services
Corporation of Delaware, to the benefit of thousands of
Delaware's poor and disadvantaged residents.
Finally, because it is topical, here is a personal recollection
about Harold Schmittinger's role in the decision to publish
Delaware Lawyer. The idea of supplementing the bar
association's newsletter with a magazine of broader and
deeper scope had been talked about on and off for years.
But it required a publisher, and it seemed to Harold that the
Foundation was a possible candidate.
There were, of course, pros and cons. At the December
1981 meeting over which he presided, Harold put the subject
on the table for discussion by the Delaware Bar Foundation
board. As I remember the meeting, there was a spirited
discussion in which Harold did not participate. When the
board members finished, there was a long pause. Someone
asked Harold what he thought. Harold said, "Let's do it."
And it was done without a dissenting vote.
Typical Harold Schmittinger. A quiet leader. And a great
man. He'll be missed by all who knew him, and by the many
who only knew about him.
Jahn B. Hitchens
John Ubil
Keith Marvel
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Technology has
overtaken our courts
and law offices,
affecting some of
the tried-and-true
procedures used by
the police.
Just as technology has overtaken our courts and our law offices, it
has also affected some of the tried-and-true procedures used by the
police. This article discusses how three of those procedures have been
affected: accident investigation modernized by computer calculation
and "tattletale" devices in your car; bullets identified in seconds on
a new nationwide computerized network spreading across the country; and DNA comparison extended to almost invisible trace evidence.
Accident Reconstruction
Investigation
Both state and county police have
specialized units that handle serious or
fatal accident investigations. Successful
prosecution requires an accurate calculation ofspeed at the time ofimpact, and
coefficient of friction, more commonly
know as a drag factor of the roadway, is
a crucial element of the formula.
In the recent past, investigators
would use a handheld drag sled or bum·
per gun to assess skidding friction on
the roadway, but this method was cum·
bersome and sometimes inaccurate (up
to 30 percent margin of error). Reconstructionists now use a portable windshield mounted accelerometer computer
with specialized software that precisely
calculates, among other things, average G force (acceleration factor, drag
factor), speed, time and distance. The
VC3000 meets the Daubert standard
and the results are routinely admitted
into evidence at trial.
Computers and drawing software
are also used today, thereby eliminating the need for manual measurements
and drawing accident scenes by hand.
"Total Stations," the same equipment
used by surveyors, is used to accurately
and quickly obtain measurements of
skid marks left on the roadway. Information gathered from the Total Station
is then downloaded and a highly legible
computer-aided drawing is produced.
There is also assistance from something of which most motorists are unaware: If you operate a newer model car
with an airbag, you have a computer
tattletale onboard. Originally designed
to provide car manufacturers and
regulatory agencies with feedback
regarding air bag performance based
on severity of impact, this computerized information is now being utilized by investigators to corroborate
their conclusions and 'Verify their
calculations.
Whenever a sustained impact is
sufficient enough to deploy the airbag, data is recorded on a computer
chip that is housed in a sma1l4-by-4inch metal box. When downloaded,
it may provide an investigator with
information such as the speed of the
car, engine RPMs, the difference
in speed loss from impact to after
impact (an indicator of how violent
the crash was), whether the brakes were
applied and if the seatbelt was in use.
Depending on the circumstances, the
data may include calculations of second
impacts and the interval of time between them.
Ballistics
In March 2007, the Delaware State
Police established the Forensic Firearms
Services Unit. The mission of the unit
was to provide forensic support to all
law enforcement agencies in the state.
In addition to firearm analysis and
test firing of any crime-related firearm
taken into custody, the Forensic Firearms Service Unit is capable of performing analysis on tools, tool marks,
firearm serial number restorations,
distance determination
scene reconstruction.
and
cnme
Firearms examination experts solve
gun crimes by collecting and analyzing
evidence from firearm related crimes.
The Delaware State Police Forensic
Firearms Services Unit test-fires firearms
using a specialized water tank. This
technique allows technicians to obtain
bullets that bear the markings created
in the firearm manufacturing process
because those unique characteristics are
transferred to the bullet when it travels
If you operate
a newer model car
with an airbag
you have a
computer tattletale
onboard.
l
through the barrel. The water prevents
any other impact damage to the bullet
from occurring. The analysis includes
identifying those markings and linking them to a specific firearm, a group
of firearm manufacturers, or to other
firearm-discharge investigations.
Firearms examination historically
has been performed by an investigator
with the use of a comparison microscope, but a newer tool used by forensic
investigators is the Integrated· Ballistic
Identification System and the Brasstrax
Ballistic System. These computer-based
systems permit the storage and comparison of firearm-related evidence images
within a national data base maintained
by the Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF). How-
ever, as helpful as these newer systems
are, they remain only a tool to assist forensic investigators with their cases.
ATF partners with the Delaware
State Police to use the National Integrated Ballistic Information Network
(NIBIN) to bring the Integrated Ballistic Identification System to the Forensic
Firearms Services Unit. The NIBIM
program is in use at 221 sites nationwide,
in 182 participating agencies. All 221
sites have received the Integrated Ballistic Identification System equipment
that permits the agency to create a
digital image of a bullet, enter it into
a nationwide database, interface and
cooperate with other agencies. The
system also compares samples and
assigns a confidence rating. A trained
and experienced examiner, aided by
a digital comparison program, makes
the final determination.!
Anytime a weapon is seized, abandoned or found, technicians testfire it and enter bullet and casing
evidence into the Integrated Ballistic Identification System. The new
images are automatically compared
against existing entries. Local agencies also collect any projectiles and
cartridge casings at all crime scenes
and submit them for imaging. The advanced technology of the Integrated
Ballistic Identification System allows
investigators to keep numerous open
case files with over one million exhibits
without taking up large storage areas.
The expansive database can be searched
in minutes rather than the years it would
take to perform a manual search, and
agencies across the nation can participate in this program to link related gun
crimes quickly and efficiently.
ATF not only offers grants for Integrated Ballistic Identification System
equipment but also provides training
courses, regular upgrades, and service
for partnering agencies. In return, the
agency partners agree to support the
program with adequate staffing and
resources and to enter as much gun
crime evidence as possible. Every
partner agency continually adds to
this digital database since frequent
and consistent entry is crucial to the
success ofthe program. Law enforcement agencies that do not have the
Integrated Ballistic Identification
System equipment are encouraged
to take their evidence to another
coordinating agency. In Delaware,
all law enforcement agencies use the
ballistic services of the Delaware
State Police Forensic Firearms Services Unit. Since the ATF and its
partner agencies began using this
technology, more than 1,250,000
pieces of crime scene evidence have
been entered and over 19,000 "hits"
have been logged. 2
DNA and Recent Advances
DNA, or deoxyribonucleic acid,
refers to the genetic material encased
in the cells of our bodies. With the
exception of identical twins, everyone has a unique DNA "fingerprint."
We inherit halfofthe DNA from our
biological mother and half from our
biological father. Just as you've seen
on television, a single hair root, saliva, blood, semen, sweaty shirt, fingernail clippings, urine, chewed gum,
used tissues and licked stamps can be
used for DNA testing. 3
Alec Jeffreys, an English geneticist,
first discover~d DNA typing or profiling in 1985. Dr. Jeffreys found that
DNA sequences were repeated over
and over in a series and that the number
of repeated sections present in a sample
differed from one person to the next.
He developed a systemized examination technique to determine the length
and variation of these DNA repeat
sequences. These DNA repeat sequences became known as VNTRs,
which stands for variable number of
tandem repeats. The technique used by
Dr. Jeffreys to examine the VNTRs was
stained piece of carpet and backing
seized from the rear floor area of
Pennell's van that was obtained pursuant to a search warrant. 5
Firearms
examination experts
solve gun crimes by
collecting and
analyzing evidence
from firearm
related crimes.
Today, DNA samples are not sent
off to private labs for testing. The
Delaware Medical Examiner performs all DNA testing for criminal
prosecution cases right in his office.
After detectives decide what evidence to collect from a crime scene,
the evidence is sent to the ME's Office where a DNA profile is created
from that sample by removing a
DNA molecule from a cell, purifying it, and processing it to reveal the
unique pattern.
called restriction fragment length polymorphism (RFLP) because it involved
the use of a restriction enzyme to cut
the regions of DNA surrounding the
VNTRs. Since that ti'me, human identity testing using DNA typing methods
has been widespread. 4
To easily visualize this, think
about a chicken egg that has the
white and the yellow nucleus. The
cell is "broken" open with a detergent that encourages the release of
the contents of the cell (proteins,
fats and DNA). The contents are
then purified to isolate the DNA
from the other material. Years ago,
testing required quantities of DNA
material at least the size of a nickel
so that the sequences could be analyzed for repeating sections, but
thanks to modern technology, only
a mere pin drop is needed now. A procedure called polymerase chain reaction
(PCR) makes copies of the DNA. Ifyou
subject the sample to the PCR 40 times,
it essentially increases the amount of
DNA to the point where there is sufficient material to analyze.
DNA evidence has been utilized in
criminal prosecutions since the mid1980s. DNA was first admitted into evidence by the Delaware Superior Court
in the 1989 multiple-count, first-degree
murder trial ofSteven Pennell. It was an
exciting time for prosecutors, defense
attorneys and certainly for Cellmark
Diagnostics. Cellmark, which was a division ofICI Americas, Inc., performed
the DNA match analysis on a blood-
There are two types of DNA: nuclear
and mitochondrial. Nuclear DNA is the
investigator's choice because it encodes
more of the genome and is therefore
highly reliable for purposes of identification. If you think of the chicken egg
example, you would be focused on the
yolk - the nucleus - which contains
the DNA from both parents as well
as other lipids and proteins. This type
of DNA could be found in any bodily
g, ¥ Pil 5$4%:*:0· h k
fluid sample, hair, skin, tissue, etc.,
that has not been degraded by time,
chemicals or atmospheric conditions
such as heat, sunlight, mold, bacteria or decay.
When this nuclear DNA is not
available due to degradation, investigators may fall back on mitochondrial DNA, which is found in
the energy-producing mitochondria
of the cell. Using the chicken egg
model, this would be the white of
the egg. This type of testing is most
often used in cold cases or where
the only available sample is a bone,
a tooth, or other compromised genetic material.
Mitochondrial DNA can exclude
or include a suspect, bu~ cannot positively identify a perpetrator because
it reflects only the mother's DNA
material. For example, if investigators found a mass grave, they could
determine if the victims had maternal blood relationships but could
not determine whether it was Mary
Doe or Jane Doe. Although the genetic material may be quite old and
nuclear testing is no longer feasible,
it is still possible to completely rule
out an individual as a perpetrator.
Some recent post-conviction exonerations were made possible due to mitochondrial DNA testing.
Hopefully, you bought stock in
Bode Technology. It is the developer
of another new breakthrough that enables investigators to collect DNA that
isn't obvious to the human eye. "Touch
DNA" allows investigators to recover
skin cells shed from a perpetrator's
hands that are left behind on a victim or
victim's clothing. This fragile evidence
was previously very difficult to detect
because it doesn't leave a stain and is
hard to preserve. The new process relies
on the same reliable DNA testing procedure used to admit evidence for 20
years, but collection techniques are crit-
iQ
m
the speck of blood. Although at this
point in time this evidence cannot
identify the killer, it does link the
blood speck to the person who removed JonBenet's long johns and
eliminates her father and brother. It
is not currently identified to anyone
in the Combined DNA Index System (CODIS).6
DNA was first
admitted into evidence
by the Delaware
Superior Court in the
1989 multiple-count,
first-degree murder
trial of Steven Pennell.
ical and include swabbing, lifting with
tape and scraping. The real challenge is
finding the location of the samples or
having a good intuitive sense based on
the nature of the crime and other details where the perpetrator would have
likely touched the victim's clothing.
In the JonBenet Ramsey case, shortly after her death, a very small speck of
male blood was found in JonBenet's
panties. Its mere presence was inconclusive because it could not be determined
how it got there, However, the speck
of blood was not a DNA match to her
father or brother. More recently, skin
cells were found around the waistband
of her long johns and nuclear DNA testing showed those cells to be a match to
The federal government, states
and counties are constantly adding
the genetic code data of convicted
offenders to CaDIS. Laws vary
from state to state regarding who
can be compelled to provide a genetic sample and be added to the
databank. Delaware law authorizes
the Department of Corrections and
Probation and Parole to arrange for
a DNA sample to be taken from a
person convicted of certain statutorily enumerated crimes. 7 The Chief
Medical Examiner's Office receives
the sample, analyzes it and enters it
into CaDIS. This growing bank of
information is used 24 hours a day
by law enforcement agencies nationwide to identify or exclude suspects
and serves to protect all law-abiding
residents in this country.•
FOOTNOTES
1. Bureau ofAlcohol,Tobacco and Firearms,
NIBIN Program (April 24, 2007), available
at http://www.nibin.gov/nb_news.htm
2. id.
3. Krishan Vij Biswas, Basics of DNA and
Evidentiary Issues, (Jaypee Bros. Medical
Pub. 2005).
4. Alec Jeffreys Interview: A Pioneer on the
Frontier of Human Diversity, Science in
School (Dec. 20,2006) available at http://
www.scienceinschool.org/2006/issue3/
jeffreysj.
5. State v. Pennell, 584 A.2d 513 (Del.
Super. 1989).
6. Lisa Ryckman, "DNA Points JonBenet
Case in New Direction," Rocky Mozmtain
News, July 10, 2008.
7. 29 Def.e § 4713.
5
h g
Repealing
Delaware's
an~aior
Drug
Mandatory
drug sentencing laws
have done little to
curb the scourge of
drugs or the crimes
associated with
their sale and/or
addiction.
On June 30,2008, Delaware's General Assembly ended its session without
any action on H.B. 71, a bill that would eliminate mandatory minimum
sentences for drug offenses. Although the Republican-controlled House
in 2007 voted 26-13 in favor of the legislation, the bill was not released
in the Senate and died without a vote or a full discussion on the merits.
This article, however, is not about the Senate rules. It is written to provide
the reader with a historical perspective and the political realities of dealing
with drug sentences.
r?
•. '· r.·.'·. rom 1975 ~Jntil ~he end of 1994,
h! I was at vanous tImes a prosecutor
;1 with the Attorney General's Office,
!
.j the State Prosecutor and Delaware's
attorney general for 12 years. Throughout this period of time, my foremost
responsibility was to uphold the laws of
this state and to provide fair and evenhanded justice. For the most part, this
meant prosecuting those who committed criminal acts against the public. In
many cases, my responsibility was to do
what was necessary so that deserving
offenders paid their debts to society by
serving prison sentences. To ensure just
punishment, I supported then, and still
support, mandatory sentences for numerous crimes, such as robbery, home
burglaries, rape and various other sex
offenses, homicides (including those
committed by motor vehicle), and the
possession of firearms and weapons
during the commission of a felony. This
list is not meant to be all-inclusive. I
believe mandatory minimum sentences
have their place in the criminal justice
system.
My support of minimum mandatory
sentences does not extend to drug offenses. For more than 36 years (I became a member of the Delaware Bar in
1971), I have listened to a never-ending
"war on drugs," both locally and nationally. These "wars," which I submit
are little more than election rhetoric,
have, in my opinion, been a failure. The
City of Wilmington, before the end of
July 2008, has experienced almost as
many homicides in seven months as it
did in the entire year of 2007. 1 The
vast majority have some relation to
drugs.
There can be no disputing the
fact that drugs are a menace to our
society and lead to numerous other
crimes. The mandatory drug sentencing laws, however, have done
little to curb the scourge of drugs
or the crimes associated with their
sale and/or addiction. As will be
noted below, the current status of
our drug sentencing laws leads to
arbitrary decision-making and vests
too much power in the hands of
prosecutors and the police. Delaware's judiciary is widely recognized
as one of the best, if not the best, in
this country. The men and women
serving as our judges in the Superior Court, where all the minimum drug
sentences are imposed, have both the
wisdom and experience to ensure that
justice is fairly administered and that
the bad guys are incapacitated.
When the General Assembly first
passed the statute creating minimum
mandatory sentences for drug offenses
in the early 1990s, there was one dissenting vote from the combined House
and Senate. The legislature established
"bright lines" and attached mandatory
terms of imprisonment based upon the
amount of the particular drug. For example, if someone was found in possession of five or more grams of cocaine,
but less than 50 grams, a mandatory
three-year penalty was set for "trafficking" in cocaine. If the person had 50 to
100 grams, the minimum mandatory
sentence was eight years. For quantities
in excess of 100 grams, the penalty was
a minimum mandatory 15 years.
Because I believed the passage of the
new law would vest too much power
with deputy att~rneys general and the
police, I met personally with then-Gov.
Michael Castle and advised that he
should veto the bill. The governor, understandably in light of the near unani-
I believed then and
still believe that
drawing a bright line
based on the quantity
of drugs means
the law should be
enforced as written.
mous vote of the legislature, told me
he felt he must sign the bill into law.
I advised that when he did, I intended
to enforce the law as written. Anyone
in possession of five grams of cocaine
would be prosecuted for that offense
and would receive the minimum mandatory sentence, of three years. I was
not going to make exceptions because
someone was a c~llege student or had
a good job. The law would be and was
uniformly enforced. Within a year or
so, the General Assembly passed a resolution stating that the attorney general
should use discretion in determining
who should or should not be subject to
the minimum Ipenalties. The law was
not amended. The General Assembly
had received complaints that young
people possessing five grams were actu-
ally going to prison. Wasn't that what
the General Assembly wanted in enacting the law?
I believed then and still believe that
drawing a bright line based on the
quantity of drugs means the law should
be enforced as written. Permitting many
different prosecutors spread out over
three counties to make discretionary
calls as to who should be relieved of the
mandatory prison term inevitably meant
some people possessing over five
grams of cocaine would be spared
prison, while others similarly situated would not. I firmly believed that
any attempt to set a policy, such as
not subjecting first-time offenders to
the minimum sentence, would be
an impermissible substitution of my
will for that of the General Assembly.
Moreover, it was, and is, widely
known that some offenders can
avoid conviction of minor offenses
because they can afford counsel.
Others not as well off might have
accrued a minor record simply because of a lack of resources. Thus,
the well-off defendant might avoid
prison while the less-fortunate, but
no less deserving defendant receives
a prison sentence. I left office in early 1995. My successor did implement
a policy permitting greater discretion,
as suggested by the General Assembly.
Had I chosen not'to step down as attorney general, I probably would have
modified my opposition to implementing change by policy and permitted
carefully exercised discretion.
During the past several years, the
debate over mandatory drug sentencing
laws has increased. A few years ago, in
a compromise with the attorney general's office, the legislature decreased the
number ofmandatory years. Now, small
amounts of cocaine result in a two-year
minimum mandatory sentence. For
100-plus grams, the law mandates an
eight-year minimum sentence. Some
other jurisdictions have modified or
removed mandatory sentences for drug
offenses.
Notable leaders, such as former FBI
Director Louis Freeh, former drug czar
Barry McCaffrey, four u.s. Supreme
Court Justices (including the late Chief
Justice Rehnquist), former Delaware
Supreme Court Chief Justice Veasey,
current Justice Ridgely and several
other current and past judges of the
Delaware Superior Court, have all stated their support for reform of our
current law. Interestingly, none of
these individuals are elected politicians. That should be of little surprise since individuals running for
office are loathe to support legislation that might be construed as
branding the candidate as a liberal
or soft on crime. In the hst election for attorney general, both the
Republican and Democratic candidates vied for support of the police
community. Not surprisingly, both
candidates went on record opposing
any modification of the mandatory
drug sentences.
The police, understandably from
their perspective, want the power
to determine the outcome of cases. That desire, however, does not
equate to sound public policy. In
fact, I believe it vests far too much
power with the police and, subsequently, the prosecutors. What has occurred
is a shifting of the scales of justice. The
able and respected judges of the Superior Court are essentially marginalized
while the prosecutors and police confuse their roles by becoming the ultimate sentencing authority.
Both sides of the debate are attempting to use statistics to support their respective positions. In my opinion, both
sides are misguided in their use of statistics. Again, calling upon my 36 years
of experience in the criminal justice system, I am extremely reluctant to argue
that a change in the law will result in
fewer incarcerations and some undeter-
mined cost savings that could better be
used elsewhere.
The prison population has steadily
increased over the years and is likely to
continue to do so. Similarly, the statistics used by the police are misleading; it
is interesting to note that a report prepared by The Delaware Police Chiefs'
Council, entitled "The Truth About
Delaware's Mandatory Sentencing:
Protecting Public Safety," states that
I am extremely
reluctant to argue that
a change in the law
will result in fewer
incarcerations and
some undetermined
cost savings that could
better be used
elsewhere.
only 2 percent of drug cases (130 out of
6,300 drug arrests in 2005) resulted in
mandatory time. If the issue before the
General Assembly only involved such
a small number of cases, there would
likely be no effort to amend the law.
The impact of the mandatory drug sentencing laws is far more pervasive and
undermines the traditional separation
of the police, prosecutorial, and judicial
functions.
More importantly, while such sentences have, as far as I am concerned,
had no noticeable impact upon the
number of drug crimes, vesting the
power of incarceration with the police
and prosecutors leads to other unin-
tended results. Without any likelihood
of conviction, spouses and other parties
are sometimes charged with trafficking
offenses and threatened with mandatory incarceration unless they cooperate
with the police.
The bail guidelines set the amount
of bail based upon the number of grams
($2,000 secured per gram) involved in a
case. More than one person can be and
is frequently charged with possessing
the same illegal drug. Thus, when
a dealer justifiably has bail set at
$200,000 for possessing 100 grams
of cocaine, his girlfriend and mother
of two young children may very well
find herselfincarcerated and charged
with trafficking cocaine, with bail
set at an unattainable level. Prosecutors, some relatively young and
without years of experience, can become pawns to the desire of certain
police officers and in reality become
the final sentencing authority dealing with defense counsel. With three
counties and numerous prosecutors
involved, there is no practical way to
monitor whether justice (the actual
pleas agreed upon) is evenhandedly
dispersed.
Of the many crimes dealt with by
the Superior Court, drug offenses
are unique. A drug offense is not
the same as an armed robbery. Drugs
spawn other crimes and lead to addiction and crimes associated therewith.
Standing alone, drug usage and addiction are a medical and community issue
and should be dealt with appropriately
by experienced judges having access to
the entire history of a defendant, including past criminal history.
If drug offenders commit other
crimes in connection with their activities, a whole array of penalties already exists, some carrying mandatory
sentences, that will effectively incapacitate those offenders needing incarceration. Restoring sentencing discretion to judges for drug offenders will
neither undermine effective police
work nor prevent the imposition of
long sentences.
Delaware's laws provide many other
avenues upon which the State and/
or the police can affect the sentencing
of any particular individual. These avenues include:
1. The charging decision. Rarely are
drug offenders charged with one offense. Possession of even small amounts
of drugs usually results in multiple
charges, each carrying a separate sentence.
2. All sentences in Delaware must be
consecutive to one another. The state
and the police can decide what charges
to pursue and seek cooperation where
necessary.
3. Delaware law permits the state to
recommend reduced sentences for offenders who provide substantial assistance to investigative officers.
4. Delaware's habitual offender statute provides for up to life sentences for
three- or four-time convicted felons.
Prosecutors often use these statutes to
obtain pleas and agreed-upon sentence
recommendations.
5. Many violent felonies carry mandatory sentences. Crimes, such as robbery first-degree and possession of a
firearm during the commission of a felony, carry three-year minimum mandatory sentences. Burglary second-degree
carries a one-year minimum mandatory
period of incarceration. Offenses such
as rape, kidnapping, murder and other
sexual offenses carry long minimum
sentences, up to life.
These examples support the argument that effective law enforcement
and the public welfare will not be eroded by restoring to the Superior Court
judges the sentencing of drug offenses
without minimum mandatory sentences. The endless debate, competing statistics and false promises put forth by
both those for and against mandatory
drug sentences obscure the real issue,
which is who should possess the final
authority to determine the appropriate
sentence for a drug offense. I submit
it is not the prosecutors or the police.
We invest great authority in our judiciary and we can trust it to individually and collectively render fair and just
sentences. This I know from personal
experience.
As attorney general of Delaware, I
criticized decisions of the courts (the
Superior Court, Court of Chancery
and Supreme Court) perhaps 20 or so
times over 12 years. The frequency of
public criticisms leveled against the
Superior Court was certainly less than
one a year. When the thousands of
cases adjudicated and the thousands of
sentences imposed in those years are
considered, it is remarkable how effective our judges are in rendering just
sentences. Leniency has never been the
Lat~
- ~'. ~
I.,
tag associated with them.
While judges are likely to make some
errors, I can confidently state their errors will be less than those made by
prosecutors and the police. Justice
works best when each branch of the
criminal justice system does its own
job. The police investigate and arrest.
The prosecutors charge and dispose of
cases. The judges then impose appropriate sentences. When the system breaks
down, the legislature should step in and
make corrective changes. Now is the
time to repeal mandatory sentences for
drug offenses. •
FOOTNOTE
1. Shooting incidents in the City of Wilmington numbered 69 as of Aug. 20, 2008,
compared to a total of 87 for the entire year
of 2007. Wilmington, De., Resolution No.
3018 (Aug. 21, 2008).
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.....:. . admissikn~~1mingi6.¥tiehds.org
Protecting
Delaware's I'
i~u$e~
Although we are
moving in the right
direction, change
is coming too slowly
since advances
seem to occur only
after a child dies.
June 1,2008 marked my 19th anniversary with Delaware's Department of
Justice in the Criminal Division. Early in my career, I realized I was drawn
to those cases which dealt with the weakest and neediest victims: women
and children who had been abused by loved ones. By 1994, I was prosecuting all the domestic violence cases in Sussex County and I continued to try
those cases until March 2007, when I joined the attorney general's Child
Predator Unit. During those 13 years, my caseload grew to include all of
the physical and sexual child abuse cases as well. My career put me into a
position where I could see the efforts being made to eradicate the most
shameful aspect of our society: the pervasive and overwhelmingly common
abuse and chronic neglect of our children.
rom my point of view, although
we are moving in the right direction, change is coming too slowly
since advances seem to occur only
after a child dies. Following a death, all
of the public and private agencies involved with the child's family perform
internal examinations, but the changes
made seem to be just small movements
to address specific errors made with
F
18 DELAWARE LAWVER FALL 2008
that particular dead child. Rather than
waiting for the inevitable next child to
die, why aren't we taking some drastic
measures in advance?
It is crucial that everyone of us understand the truth - child abuse is
chronic and pervasive and occurs primarily in the familiar home setting.
According to the American Academy
of Pediatrics, more than three million
reports ofchild abuse are made each
year in this country.l
Yes, the bogeyman who grabs
kids out of their beds and off their
bicycles does exist, but these kidnappings are, thankfully, extremely
rare. The monsters we need to recognize are the ones who are around
our kids every single day. We teach
our kids not to talk to strangers,
not to get in cars with anyone who
doesn't know the special password
and not to fall for tricks such as,
"Can you help me find my puppy?"
Then we let our little girl spend the
night at a friend's house without
first determining who else lives or
is visiting there. We don't ask the
daycare provider who stays with the
children when she has to run out
to a doctor's appointment. And we
routinely let the mentally limited,
drug-addicted teenager leave the
hospital with her newborn baby
simply because she is the mother.
Most child abuse monsters live
with their victims. Sexual abuse
of children is just mind-blowingly
commonplace, inflicted by a wide
range of perpetrators: dad, stepfather, mom's new guy, brother, uncle, in-law, grandpa, great-grandpa,
step-grandpa, neighbor, minister,
teacher - I could go on ad nauseum. Although I have prosecuted
them all, father and stepfather are
the most common offenders, probably
because they have the greatest access to
and have the greatest degree of power
over the child. 2
Frequently, they also physically
abuse the child's mother. For whatever reason, domestic abuse and sexual
abuse seem to go hand in hand. 3 In
my two decades with the Department
of Justice, I never had a case involving
a rape or serious physical assault of a
child that was committed by a stranger.
Not one. The defendants in my cases
were always either family members,
friends of the family or people to whom
Children are
often forced to
live in conditions
so horrific we'd
object to letting
an animal live
with them.
the parents entrusted the care of their
child.
In physical abuse cases, such people
are still the primary offenders but we
have to add mom to that list as well. 4
In my experience with physical abuse,
most of the children who were injured
or killed were subject to harsh so-called
"discipline" - severe shaking, the use
of an instrument, a punch with a closed
fist, often just for crying or soiling their
underwear or their beds. Even though
Delaware law prohibits the use of dangerous instruments when disciplining
a child, it is common to hear people
threaten to assault their children or
brag about the use of belts or sticktype objects as a form of control. 5
The third type of abuse, chronic
and profound neglect, is even more
common than physical and sexual
abuse. 6 Far too many parents can
barely take care of themselves. Poor
parenting in childhood, lack of education or a decent job, and drug
and/or alcohol addiction are part of
the mix that is present in most neglect cases. Neglect is too often the
foundation from which the physical
and sexual abuses grow. Children
are often forced to live in conditions so horrific we'd object to letting an animal live in them. These
children, perhaps even more so than
the actively abused ones, die a slow
- and sometimes literal - death,
but more often it's the death of
their spirits, their physical strength,
their mental acuity and their dream
for a future?
Child after child after child
comes into a world filled only with
pain and without compassion. It
should come as no surprise, then,
that these young victims act out
against the society that didn't care
about them. And parents - they,
too, become forgotten. Many end
up in jail, some end up on welfare,
others fill the ranks of deadbeat
dads, but most live in isolated desperation repeating the pattern of their
childhood. This is why Family Court
is one of the most desolate places on
earth. Most prosecutors will tell you
it's their least favorite court assignment
because in that building, more than
anywhere else, we see the past and future unfolding simultaneously before
our very eyes.
We witness a never-ending parade
of parents dragging in their offspring,
one by one, as they age. These children, who've never heard a kind word
or been given any reason to hope for
or expect anything, get arrested at first
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for minor offenses such as fighting in
school but then later for more and more
violent crimes. Right in front of us, the
parent sucks the soul out of their child
as they lean back in their chairs, stare at
their angry and abandoned child, and
announce to the court, "You take him.
I'm done with him. I don't want him
in my home anymore." The child, no
matter how contrite, depressed or violent, flinches perceptibly and shrinks
away. The child understands that he or
she no longer has a home or the hope
ofa family.
I know from being a witness
for the past 20 years, that we' have
many young people going into our
jails who wouldn't be there but
for the abuse and neglect inflicted
on them at home. Another frightening part of this equation, which
clearly concerns all of us, is that the
rate of violent crime perpetrated by
children is growing rapidly.8 Some
teens carry handguns as readily as
wallets. These kids include an army
of young people who have babies
out of wedlock whom they don't or
can't support. 9 They generally have
inadequate educations because our
school systems simply cannot contend with so many children who
need so much. Many simply drop
out as soon as they can, and jobs
with a living wage are beyond their
reach. It shouldn't be a surprise to anyone that many choose to use and/or
sell drugs. And the cycle continues.
It's time to acknowledge we are
moving too slowly to end this cycle. A
more focused and aggressive campaign
must be mounted, similar to those
waged against drunk driving, domestic violence and, more recently, child
pornography. In the 1980s, the big
push was against drinking and driving.
Mothers Against Drunk Driving grew
into a huge political force to which
elected officials responded. New laws
were written moving drunk driving
from a misdemeanor to a felony offense
with mandatory consequences upon
repetition. The rate of drunk driving
went far down.
In the mid-'90s, domestic violence
came under the public microscope. For
centuries regarded as a non-criminal
"family matter," the federal government, pursuant to U.S. Sen. Joseph
Biden's Violence Against Women Act,
began pouring money into prosecutors'
offices and police departments all over
the country. Funds were provided for
Amore focused and
aggressive campaign
must be mounted,
similar to those waged
against drunk driving,
domestic violence and,
more recently, child
pornography.
training, which became mandatory in
Delaware for everyone in the system, to
educate the players to understand and
respond appropriately to these predominantly female victims who were very
reluctant to prosecute their abusers. As
with drunken driving, sentences were
increased and a few mandatory components were added. Today, domestic
abuse convictions not only negatively
affect one's right to have custody of
children and to own firearms but are
universally acknowledged in this country to be serious crimes. 1O
In the late 1990s, notification statutes became law, the beginning of our
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efforts to keep track of sex offenders. ll
That effort was followed closely in
this century by the ongoing campaign
against the vast number of images of
child sexual abuse flying around on the
World Wide Web. It pleases me to be
able to say that one agency which has
jumped into this latest fight, with both
barrels blazing, is Delaware's Department ofJustice.
My current boss, Attorney General
Beau Biden, campaigned on this issue in 2006. As a result of his strong
feelings about the rampant sexual
abuse of children and the spread of
child pornography, his first official
act was to create a Child Predator Unit, whose sole purpose is to
catch and successfully prosecute
the people who possess, create,
and/or distribute images of child
sexual molestation. I was honored
to serve as the first deputy attorney
general assigned to this new unit.
His next radical move was to create a new and more efficient Family Division that includes both civil
and criminal deputies involved in
various facets of problems specific
to children. The creation of these
two new entities, coupled with the
attorney general's successful campaign to get the legislature to enact
a version of the federal Adam Walsh
Act in our state, establishes him as
the first Delaware attorney general to
create specific units to target the criminals who are hurting our children. 12
I know I'm not the first person
to point out the obvious. There are
many good people in Delaware who've
worked tirelessly to bring about change
and fix broken parts of our child welfare and justice systems. Through no
fault of their own, most likely because
the expense as well as the historical
reluctance of any government to "interfere" in the process of parenting,
their efforts haven't produced the results which our children need. They
continue to be abused, neglected and
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murdered at appalling rates.
I have had the relatively unusual
opportunity to see these child victims grow up and become involved
with the criminal justice system after
years spent in an abusive home. They
come in to my office both as victims
and as defendants. I have had involvement with their attorneys, their arresting officers, their family services
workers, their mental health providers,
their probation officers, their nurses,
their doctors, their teachers and their
judges. I have discussed their cases
with all of the concerned people who
sit on the various confidential entities
and groups established to combat child
abuse, such as the Child Advocate's
Office, the Child Death, Near Death,
Stillbirth Commission and the Child
Advocacy Center. 13 Nevertheless, an
undiminished flow of abuse cases continued across my desk.
As I see it, we have two choices: We
can wait until the abused or neglected
child grows up and then, at a cost of
tens of thousands of dollars per year,
throw him or her in jail and pay to
support his or her children; or we can
remove that child from the abusive or
neglectful home and, at a financial cost
at less than a tenth of the cost of jail,
pay to keep that child in a healthy and
protective environment. 14
Can this rescue guarantee that the
child will become a productive member of society? No, but we know that if
the child stays where he is, he won't. If
a child is rescued, educated, and protected we can reasonably expect that he
or she will be a much better parent, reducing our expenditures in the future
because the cycle of abuse will have
been interrupted. It won't be utopia,
because no society has ever been free
of crime, but it should be a heck of a lot
better than what we have currently.
First and foremost, we must
strengthen the agencies legislated to
provide the protective services to children, such as the Delaware Division
of Family Services. Those workers are
on the front lines of finding and rescuing children from abusive homes.
Although police and prosecutors also
have mandates, their involvement is
too late because the damage is already
done when those agencies get involved.
The Division of Family Services usually
has the earliest opportunity to save the
child before irreparable harm is done.
But across the nation, as in Delaware, most of these agencies have the
cart before the horse. Although they
are charged with preventing harm
within the family, the most complex
of human institutions, they hire investigators with little or no experience,
fresh out of college, at a pay rate which
forces many of them to hold second
jobs. Even when these workers get off
the front lines into a s~pervisory position, they are paid very little more. IS
They are the people who have to interpret the clues, often subtle, of serious
injury to or neglect of the child. They
have to evaluate the credibility of the
victim and of the abuser. They have to
decide whether a child should receive
a medical evaluation and whether the
police should be called. They have to
decide whether it is safe to walk away
and leave the child in that home.
A more effective system would be
to hire as line investigators only people
who have substantial and proven experience in child abuse investigation and
pay them the type of premium salary
found near the top of an agency's pay
scale. Such a salary range would reflect
their unique expertise and the daunting responsibility. Such salaries would
attract skilled and mature workers and
provide an incentive to make a longterm commitment to the agency. Hiring highly paid investigators and giving them authority to remove children
based on their considerable expertise
would eliminate the bureaucratic delay and error currently caused by the
need for prior approval from less experienced administrators. 16 A more effec-
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tive system would recognize the precariousness of these children's lives and
would develop stringent and immediate consequences for caretakers who
don't cooperate, workers who don't
produce, and would make a priority of
institutionalizing more resources for
the children's immediate protection.
Foster parenting should be professionalized, providing adequate salaries,
regular benefits and concomitant college-level ongoing training for those
who undertake such an honorable
and onerous duty, particularly for
the special needs children. I? There
are never enough foster parents and
the turnover is rapid. 18 The state
needs to build and maintain more
residential facilities, some for temporary use, others Jor permanent
placement, for even the young children who cannot be accommodated
in the foster system. It is true that
such places can't be expected to provide the love all children need, but
living in them would have to be less
harmful than remaining as the object of the anger or disinterest of an
abusive or neglectful parent. With a
meaningful financial commitment
from the state, such residences can
be bright and cheerful with a caring
staff that provides an atmosphere that
is healthy, protective, and educational.
Police agencies also need to step up
to the plate and direct funds to create
specialized units or train designated
officers to respond to all allegations
involving children, not just sexual
abuse cases. 19 Just as in our Division of
Family Services, usually the most inexperienced police officers have initial
responsibility for crimes against children. They are the people assigned to
general patrol and respond to all types
of complaints. They must answer most
calls on misdemeanors and at least respond to the scenes of felonies to obtain initial information. They interview
children and abusers and interpret the
subtle physical and verbal clues. They
must exercIse judgment to summon
more experienced officers (or, often,
equally inexperienced social workers)
to the scene.
Because of time pressure or inexperience, an officer may decide to refer
the matter to the discretion of a superior who mayor may not be at the
scene. Or, more frequently, the allegation gets put into a sketchy and quickly
written report which arrives days later
The Division of
Family Services
usually has the
earliest opportunity
to save the child
before irreparable
harm is done.
on the desk of an experienced detective, long after the crime scene has
been destroyed and the child or other
witnesses intimidated. Adequate protection of our children by the police
requires immediate response and welltrained police officers. 2o
The most important change needed
doesn't cost money directly but might
be the most difficult to affect: a radical shift in how the public views child
abuse cases in general. We all have to
jettison the presumption that a child is
always better off with his parents and
that no matter what, a parent should
be given a second chance. Too often, abusive or neglectful parents get
second, third, fourth and even fifth
chances to clean up their act before
the children are finally rescued. They
make unfulfilled promises to get sober,
9# 54
'i·af)
un
attend counseling and become a new
and changed person while the child
continues to suffer at his or her hands.
We must have a one-strike standard.
We need to take the child who suffers
abuse or neglect out of such homes
sooner and keep the child out until his
or her safety is assured. Once abuse has
occurred, we must place the burden
on the parent to prove that the child
is safe in his or her care. As long as the
parent's rights trump the child's
rights, we aren't going to be able
to protect our children.
Stopping child abuse is a moral obligation imposed on each of
us. •
The opmwns expressed in this
article are those of the author and
may not represent the opinions or
decisions ofthe Office ofthe Attorney
General.
FOOTNOTES
1. American Academy of Pediatrics,
Children's Health Topics-Child Abuse
& Neglect, available at www.aap.org/
healthtopics/childabuse.cfm.
2. Ninety percent of children under 12
who are sexually assaulted knew the
perpetrator according to ChildHelp,
Prevention and Treatment of Child Abuse,
which cites several recent national surveys
conducted by governmental agencies. Available at www.childhelpusa.org/resources/
learning-center/statistics.
3. Thirty to 60 percent ofperpetrators ofdomestic violence abuse children living in the
home, according to the National Coalition
against Domestic Violence at www.ncadv.
org/files/childrenandchildcustody.pdf. Perpetrators of domestic violence are four to six
times more likely to sexually assault children
living in the home. Lundy Bancroft et al.,
The Batterer as Parent, ch. 4, (2002).
4. A 2003 study by the Office of Juvenile
Justice and Delinquency Prevention determined that 75 percent of all child abuse fatalities were caused by one or both parents
and 30 percent by the mother alone. Available at http://ojjdp.ncjrs.gov/ojstatbb/victims/qa02109.asp?qaDate=2003.
5. 11 Def.G. §222(4),(5); 11 Def.G. §468(c).
6. U.S. Department ofJustice, Office ofJustice, Juvenile Offenders and Victims: 2006
hi g
National Report, ch. 2, available at http://
ojjdp.ncjrs.gov/ojstatbb/nr2006/downloads/chapter2.pdf.
7. ChildHelp, Prevention and Treatment of
Child Abuse, available at www.childhelp.
org/resources/learning-center/statistics.
8. Victims of child abuse are 59 percent
more likely to be arrested as a juvenile, 28
percent more likely to be arrested as an adult
and 30 percent more likely to commit a violent crime. id.
9. Between 1955 and 2005, the percentage
of unwed teenage mothers between 15
and 19 increased from 14 percent ofbirth
mothers to 83 percent. U.S. Department
ofJustice, Office ofJuvenile Justice and
Delinquency Prevention, OJJDP Statistical Briefing Book, online. Available at
http://ojjdp.ncjrs.gov/ojstatbb/population/qa01301.asp?qaDate=2005
(Released Dec. 13,2007).
10. 13 Del.C. §705A; 10 Del.C. §1045;
18 U.S.C. §822(g)(9).
11. The national notificatlon law was
enacted in 1996. See 42 U.S.C. §13701.
Delaware's registration and notification
laws were updated by alignment with
the federal Adam Walsh Act in 2007 and
are found at 11. Del.C. §§ 4120-4121.
12. See n. 9.
13. The Office of the Child Advocate,
created by' statute in 1998, promotes
system reform, recommends changes in
law and policy to enhance the protection of Delaware's children, and provides legal representation on behalf of a
neglected or abused child. See 29 Del.
Code §9001 et seq. The Child Death,
Near Death, Stillbirth Commission was created by statute in 1995 and is composed of
members from various government agencies and representatives of medical, child
advocacy and social worker associations. It
investigates cases of child death and makes
recommendations for systemic changes that
could assist in preventing such deaths in the
future. See 31 Del.C. §320 et seq. The Child
Advocacy Center of Delaware is a private,
nonprofit entity created in 1995 by a consortium of interested parties. Upon referral
from the police, Attorney General, Courts,
or Division of Family Services, it performs
forensic interviews of child victims and
witnesses in a specialized setting, provides
testimony in court and training in forensic
interviewing. See www.cacodde.org.
14. The current cost to house an inmate
in Delaware is $24,500 per year. Delaware
Department of Correction Frequently Asked
Questions, available at www.doc.delaware.
gov/faqs.shtml. In Delaware, foster parents
currently receive small daily or monthly
stipends per child, rated on a scale ofspecialized needs, to cover costs such as clothing
and food. They also receive state coverage
of the child's medical costs. Once a child
reaches the prime childbearing age of 18,
the foster care subsidy ends. Delaware Department of Services for Children, Youth
and Their Families, Foster Care, Frequently
Asked Questions, available at www.kids.delaware.gov/fs/fostercare.shtml.
15. In Delaware, the starting salary is around
$30,500 per year and a supervisor may earn as
little as $42,800 per year. Delaware Office of
We all have to jettison
the presumption that
a child is always
better off with his
parents and that no
matter what, a parent
should be given
a second chance.
Management and Budget, available at http://
www.jobaps.com/de/auditor/ClassSpecs.
asp?FreeNames=1&Rl=SA&R3=F.
16. The current process for removing a child
from the home is a nightmare. See 16 Del.C.
§906,907.
17. The issue of professional foster parents
and the impact of privatization of the foster system are hotly debated nationally. See
National Public Radio, Blog of the Nation,
Mother For Hire (10/22/07), http://www.
npr.org/blogs/talk/2007/10/mother_
for_hire.html, last visited July 31, 2008.
Professionalizing foster parenting is often
advocated as a way of securing stable, experienced and more educated foster parents for
the large number ofspecial needs children in
the system, ultimately reducing the number
of placements a child may experience.
Multiple placements have been identified as having a significant negative outcome for the child. Some sources advocate that the career foster parent should
be an employee of the public or private
agency involved.
18. See CPAC Fiscal Year 2007 Annual
Report at 13.
19. Larger agencies, such as the Delaware State Police, Wilmington Police
Department and New Castle County
Police, have long used designated personnel to handle all sexual abuse cases.
20. Police officers and social workers can
receive training in interviewing children
from the Child Advocacy Center (see n.
13), at no charge to the respective agency. Although very helpful, graduates of
this one-week course cannot substitute
for a cadre of designated and experienced officers and social workers who
understand the nuances and dynamics
of child abuse cases.
21. In 1997, Delaware's Division of
Family Services, following the particularly
notorious death of Brian Martin, a young
child in the care of the agency, made some
significant changes to reduce the impact of
the agency's general family reunification
goal in certain physical abuse cases.
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Evolving
The Constitution's
drafters included
the prohibition
against the infliction
of cruel and unusual
punishments in the
Eighth Amendment.
A stroll through the new Crime and Punishment Museum in Washington,
D.C.,! begins with displays of the punishments meted out in the Middle
Ages for crimes as simple a stealing a pig. Featured are such devices as the
spiked chair, the rack, the wheel, thumbscrews, the flogging whip and the
guillotine.
mong the most brutal punishments imposed for treason in England from 1283 to 1867 was drawing and quartering. A prisoner was
first dragged behind a horse to the place
of execution, then hanged - but cut
down while still alive - then disemboweled and his entrails burned before
his eyes. Finally, he was beheaded, and
cut into quarters, one arm or leg to a
quarter. His remains were put on display. If the treason was committed by a
woman, she was burned alive. 2
The drafters of our Constitution
knew about those medieval methods
of torture when they included the
prohibition against the infliction of
cruel and unusual punishments in the
A
Eighth Amendment. That Amendment
proscribes more than physically
barbarous punishments. 3 It embodies
"broad and idealistic concepts of
dignity, civilized standards, humanity
and decency."4 The amendment is
defined by the "evolving standards
of decency that mark the progress of
a maturing society"S and does not
protect punishments that "involve the
unnecessary and wanton infliction of
pain."6 The constitutional commitment
to decency and restraint requires that
capital punishment be imposed only on
"those offenders who commit 'a narrow
category of the most serious crimes' and
whose extreme culpability makes them
'the most deserving of execution.'''7
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In these early years of the 21st
century, the Supreme Court has
concluded that decency and restraint
protect juveniles and the mentally
retarded from the imposition of
the death penalty because of their
diminished personal responsibility. 8
The standard ofdecency and restraint
also protects an offender who aids
and abets the commission of a crime
in which a murder was committed,
but does not himself commit the
killing or intend that a killing
take place.9 And most recently, the
evolving standards of decency have
been applied to bar completely the
imposition of the death penalty for
any crime against an individual that
does not result in death, including
rape of a child. IO
While the evolution . that is
taking place in death penalty
jurisprudence presents a trend away
from its imposition, other nondeath penalty applications of the
Eighth Amendment have not been
so generous. Recent cases from
the 8th Circuit make the point.
Shawanna Nelson was convicted of
credit card fraud and hot checks. She
was several months pregnant when
she was incarcerated in the Arkansas
Department of Correction. When
she went into labor, she was transferred
to a hospital where she was shackled for
most of the time that she was in labor.
Nelson v. Correctional Medical Services ll
alleges a violation of the Eighth
Amendment in support of Nelson's
civil rights action under 42 U.S.C. §
1983. Her claim of damages included
the heightened pain and indignity of
enduring labor while shackled, as well
as permanent back injury.
The 8th Circuit's analysis in Nelson
relies on an earlier Alabama case, Haslar
v. Megerman,12 where a male inmate
was shackled while hospitalized with a
condition that caused severe swelling in
his legs. The swelling was so extensive
that the shackles were barely visible.
The court held that
the shackles had a
legitimate penological
purpose in preventing
patients from
attempting to escape
from the hospital.
He complained of the shackles, and, in
apparent violation of the department's
protocols, the guard did not seek
medical assistance.
The court held that the shackles
had a legitimate penological purpose
in preventing patients from attempting
to escape from the hospital. It
concluded that shackles, when utilized
in accordance with the prevailing
protocol for safeguarding patient care,
did not constitute cruel and unusual
punishment. The ruling specifically
noted that responsibility for the injury
to Hasler rested with the guard, not
the policy. In Nelson, the 8th Circuit,
without considering the uniquely
debilitating and acute nature of
5
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childbirth, or citing a single incident
where a female inmate in labor
has attempted to escape from a
hospital, adopted a one-size-fits-all
application of penological benefit.
It concluded that the use of shackles
was appropriate; case dismissed.
The decision to dismiss Nelson is
flawed. Without an actual, credible
risk ofescape, there is no penological
benefit. Absent such benefit, any
restraint is merely punishment. 13
That makes the punishment unconstitutional.
Occasionally, a bright light shines
on types of punishment utilized by
the executive branch of government.
During the confirmation hearings
of Attorney General Robert B.
Mukasey in 2007, the nation learned
about waterboarding.
The goal ofwaterboarding, which
has been used in interrogations at
least since the time of the Spanish
Inquisition, is to create the sensation
of drowning without causing death.
The subject is strapped to an inclined
board, immobilized with his head
positioned lower than his feet.
In some cases, a piece of cloth or
cellophane is placed over the subjects
face and water is repeatedly ooured
over it, triggering a gag reflex and
choking the subject. In other cas.::s, the
subject's head is subm("r~ed under water
or his mouth is forced open and w. ter i3
poured down his throat. 14
An opinion of the Office of Legal
Counsel of the Justice Dt:partment
dated Aug. 1, 2002 defined wrtu<:
to be limited to pain "equivalent In
intensity to the pain accom ,anying
serious physical injury, such a~ org'm
failure, impairment of bodily fur. :ticns,
or even death."ls That definiti m which tacitly authorized waterb( a'd iil.s
- has been rejected by a supelsel~;ng
memorandum of opinion dated L e.
30,2004. The 2004 opinion refocm~~
the definition to conduct "specifically
intended to inflict severe physical or
**",
mental pain or suffering."16
The Central Intelligence Agency17
acknowledges that waterboarding has
been used on three occasions against
terrorists since Sept. 22, 2001. The
director of the CIA, Gen. Michael V.
Hayden, says that waterboarding was
"deemed legal by the Department
of Justice when it was used"lB and
"reflected the circumstances of the
time."19 Hayden assures the public that
the technique is no longer used. 20
Like the evolution of the Galapagos
finches, the repudiation of torture and
evolution of decency are erratic.•
8. Roper, supra; Atkins, supra at 316.
9. Enmund v. Florida, 458 U.S. 782
10. Kennedy v. Louisiana, 554 U.S._
(2008)
11. Nelson v. Correctional Medical Services,
_F.3d_, 2008 WL 2777423, C.A.8
(Ark.) 2008
12. Haslar v. Megerman, 104 F.3d 178
(1997).
13. Id at 180
3. Estelle v. Gamble, 429 U.S. 97, 103
(1976)
14. http://topics.nytimes.com/top/reference/timestopics/subjects/t/torture/
waterboarding/index.html?8qa&scp=1spot&sq=waterboarding&st=nyt
4. Jackson v. Bishop, 404 F.2d 571, 579 (C.A.
8 1968)
15. http://www.usdoj.gov/olc/18usc
23402340a2.htm
5. Trop v. Dulles, 356 U.S. 86, 100-101
(1958)
FOOTNOTES
1. National Museum of Crime and Punishment, 575 7th St. NW, Washington, D.C.,
http://www.crimemuseum..lrg
2. Wilkerson v. Utah, 99 U.S. 130, 135
(1878)
6. Gregg v. Georgia, 428 U.S. 153, 173
(1976)
7. Roper v. Simmons, 543 U.S. 551, 553
(2005) citing Atkins v. Virginia, 536 U.S.
304, 319 (2002)
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DELAWFal108
Joe Hurley
,
I
,!
At long last,
I have a public
forum allowing me
to air the many
'criticisms I have
regarding the
administration of
criminal justice
in Delaware.
When Rose Killian contacted me and asked me to share my wisdom (well,
frankly, that wasn't exactly how she phrased it) in matters pertaining to
criminal law, I passed through a progression of feelings. Initially, I was
flattered that I had been asked to share my uniqueness with those not so
gifted. That euphoria was quickly replaced with the realization, "It's about
time that you asked me!" After savoring that sentiment, I moved forward
to the thought that, at long last, I had a public forum allowing me to air
the criticisms, the many criticisms, that I have regarding issues attendant to
the administration of criminal justice in Delaware.
t was not difficult to peel out the
laundry list ofcriticisms that I maintain. I began with the thought of
writing about the escalators in the
courthouse that have not worked since
day one. I quickly realized, however,
that Gov. Ruth Ann Minner's toes
would be caught underneath my heavy
foot. Since I had already, however unknowingly, insulted her by proclaiming
at the ceremonies honoring the closing
of the old courthouse, that she was an
I
inspiration to us all because she was a
female who could not read nor write
yet became governor, I thought better
of that critique.
Replacing that was my potential nuclear strike (verbally only I might add)
against the "time line culture" of the
Superior Court reflected in the daily
drone, "This case is 209 days old."
"Who gives a s---?" the lawyers think
when they hear that pronouncement.
Instantly, I could see the grimace on
Myron's face when he read my words
because, in all probability, it would be
Myron's "time line culture" I was attacking.
I moved on to laying down a volley of fire at the phenomenon where
conference rooms in the courthouse
that are supposed to accommodate
counsel and clients are kept locked
because the bailiffs don't want to
walk out of the courtroom and move
down the hallway with keys in
hand. l I remembered that I have
brought this to the attention of the
resident judge in writing, only to
be rebuffed, i.e. "blown off."
Launching a public criticism of
something that I have attempted
privately without success }Vould not
augur well for me.
I came to realize that what I had
seen as the penultimate bully pulpit
from which to list my well-reasoned
and meritorious grievances was
anything but that. Metaphorically,
I now view myself as a bloodied
and dazed prizefighter that is flailing wildly, throwing punch after
punch in the air, but not landing
a solid blow. My criticisms, present
and past, continue to fall' on deaf
ears. The popular jingle, "Yes we can"
is heard in Delaware Justice circles as
"No we won't [change]."
I now begin the daunting task (to
me) of using my 15 seconds of literary
fame in an upbeat, if not optimistic,
manner.
In plotting my course of expression, I gave time to considering what is
"special" about the practice of criminal
law in the Delaware experience. What
do we have that is good that is lacking
in other geographic domains? Upon
reflection, there are many, too many to
include in my charge, as offered by Killian, that this tome not exceed a certain number of words.
Arguably, the most refreshing element of the practice of criminal law in
this state, including the two less sophisticated counties known respectively as
Kent and Sussex, (Ouch! I didn't mean
that, Judge Vaughn and Judge Graves),
is the collegiality that exists between
the judges and the practitioners.
Without in any way compromising
the dignity of the court, at appropriate
times, there is an air of familiarity that
Launching a
public criticism
of something that I
have attempted
privately without
success would not
augur well for me.
allows humor and humanity to coexist with the requirement of solemnity
that ordinarily attends to the court
process. Conceptually, the coexistence
of the two superficially opposing concepts does not seem possible, but it is
reflected daily.
That same solicitousness on the part
of the judiciary is demonstrated by a
sincere consideration for the schedules
of counsel and the struggles they endure daily. While in other jurisdictions
that I have observed, the line of demarcation between the Bench and the
"pit" is formidable and inflexible, such
is not the case here. It is not hyperbole
to say that, in Delaware, it is a "plea-
sure" to practice before the judges. 2
That same spirit of cooperation,
consideration and mutual respect that
exists between the bench and the bar
is apparent in the relationship between
the defense bar and the prosecuting
bar. Everyone is on a first-name basis.
Everyone knows everyone. That unique
association allows "trust" to exist and
greatly facilitates the administration
of justice.
Still another pleasant circumstance that is fostered by the smallness of Delaware is the relationship between the criminal defense
lawyer and the police. Delaware is
fortunate in having professional and
honorable police officers serve on
all levels of government. A criminal defense lawyer quickly becomes
known to the police populous, and
vice-versa. Again, and primarily because we are a small state, camaraderie exists between the police and
defense bar without affecting the
discharge of their respective duties.
The existence of mutual respect
between the bench and the bar
flows down to the intermediate and
lower levels of the system. Judicial
secretaries, court clerks and bailiffs
interact with the defense bar on not
only a professional level but more importantly, on a personal level as well.
The basic atmosphere is one of "we're
all in this together," and, indeed, we
are.
I guess the so-called bottom line or
the thought that comes forth at the end
of the day is that the practice of criminallaw, in Delaware, is all about people
being people. The administration of
criminal justice is something that all
of us share and, for whatever' reason,
that seems to bring out the best of us
as human beings in seeking the same
goal; viz., justice. Rank and station,
while appropriately observed, are, at
tsaR
R%# §f 4& ,'5444:dO";
·SiUhA?- -86·
;3 i!S'i#¥
I'M 4:V
: sa, u
. i
.I
I
.,i
the same time, blurred when more
humane instincts are required. This
atmosphere allows a prac.titioner of
criminal law in Delaware to say,
"Life is good," and it is!
In order to compose this piece,
I had to cast aside the mindset that
carries me through each day, which
is to strive to be the best and also to
strive to make everyone around me
be the best they can be, solicited or
not. One can argue that this mindset is not particularly conducive to
composing an upbeat observation
ofthe practice ofcriminal law. Well,
yes, I can. Yes, I can look at things
around me and see things in a positive light. Yes, I can realize that the
annoyances that I usually complain
about are, in the larger scheme,
not all that important. Yes, I can
The administration
of criminal justice is
something that all
of us share and, for
whatever reason,
that seems to bring
out the best of us as
human beings.
appreciate those around me in the
practice of criminal law and realize
their importance in allowing me to
do what I do. Yes, I can write something without making a sexual innuendo or using four-letter words. 3
Yes, I can. •
FOOTNOTES
1. Of course, that is the world according to Joe. The official mantra is that
the doors are locked because of a fear of
theft of the contents. Since the contents
consist solely of a table and three or four
chairs, one can only wonder how large a
person it would take to carry a table out
the front door, unnoticed, in front of
anywhere between four to seven security
officers.
2. "Well, most of the time."
3. "Oh, s---! Did I say 's---'/"
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