This fact is irrefutable:
By SAMUEL J. HARRIS
Putnam Pit columnist
I have become tired of speculating on the Byron (Low Tax) Looper matter, but it will be some time before the trial ends speculation about whether the politically unpopular Putnam County tax assessor murdered his incumbent opponent for state senate, Tommy Burks. (My wife reminds me that speculation may not end then.)
Still, the most important duty as an attorney that I can perform for interests of justice is to remind the public of the most fundamental element of criminal due process in America -- a person is innocent until proved guilty.
LOOPER IS NOT GUILTY. This fact is irrefutable because there has been no trial. The Upper Cumberland shines brightest when it shows the world that fair trials that adhere to the Anglo-American principles of due process prevail, especially for unpopular members of the community. In fact, it is especially at times when people like Looper who have fallen almost completely from favor ask for an impartial hearing before the courts that the entirety of the judicial system is defined.
Looper's Nov. 23 preliminary hearing in Cumberland County General Sessions Court should be scrutinized both for the impact on the Looper case and for what it says about due process the 13th Judicial District. Ask yourself this question: Is justice being cranked out by the mere performance of ritual or does the substantive nature of what we as a society try to set forth in the criminal justice system have any bearing how and why we conduct certain hearings?
If probable cause is so ordinarily and easily established, why not eliminate the whole procedure and reduce the cost of criminal litigation for all parties? I often joke that general sessions judges are going through their 6th or 7th rubber stamp to bind over criminal charges, but the wrapper hasn't even come off the rubber stamp saying "No probable cause."
If the outcome is so certain in general sessions court, why bother with the proceeding at all? A predictable outcome diminishes the courts and turns them into mere adjuncts of the prosecution.
A surprise witness named Joe Bond testified Looper had planned to kill Burks since May or June, but who is Staff Sergeant Joe Bond? Did Looper really visit Bond in Arkansas and say he wanted to kill Burks, and is there any evidence to corroborate Bond's allegation? How well did Looper know Bonds? How is it that Looper confides in Bond when they haven't seen each other, prior to the beginning of this year, for many years? Was Bond lying? If so, why? The defense needs this answer more than anything else if they hope a jury can return a "Not Guilty" verdict If you are going to do the right thing, shouldn't the Marine have had the courage to have come forward in April or at least August to notify the authorities or the Burks of Looper's intentions? Was Bond a co-conspirator with Looper?
If Looper gave such a detailed explanation to his alleged friend, will he be issuing press statements from death row
as the "Most educated prisoner on death row" or the "Most Naive prisoner on death row?" Why drive to Hot
Springs, Ark., (Clinton conspiracy buffs take note) to tell an acquaintance from the past that you have committed
I just happened to watch "Pulp Fiction" for the seventh or eighth time the night after Thanksgiving. There is a scene
where one of the characters says something about "busting a cap in someone" and using a 9 mm. It caught my
attention. In the 20 or so times I have spoken with Looper since I first met him in the spring of 1997 I have never
heard Looper express himself in the jargon that the hearer of his alleged confession claims he used.
More questions --
First, why didn't the judge allow the defendant to put on witnesses? It is fundamentally unfair to say that no
evidence could have been established at the preliminary hearing from other witnesses. First of all, the state relied
upon other witnesses' affidavits to hold Looper long before they knew of the purported confession. These
affidavits were a basis for probable cause, and a preliminary cross-examination for their strength should have been
allowed. Indeed, what was the district attorney afraid of? Why not put critics to rest by allowing their interrogation
by someone other than the DA's office?
Second, the cross examination of Wesley Rex, the purported eye-witness, might have refuted what the Marine
claims Looper said. The Marine claims Looper saw someone who recognized Looper at the murder scene. This
statement conveniently ties the State's case together. Looper's alleged confession is then used in circular reasoning
to support Rex's affidavit. What if under cross-examination at the preliminary hearing Rex said he really didn't see
anything? Wouldn't this refute a portion of the Marine's testimony about what Looper purportedly told him.
Unfortunately, under the ruling of the General Sessions Court last week, the state need only produce a witness
who claims to have received a complete confession. The state claims it shouldn't have to produce all their
evidence at a preliminary hearing. Why not? If the prosecutor's duty is to seek justice, why shouldn't he give the
greatest latitude to the defendant to develop a defense? Hypocrisy reigns. The district attorney acts as an
advocate for a predetermined position rather than a seeker of truth and justice.
What fishing expedition (District Attorney General Bill Gibson's argument) would result from the accused (but not
convicted) defendant scrutinizing the very persons whose words resulted in his pretrial incarceration? If the case is
so airtight, what is the risk? After all, the district attorney didn't even know of Mr. Bond until after he stated he
had a strong case against Looper. How convenient to come up with a witness who can tie up every loose end of
the case with an alleged confession?
Justice is not obtained by cursory factory work; due process is not some superficial operation of running it through
the mill or checking a checklist. Especially in a murder trial, everything must be scrutinized before anyone says
Looper is guilty beyond a reasonable doubt. I suggest the old version of "Twelve Angry Men" if anyone needs a
refresher on this issue. Looper may be the killer or a party to a killing, but that is unexamined speculation that
should have no place in an intelligent and just system of law.
If our government is going to assume godlike powers in proposing a death penalty for crimes, then the government
should bend over backwards to make sure the accused is given a real and substantial opportunity to defend his
life. The incompleteness of the preliminary hearing denied Mr. Looper the opportunity to challenge the credibility
and strength of the state's proof of probable cause, which was based initially and in part on the affidavit of Wesley
Rex. On February 4, 1999, will the grand jury return an indictment? The suspense is underwhelming.
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