Creight Horton has been very busy on the Yachats scene in the past few weeks, with his presentation on his recent book, A Reluctant Prosecutor: My Journey (Wild Ginger Press: 2016) to the Yachats Academy of Arts & Sciences and its follow-up the weekend after.
TYG: So, what does a prosecutor actually do? What is the more daily side of prosecuting, and what is their role in the courtroom?
Creight: So, the prosecutor is a representative of the government entity, whatever it is: the state, the county, the city. The prosecutor’s first function is to have the police come in with cases that they think should be filed, criminal cases. They took a complaint from somebody, they investigated it, and now they think they know who did the crime. They ask that the prosecutor, then, go through the formal process of drafting up a document that charges that person with a crime—it starts the whole process. Then somebody can be arrested, they take them to a court judge, they’re arraigned. If it’s a felony case, they will have a preliminary hearing before a judge, so the judge can decide whether or not there’s enough reason, enough evidence, for the case to actually go to trial.
TYG: What if it’s a private individual suing the government?
Creight: It’s a whole different thing. Civil suits are different. Somebody could sue somebody else in court; they would hire their own attorney to do that. You can’t hire a private prosecutor to charge somebody with a crime. Part of the idea is that generally you’re going to have an elected official who is the county attorney, or the district attorney, who is going then to be responsible, ultimately, as a public official. They can be voted out of office if people feel they’re not doing a good job, or if they’re appointed, they can be let go if it’s that system. But it is a system that requires a prosecutor, and only a prosecutor, to make a decision as to whether or not a case should be filed. In some jurisdictions they have what they call a grand jury, which is a bunch of citizens. The prosecutor will present the evidence to those citizens, and the citizens will decide if they think there’s enough evidence to bring charges against somebody. But either way, there needs to be a safe-guard so that prosecutors don’t have complete discretion without anybody else looking at whether or not before a person stands trial, there’s enough evidence. You wouldn’t want a system where somebody would have that much ultimate control. [...] The general idea is that there needs to be a prosecutor making decisions whether or not there’s enough evidence, then a judge will review that, and if they think there’s enough evidence, then the person has to go to trial.
TYG: So, this is sort of for myself, considering I’m an American citizen, well, United States citizen, and I want to know what exactly a jury does, a member of a jury.
Creight: Jurors are citizens who are called in. You get a notice to do jury service, and you’re expected to do your duty as a citizen. So you’ll be called in, and if you get selected to be a juror on a case, you have a very defined role. You don’t get to be actively involved in how things are going in the courtroom—you don’t get to ask questions or anything like that. The judge is supposed to be the one who makes sure that the evidence that comes in, comes in fairly from both sides. The jury is then told that this is what the law is that relates to this crime. So somebody gets charged with a particular crime, the judge will instruct them as to what that crime really is, and say that [the jury] can’t convict unless [they] find beyond a reasonable doubt that the elements of the crime have occurred, and that the defendant committed the crime. The elements are like, somebody unlawfully caused the death of somebody else with a certain mental state—intentionally knowing, or reckless, or something like that. Then the jury is supposed to apply that law. They’re the ultimate ones that decide what the facts are—not the judge, not the attorneys: it’s the jury.
TYG: Interesting—so [the jury does] actually have quite a lot of power! Would [they] be able to ask questions about the specifics of the law, or something, before [they] decide?
Creight: Jurors can, when they’re deliberating—so after the case is sent to them, all the evidence has been presented, and the judge has given the jury instructions telling them what the law is—if they have a question, they can submit a written question back to the judge, and then the judge can decide whether, and how, to respond to them. So they do have a limited ability to do that. For example, during the process of hearing the evidence, a juror can’t raise a hand and say, “Lookit, nobody asked the witness this question, and I’m curious to know what the answer is.” They don’t have that ability.
TYG: That’s surprising to me.
Creight: Sure, some jurors are frustrated, because they wonder about things they don’t get to ask about, and that they haven’t heard anybody else ask about.
TYG: So, how do you go about filing a case?
Creight: Well, what they call the screening process would have an officer come in to your office, if you’re the prosecutor, say they think they have enough evidence to file whatever the charge is against the person, then they would sit down and tell you what evidence they have. [Let’s say] there was a break-in down at the pharmacy. They got a fingerprint from that. They matched it to so-and-so, so-and-so also has a history of drug-dealing—whatever it is—and then they went and talked to the person who said they did it. Obviously that would be a real easy case to file, but some of them are not nearly as clear as that. The police think that there’s enough to file, but the prosecutor has to decide. Sometimes the prosecutor says, “Listen, you keep investigating this, I’m not yet comfortable that we have enough evidence to convict this person.” Because once you get to trial, you have to convict with evidence that is beyond reasonable doubt. And that’s a pretty high standard. Beyond a reasonable doubt. It’s not just like it’s more likely than not that this guy committed the crime, it’s that “We have no reasonable doubt this guy committed a crime.” That’s a pretty high standard of proof.
TYG: Okay, I have a question [...] based on something I read in a book. This one girl had gone to jail, and she was released in the end for two reasons. One was some specific legality, and the other was that no one had read her her rights. Does that ever actually happen?
Creight: Yes, it happens in the context of a case being reversed on appeal. I can remember a case several years ago in Salt Lake where a man had killed his own daughter, and then later confessed to it. But it turned out there was a problem with the Miranda warning: he was given the warning, but he didn’t give a clear indication that he was willing to speak without an attorney. And what happened was, a deputy sheriff had given him his rights, and later, when he started to confess, the deputy sheriff went to the sheriff, and the sheriff asked him [whether] he had waived his right, and [the deputy] said yes. So the sheriff went in and got the full confession from him, and later, it turned out he had not waived his right. That case went all the way to trial, all the way through conviction, and was overturned on appeal because they had what they call an exclusionary rule of evidence. If evidence is obtained illegally, it can’t be used in court. Since there was a problem with that Miranda warning, that guy—who everybody knew was guilty: he’d even confessed to it—he ended up being released, and couldn’t be re-tried. That was seen as a huge travesty of justice. And it was all because they hadn’t clarified whether he wanted to go ahead and speak without a lawyer. He said something like “I don’t know,” or “I guess,” or “maybe,” and they should have said, “We need you to be clearer than that. Here are your rights, you don’t have to speak, anything you say can be used against you. If you want an attorney, one will be provided for you. Are you willing to speak with us without your attorney present?”
TYG-Editorial Assistant: So the mere fact that he had heard the standard Miranda warning wasn’t enough?
Creight: Wasn’t enough! I mentioned that in the beginning of the Innocence chapter in my book—it was one of the cases where it was frustrating to see guilty people go free because of some mistake like that in the system. That was one that was particularly upsetting because it was such a serious case. [...] But the process is: The police come in, they present witness statements or they tell you what the evidence is, you evaluate and go, “I think this is enough to file charges.” Although, all it takes to file charges is a fairly low level of being convinced somebody is guilty. It’s called “probable cause.” You can file on a probable cause standard, but you have to prove, on evidence, beyond a reasonable doubt. So any prosecutor who’s doing their job carefully is not going to file on just the probable cause level, because they realize that they have a much higher burden than that, that they have to prove in court—or else they’re going to lose.
TYG: So, just wondering, almost from the point of that man who went free, even though he confessed and everyone knew he was guilty: Is it possible to turn yourself over to prison, to be arrested?
Creight: You could ask, but in a case like that, if there’s not a legal conviction, there’s not going to be a process for them going to prison. The only other recourse would be a civil lawsuit against a person like that, which is what happened in the O. J. Simpson case after he was found not guilty of killing his wife and her boyfriend. He was acquitted at trial, and so, because of the double-jeopardy clause in the Constitution (you can’t try somebody twice for the same crime), he couldn’t be tried in criminal court again. The family of the victim could sue him for money damages in civil court, and that’s what they did, and they got a big judgement against him.
TYG-EA: I have a question: What happens, on a subtle level, to the prosecuting team if they blow a case—if they lose a case, is it bad for their career? Or if they lose too many?
Creight: You know, I think it probably varies a lot depending on the office. If it’s something that somebody’s actually made a big mistake on, they may not be entrusted with a big case, and somebody might suggest to them that they might want to find a job elsewhere. [laughter] Even if they have tenure, if they’ve been there long enough that they couldn’t be fired without cause, they would probably not be put on important cases. Most of the cases that I saw that had justice go awry, it was one of those things where you couldn’t point at the prosecutor having made some big mistake that was the problem with the case. It was a problem with the evidence, it was sometimes a problem with the jury where you’d hear back later that the jury really thought that the person was guilty, but for reasons that are sometimes bizarre, they decided that they were not going to convict him. That one case where the judge wouldn’t let me put more evidence on, because it was so obvious that the person was guilty and he was impatient to finish the case and didn’t want it to go into the next day, and it went to the jury and it came back not guilty, and the judge about fell off the bench. Later, I ran into one of the jurors on the street, and she said the reason they didn’t convict him was “Well, we only got to hear the evidence once, and you can’t decide anything if you only hear it once.” And of course you can only present the evidence once. If you tried to present it again, they would say, “This has already been done!” But that was one of those weird ones. How could you guard against that?
TYG: You record the session.
Creight: Well that’s the other thing, you cannot invade the privacy of the jury deliberation process. That’s considered really important.
TYG: I didn’t mean that kind of session—but presenting the evidence once. You actually record the court case.
Creight: Oh. Well, that’s an interesting idea. With technology that exists today, it wouldn’t be a hard process to let them go back and see something if they have a question about it. Otherwise, people rely on their memories—and what happens if you get back in the jury room, and people remember things differently? What they can do is have them read back the transcript of certain testimony, which is what they’ve done in the past. It’s a variation of that. It’s like, “Well, we disagree as to what the person testified to. We want to review the testimony.” That would be allowed, where they could hear questions and answers, so they could at least know what was the right version of the testimony.
TYG: That doesn’t seem specific enough to me—that just seems sort of vague. This is one of the things you referenced in your presentation: There was someone who said “I shot the clerk?” and the transcript came out as, “I shot the clerk.”
Creight: Oh yes, that was actually from that movie, My Cousin Vinny. That’s not that far off the mark! I’ve seen cases where part of the evidence was an unrecorded, so-called confession. They say, “Well, that wasn’t a confession.” Or, “They misunderstood what I said.” And the officer says, “No, this is what they said.” And then you end up with a contest in court about that. That’s why I’m a strong advocate for recording all those kinds of things, for the same reason. Let the people actually hear what the questions were, what the answers were, what the inflection was, what the voices were of the people talking, and that would be easier to put into context, because it can be very difficult.
TYG: If you’ve got a professional scribe there at the confession, that’s one thing. Because then they can record, and get all the question marks and stuff, and make notes about it. But if it’s just the sheriff and the person, I don’t think that should be enough.
Creight: Well, fortunately, the way things are moving now, more and more jurisdictions are requiring recording. And sometimes, over the objections of the local police—it’s been imposed on them. I remember going to a conference in New Orleans years ago, an Innocence conference, and there was a police officer from one of the big departments in the east—I can’t remember, D.C. or someplace—who said this was imposed on the police over their objection. They didn’t want to have to do it. Two years later, there wasn’t anybody in that department that would ever go back to not recording. It had made it much more efficient; they stopped having to have these hearings, these contests in the courts about what was really said and what wasn’t said. The convictions actually had gone up: more people pled guilty because it was right there, they could listen to it. The defense attorney could listen to their confession, and if it was a valid confession it was much easier to tell. We took that information back to the Utah law enforcement people. We said, “Utah should get in front of this. We shouldn’t have to have somebody impose on us the recording requirement. We, ourselves, should do it because it’s the right thing to do, it’s easy to do now, the technology exists so it’s not going to be that expensive to have the availability of a tape recorder.”
The second half of Creighton Horton’s interview will appear in the March issue of The Yachats Gazette.
Interview with Bob Barrett
We continue our interview with Bob Barrett, Pastor for the Yachats Community Presbyterian Church. In the story, Bob has just decided to make a leap of faith and go to seminary in Oklahoma, although they’ve opted to live in Kansas.
Bob: At the Methodist church, I had met [a woman named Paula,] who was leading [their] youth group. And she said, “Gosh, if you’re looking to go to seminary, there’s this school in Oklahoma that offers block scheduling. She told me about it, and I said “Great.” We settled on moving to Kansas, three hours away from the seminary.
TYG-Graphic Design: You got accepted?
Bob: Not until after I moved to Kansas! [laughter] But I told Paula, a couple of weeks later at a birthday party, “Hey, we’re moving! I’m going to try and get into that seminary.” Just on faith, I assumed I would—knowing nothing about the seminary, for me, it was a means to an end. You know, you put a quarter in, you get a bubble-gum out. So I said, “I’m going to go to Phillips [Seminary] and live in Kansas.” And she said, “Whereabouts?” and I said, “Ark City.” Arkansas City. “That’s where James and I are from!” she said. And I said, “No, you always said you were from Wichita!” She said, “Well, we tell people Wichita, because no one’s ever heard of Ark City. So then, Paula said “Gosh, you would really love my church in Ark City.” And she said, “It’s a Presbyterian Church.” [laughter] And I was like, “Yeah, I’m not switching again,” I said. “I’m Methodist, and I’m going to stick with the Methodist Church.” And she said “Well, you should at least check them out. Joy and Danny are just wonderful.” It was a husband and wife couple. So I said, “Alright, when we move there I’ll check it out.”
[A little later on,] Paula said, “You know, I’ve been kicking around seminary as well.” So she applied. We both were accepted, and we carpooled together. And it was great to have about six and a half, seven hours in the car to just talk about the events of the day, and discuss something that came up in class; we would study and write papers together, and I don’t know that I could have done it alone. So that was really neat how all that fell together.
But I’m still Methodist, and she’s Presbyterian. And shortly after moving to Kansas, the district superintendant in the Methodist Church, which is kind of an assistant to the Bishop, I guess, calls and says, “Hey, I understand you’re new to town and going to seminary. We need somebody to serve a little church in Atlanta—a small, little town in Kansas. Would you be interested in preaching there?” And I said, “Yes, that would be great!” So they also had somebody else, so every other week I would preach at this little church in Atlanta, Kansas.
TYG-GD: And this was for the Methodist church?
Bob: Yes. I loved it, they loved me. Zach came to me shortly after moving there, and said “Dad, all of my friends at school are going to the youth group at the Presbyterian church.” [laughter] So he says, “Would you mind if I went to youth group at the Presbyterian church?” [laughs] So I said, “That would be fantastic.”
TYG: Because you’d already done the same thing!
Bob: Yes! So he started going to youth group at the Presbyterian church, and he came to me a little while later and he said, “Do mind if I start going to church with the Presbyterian church? It’s so boring at the Methodist church.” [laughter] And I said, “Yeah, I know.” So he’s worshiping at the Presbyterian church every other Sunday. On the Sundays in Atlanta he’d come with me, and we’d go as a family. But then Lorraine started feeling badly that Zach was worshipping alone, so on the off-weeks she would go to church with Zach at the Presbyterian church. Well, the pastor at our local church calls me one night, and she says “Bob, haven’t seen Zach in church in a while...” And I said, “Well, Zach’s been going to the Presbyterian church.” And she says, “I haven’t seen Lorraine, either...” So I said, “Well, she’s been going to church with him, she didn’t want him worshiping alone.” And she says, “That is completely unacceptable! If you’re going to be a Methodist pastor, your family needs to worship with you. You’d better get your family under control.”
TYG-GD: [wide-eyed surprise] Oh my gosh!
Bob: And I said, “I’d better do what?” [laughs] But I didn’t make a big deal of it. Except that, on the weeks when I wasn’t preaching in Atlanta, I started worshiping at the Presbyterian church. [laughter] And I got a call from our district superintendant (by this time it was a woman). “Bob,” she said, “you and I need to talk. And I don’t want you preaching until after we’ve had a chance to talk.” And I thought that it must be really bad. So I said, “Can I ask what it’s about?” and she said, “Well, it’s come to my attention that you’re worshiping at the Presbyterian church.” I said, “Yes, I’d love to talk to you about it.” She said, “Well,” she said, “I just think you need to make a decision. You’re either Methodist, or you’re Presbyterian.” And I said, “Okay, then I guess I’m Presbyterian.”
TYG-GD: Oh, right there on the phone you said that?
Bob: Yes. So, we started going to church at the Presbyterian church. So again, it was another one of those instances where it was just a jerk of a pastor—telling me I needed to get “control” of my family! So we started worshiping with this husband-wife couple that were just phenomenal and nurturing.
So, about the same time, I’m going to seminary and my first day at seminary... Well, several things happened. [...] Maybe this wasn’t the first class, but the Hebrew Bible professor—a gentleman named Rick Lowery—says, “Take out your Bibles.” And I’m thinking “Oh, this is awesome! I’m in seminary, we’re finally getting to study!” The Bible comes out, and he says “I want you all to read along. We’ll take turns reading. I’m assuming that people will have different translations, so we’ll discuss some of the variations in translation, but we’re going to read until I think that there’s something we need to discuss and I’ll tell you to stop.” So we open our Bibles, and somebody starts reading, and they say “In the beginning,” and he says “Alright! Stop!” [laughter] And I’m like, “What?”
So he says, “Let’s look at this word.” And he writes a Hebrew word up on the board, and the word is בְּרֵאשִׁית: “Bur’ashyth” [/bara-ah-sheet/]. And he says, “Let’s break down this word.” Hebrew was my worst—I’ve never taken anything harder in my life—I barely passed, and I don’t remember any of it. But he says, “It can be translated several different ways, but really, probably the most likely, logical translation in this setting is not ‘in the beginning,’ but ‘in a beginning.’
TYG: Oh, that’s very interesting.
Bob: Yes! So he says, “So, let’s read it like ‘In a beginning’.” So we’re like, okay, “In a beginning, when God began creating the heavens and the earth, the earth was a formless void.” and he’s like, “STOP!” [laughter] “Ok, so it’s ‘in a beginning’. So were there many beginnings? Is this the beginning of one thing, but there were other things that happened? And it’s ‘In a beginning, when God began creating, the earth WAS formless.’ Does that mean the earth already existed?” And now my head is spinning. [laughter] So, he continued, “Can we perhaps understand that the earth already was when God began...” Anyway, you get the point. And he says, “The Hebrew word for ‘formless void’ is תֹּ֫הוּ: tohu [/to-hoo].” And it means this kind of desert, wasteland, wilderness, there’s no up, there’s no down, it’s complete total chaos. And so the story is that God is kind of rendering order out of chaos, and separating heavens and the earth, dry lands, light and dark, creating...
TYG-GD: Creating physical laws. So we had the big bang, and then everything is formed out of that.
Bob: Yes. However that all fits together. [laughter] So I’m like, “Okay, this is really cool.” And then—and I don’t know that I’m remembering all this exactly, and there aren’t a lot of people who believe what he was presenting, and I don’t know that it was in this first class, but he shortly after I began seminary, he said, “Well now, let’s look at the creation stories. In Genesis, we have two creation stories.” And I’d never even realized that. I realized later that so much in my mind was kind of this mushy amalgam of stories that all kind of became one story. But there are two creation stories in Genesis, and they’re in conflict with each other. One can’t be true if the other is true. They can’t both be true at the same time. And I’m [reeling.]
I had already kind of understood—it’s a pretty common understanding, almost universally in the Christian church—among fundamentalists, among progressive liberals, Catholics—is that much of at least the Old Testament, and certainly Genesis and the creation stories: it’s mythology. It’s not a science story, it’s a literary account to try to understand, it’s all allegory and myth. So we get to the creation stories, and he starts talking about the story where God creates Adam. See, I don’t want to sound stupid in my story, because I’m trying to remember the Hebrew... [chuckles] But the word for “Adam” and the word for “earth” are very similar; the word “Adam” comes from the word for clay or for dirt. So God made Adam from the dirt, and breathed life into Adam, and then Adam is lonely! So Adam says to God, “God, I’m kind of lonely! Could you give me a companion?” “Oh, sure!”
TYG-GD: And then he rips out the rib?
Bob: Well, no! God starts creating things, like “Schwoomp!” And there’s a cow! And Adam says, “God, this is a cow! It’s not really...” and God says, “Okay, you’re right.” Schwoomp... there’s a dog! “It’s a DOG!” So God creates all of the creatures, and the birds, and the pigs and the donkeys...
TYG: I never knew this part of the story—I thought he just went straight to Eve!
Bob: No! So he creates all of them, and they name them, but out of all of those there was no suitable mate for Adam. So God finally says, “You know, the only thing that’s going to be a suitable companion, help-meet, friend, is another human being. So God puts Adam to sleep. The stories say that he took the rib from Adam, and created Eve. My Hebrew bible professor would say that really, he split them in two. And that really, all of the earlier—however you figure this out in Hebrew—is that it’s a gender neutral being—it just means “human.” Until after Eve! And then they become gender-specific. So whatever that might mean—whether Adam was gender-neutral, or Adam contained both male and female, and he split them out, male AND female—but Eve was equally present with Adam at the moment of creation, so that there is none of this “lording over” superiority. They were both present.
TYG: One thing I find interesting about that is that it mirrors how DNA is actually copied. You have one DNA strand that is broken into two down the middle, and then different enzymes feed through sort of little machines that build new DNA strands.
Bob: I often find, when I look at scripture, and then science—we know that the bible wasn’t written as a science textbook—but there are times when you’re like, “That makes sense!” when you put science over it. In fact, in our general assembly [this past] June—what did it take? 2000 years?—we finally passed a resolution that said that science and religion don’t need to be mutually exclusive and that they can inform each other.
TYG-GD: [laughing] Oh, that is so kind of your assembly!
Bob: [laughter] Right?
TYG: More than that, because the Old Testament goes back to Judaism, so another 1000 years on top of that...
Bob: Yes, 3000 years at least.
TYG-GD: So, what was this doing to your mind, and your thinking process?
Bob: So, here we go! I had other classes that were blowing my mind just as much, but in that same class, we started looking at creation stories from religions that pre-dated Judaism by a long time. The Epic of Gilgamesh... I had no idea that any of these existed. And then we get to a point where he says that Abraham, Isaac, Jacob probably never existed. And I’m like, “Okay, I’m in the wrong seminary.” [laughter] Complete heresy. I was really, really struggling with all of that. So I go home, and I’m really having a crisis of faith, this dark night of the soul kind of thing. This is kind of my life, it’s all I really know. So I go back home, and my friend Paula says, “You know, Joyce and Danny could probably really help you with this.” So I set up a meeting with Danny, and... I don’t remember if we had actually joined that church yet. I think I might have still been Methodist then, but worshiping at the Presbyterian church. It doesn’t really matter. But I go in to meet with him, and he says, “You don’t really need to worry. The stories are true! I know that they’re true, and I’m going to tell you why they’re true. I know a fellow. God spoke to him and said, “Bob. I want you to leave everything. Step out in faith, and trust that I’m going to take care of you and provide. I want you to sell your house, I want you to load a van, I want you to move to Kansas. Don’t look back, just trust me.” And God has been faithful, and God has provided. Bob found a house, and he got accepted at seminary, and he’s got a decent job...” And I’m like, “Yeah, you’re talking about me.” [laughter] I mean it was pretty obvious, and it wasn’t like it took a lot. And he said, “The story doesn’t have to be factually true in order for it to contain truths. Everybody had an Uncle Abraham, or an Aunt Sarah. They can all relate to the stories,” he said. So I’m like, “Ohhhh...” So it really started to change the way I viewed scripture. I kind of came to a point where I realized that it did not have to be inerrant and infallible in order for it to be true. And [I started] to kind of deconstruct things literally, and look at them through different lenses, through a different hermeneutics.
At the same time, I had met a student at the seminary who was gay. And I [was puzzled] at what he was doing at a Christian seminary—it was just completely foreign to me. But through my years in seminary, he became for me the face of Jesus Christ at the seminary. This was kind of a big shift for me. So while I went in being pretty conservative—I had no idea it was such a progressive, liberal seminary at the time. I had the only car in the parking lot with a George Bush bumper sticker on it. [laughter] So the transformation for me—in church circles it would be “metanoia,” this kind of complete one-eighty, this turning—was pretty radical. I’ve really come to an understanding that much more important than any of the dogma of the church, right practice is much more important than right belief—orthopraxy is more important than orthodoxy. Entering into a right relationship with one another and with whatever your understanding of God is, and responding to that love of God and the call of God to do justice, to love mercy, to walk humbly, certainly trumps any of the other garbage. [...]
We will conclude Bob Barrett’s path to Yachats in the next issue.