35
As soon as her indictment came down from the grand jury, and Barbara was ordered to be held with no bail, attorney Rodney Stallings was ready with a motion to set bond for Barbara. Attorneys for Schiess, who was being charged and tried separately, also filed a similar motion on his behalf, both of which would be considered by Judge Cole.
In Barbara Ann Roberts’s motion, Stallings told the court that Barbara, having been indicted by the grand jury, had previously been out on a cash bond since April 27. She had surrendered her passport to the Cherokee County Clerk’s Office, as ordered by the court, on May 2. She had been available to be contacted at all times since then, Stallings said, either by his office or the court.
“The defendant has at all times abided by the conditions of her bond and orders of the District Court of Cherokee County, Alabama,” Stallings claimed, a statement that might not have rung true if more mention had been made of Barbara’s attempts to get messages to Vernon.
Stallings also claimed that Barbara was not a flight risk and had proven this by her actions since being bonded out in April. He also pointed out that Alabama law stated that in order for a defendant to be held without bond, the judge must be of the opinion that the proof of Barbara’s guilt should be evident, or the presumption great, that she was guilty of murder in the degree punishable capitally, with clear and strong evidence of such guilt.
“The evidence presented does not meet the requirements of ‘being clear and strong,’ or the presumption great that the defendant is guilty of the offense in the degree punishable capitally,” Stallings stated.
“The burden of proof rests on the state to prove the crime, to prove that it was of the highest degree, and to convince the judge that upon final trial, the judge would sustain a verdict pronouncing the defendant guilty and imposing the death penalty.”
Stallings then pointed out that the recommended range for the crime of which Barbara had been indicted under the applicable bail schedule could be as low as $10,000, and the recommended range for a charge of murder was as low as $5,000.
On receiving Barbara’s motion and a similar one from Schiess’s attorneys, Judge Cole set a hearing date for November 16, and both motions, by mutual agreement, were consolidated for the hearing.
When Judge Cole issued his order following the bail hearing, he said that the defendants had been charged with the noncapital offense of murder initially. Bail was set by the district court, and both defendants paid the bail and were released. Then, when the grand jury returned three-count indictments against both Barbara and Schiess charging the capital offenses of murder during kidnapping and murder during robbery, the court ordered that they be arrested and held without bail. In order to be entitled to bail, Cole said, a person accused by indictment of a capital crime must overcome a presumption of guilt.
At the bail hearing, Cole said, the state relied upon the indictments and a portion of the preliminary hearing transcript to justify the “no bail” order. The defendants offered evidence of their educational backgrounds and professional achievements, and the fact that they had appeared for their preliminary hearings and, otherwise, complied with the conditions of their bail. Schiess also offered the testimony of family members, who testified to his good character attributes and his reliability.
“While the evidence shows that the defendants have had distinguished professional careers, and that they have complied with previous bail conditions, the court, upon consideration of the indictment, the evidence, and the law, finds that bail is due to be denied,” Judge Cole ruled.
At the same time Stallings attempted to get his client released on bail, he also filed his notice to the court of medical issues to inform the court of Barbara’s medical and mental situation, and the medications and therapy she would require while in custody.
In his notice Stallings said that Barbara had been prescribed medication that would be extremely detrimental to her physical and mental health if not taken as prescribed. He provided letters from her psychiatrist and psychologist, along with a list of her current prescriptions, which showed she was taking a total of nine medications prescribed by three different physicians.
Also noted was the fact that Barbara had appointments with her psychiatrist every other week and with her psychotherapist on alternating weeks, and that level of care needed to continue while Barbara was in custody.
Since Barbara’s medical doctor provided a letter in her support, it was attached to the notice. It verified that she had undergone spinal surgery and required a certain-thickness pillow to prevent extreme pain and headaches. The letter from her psychiatrist was also attached in support of the notice’s claim of her need for care while incarcerated.
Stallings then pointed out that the United States Supreme Court had stated that deliberate indifference to a prisoner’s serious medical needs constituted cruel and unusual punishment under the Eighth Amendment and could give rise to civil rights cause of action, regardless of whether the indifference was manifested by prison doctors in their response to prisoner’s needs, or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with treatment once prescribed.
Stallings concluded his notice by asking the court to ensure Barbara’s prescriptions be properly maintained and dispensed, that her current level of psychiatric care be maintained, and an adequate pillow be provided.
After receiving the notice, Circuit Judge Randall L. Cole considered it and filed the following order:
The Court having considered the Notice to the Court of Medical Issues filed by the Defendant, finds that the same should be granted. It is therefore ORDERED, ADJUDGED and DECREED that during the defendant’sincarceration,
1.
The listed medications will be dispensed to the defendant as prescribed.
2.
A pillow of appropriate thickness will be supplied to the defendant.
3.
The defendant shall have sessions with a psychiatrist every other week and psychotherapist on alternating weeks.
Barbara was, at that time, being held in the DeKalb County Jail, and soon began to claim that her medication was not being administered correctly despite the judge’s order. In mid-December, her psychiatrist sent a letter to Stallings and to the jail’s medical director stating that due to Barbara’s diagnosis of post-traumatic stress disorder and recurrent major depression, it was imperative that she get her medication or she might decompensate and become suicidal. (A list of those medications followed.)
Stallings immediately filed a motion to require correct administration of prescription medication, claiming that the DeKalb County Correctional Facility had not administered Barbara’s medications as prescribed. As a result, his client had become delusional, incoherent, scratched constantly at her skin, and appeared to be in a state of physical and mental breakdown.
As a result, Stallings said, it had become impossible for Barbara to assist him in her defense.
Barbara had reported, he claimed, that the DeKalb County Correctional Facility personnel had indicated that they planned to “wean her off her meds and would not fund additional doctor visits or prescriptions.” This, he said, could have extreme adverse effects, according to Barbara’s psychiatrist.
Stallings asked the court to remedy the situation immediately, and on December 18, Circuit Judge Randall L. Cole issued an order requiring the medical director of the DeKalb County Jail to provide the court a written report of the medicine regimen being administered to the defendant.
The DeKalb County Correctional Facility’s medical director responded to the court order immediately with a detailed accounting of the medical treatment at that time being administered to Barbara.
In response to Ms. Roberts’ claims that she is not receiving the medications as prescribed by her physicians,
the jail’s medical supervisor wrote,
copies of current medical records have been obtained from her physicians, and her medications, as prescribed by those physicians, are [as follows]:
Protonix, 40 mg, once daily
Neurontin, 600 mg, twice daily
Celexa, 80 mg, once daily
Seroquel, 100 mg, one or two tablets at bedtime
Ativan, 1 mg, four times daily
A physician affiliated with the hospital in Fort Payne, Alabama, had reviewed Barbara’s medication list, and had suggested one change in the prescriptions, which the medical supervisor said should allow Barbara to remain more lucid with fewer peaks and troughs.
Barbara had been evaluated that day, he said, and she was alert and oriented, ambulatory without assistance and with steady gait. She denied any scratches or lesions, and there were no visible abrasions or contusions. The supervisor said that Barbara did complain of nerve damage to the left arm with some noticeable tremors. This, he said, had been explained by Barbara’s regular physician with a diagnosis of paresthesia left hand. Her vital signs were normal. There had been no other changes in the medication during Barbara’s stay at the DeKalb County Jail, the medical supervisor reported, but they would continue to reevaluate for changes in her health status and adjust her medication as prescribed by the physician.
Upon reading the response from the DeKalb County Jail, Judge Cole issued the following order on December 19, 2006:
Based upon the medical records and nurse’s notes provided to the court by the DeKalb County jail in a report dated December 18, 2006, it is adjudged that the defendant’s “Motion to Require Correct Administration of Prescription Medication” is DENIED.
It appears that jail personnel are knowledgeable of defendant’s medical needs and are responding to those needs appropriately.
During the same time period, Schiess had apparently been involved in a similar situation regarding his own necessary medications, for his doctor had written a letter detailing his diagnosis and his prescriptions. Schiess, he said, was a patient he had been seeing since October 1997, and who was suffering from a severe major depression with anxiety and panic, as well as post-traumatic stress disorder. He said that Schiess had been taking his current medications for a number of years, and it was critical that he stay on them. If the Cherokee County Jail could not supply those medications, it was imperative that Schiess be transferred to a facility where they could be administered, the doctor said.
If he is not maintained on these medications, he may have a seizure,
the doctor wrote.
It would be dangerous for him to stop them.
36
Investigators had remained hard at work on the Darlene Roberts murder case, even though they had made what they felt were rock-solid arrests, and they continued to compile every scrap of evidence they could uncover and check out every tip they received, no matter how insignificant it might seem. In early November, they had gotten word from a Temple-Inland employee that another former worker might bear a closer look, and Investigator Mark Hicks interviewed the man.
He had worked with Temple-Inland Rome, he said, and he was terminated on March 24, 2006. The day he was terminated, Darlene Roberts sat in on the meeting and took notes, since she worked in human resources.
“She did not fire me,” the man said, “in fact, she and I had talked and she was looking at my case and was considering hiring me back. I never had any problem with Darlene. I had nothing to do with her death, and I didn’t know anything or plan anything about her death.”
The man said he had never met and did not know the people who were arrested for killing Darlene.
“The week Darlene was killed, I was working for a maintenance contractor, working at a Georgia Power facility in Cartersville, Georgia. I went in at five
A.M.
and worked until four.”
That information was quickly verified, and the man was no longer considered a person of interest in the case.
Another potential piece of evidence was checked out, but proved not to be connected to the murder. A shotgun had been confiscated in Lee’s Summit, Missouri, where Schiess’s mother lived, and had been sent to the Independence, Missouri, Police Department for test-firing “in regard to a homicide in Alabama.” Apparently, a shotgun similar to the one believed to have been the murder weapon had been in the possession of a relative of Schiess’s or Barbara, and was in nearly new condition and in its box. Since James Captain had given a statement that Schiess had told him he had given his mother a shotgun as a gift for her birthday, if that was indeed the case, the weapon was of interest to the Cherokee County authorities. It was photographed, test-fired, and the shell casings were sent to Alabama authorities. There was no connection to the Darlene Roberts murder case determined, and the murder weapon very likely still remained where Barbara had claimed it was, wrapped in green plastic and lying at the bottom of the Etowah River.
37
A motion to dismiss indictment was filed on December 8 by William M. Hawkins Jr. on behalf of his client Robert John Schiess III, asking the court to dismiss his indictment and alleging that the grand jury issuing the indictment was not qualified to do so.
The grand jury, the motion claimed, was made up of individuals whose names had been drawn from the “master jury box” of Cherokee County. The master jury box, in turn, contained cards identifying the names of every person entered on the “master jury list” of Cherokee County. That list itself had been prepared and derived solely and exclusively from the register of licensed drivers in Cherokee County.
The list of licensed drivers of Cherokee County was not a fair cross section of the community, the motion claimed, and cited several references from previous court decisions around the country.
The grand jury that returned the indictment against the defendant was selected from a grand jury list that did not contain a fairly representative cross section of the intelligent citizens of the county, including all significant identifiable groups, the motion stated, and therefore the grand jury was disqualified to return the indictment:
The Defendant had no knowledge, either actual or constructive, of the illegal composition of the grand jury or the grand jury list prior to the time the indictment was returned against him. The Defendant had no opportunity to challenge the grand jury before the indictment was returned against him.
The Defendant insists that he is entitled to have a duly qualified grand jury consider the charges against him and determine whether or not to return an indictment against him. For this reason, the Defendant moves to dismiss the pending indictment in this cause.
As the indictment against Schiess was not dismissed, the motion failed to impress the court with its arguments.
Rodney Stallings also filed a motion to dismiss indictment on Barbara’s behalf, on the grounds of inadequate notice. He asked that her indictment be dismissed on the grounds that it denied her of adequate notice of the charges against her and of the opportunity to prepare an effective defense. In support of the motion, the defense stated that Barbara was at that time before the court on an indictment dated November 2, 2006. She was charged with capital murder based upon her alleged involvement in the death of Darlene Roberts on or about April 6, 2006. The indictment, the motion claimed, charged Barbara with intentionally killing Darlene during theft/abduction. It did not specify what item(s) the defendant allegedly stole or attempted to steal, nor did it specify what weapon was purportedly used to commit the killing. Therefore, the motion stated, Count One of the indictment was impermissibly vague and deprived the defendant of proper notice of the charges against her, and called the indictment
devoid of any legal or factual specificity.
Another motion to dismiss the indictment was based “On Account of Discrimination in the Selection of the Grand Jury Foreperson, and Motion For Discovery of Grand Jury Foreperson Data.”
The court was being asked to dismiss the indictment returned against Barbara because of the systematic underrepresentation of blacks, women, and young adults (aged eighteen to thirty) in the selection of grand jury forepersons, citing sections of the Alabama Constitution, Code of Alabama, and the United States Constitution.
The motion stated that, upon information and belief, African-Americans, women, young adults, and other cognizable groups were systematically and discriminatorily excluded from serving as grand jury forepersons in Cherokee County, Alabama. The practice formed a pattern, the motion stated, and was part of a history in Cherokee County of the systematic exclusion of blacks, women, and young adults from the position of grand jury forepersons. This practice existed at the time the grand jury that indicted Barbara was selected, the motion claimed.
African-Americans and women constituted a cognizable, distinctive class of persons in the community under both state and federal law, the motion said, and their intentional exclusion from the position of grand jury foreperson violated an accused’s federal constitutional rights.
An additional motion charged that upon information and belief, the jury venire systematically underrepresented African-Americans, Mexican-Americans, Native Americans, women, and other groups, in proportion to those groups’ representation in Cherokee County. That underrepresentation, the motion stated, was statistically significant and unreasonable in relation to the number of such persons in the community. In addition, the motion said, that underrepresentation constituted part of a history and pattern of discriminatory and systematic exclusion of members of those groups from the grand jury pools in Cherokee County. The motion sought dismissal of the charges against Barbara for that alleged discrimination among the selected members of the grand jury that indicted her.
Rodney Stallings had played the race, gender, and age cards, all in one fell swoop, but the effort failed to get the indictment against his client dismissed. However, he was not yet finished objecting to the makeup of the grand jury, and filed additional motions to determine the composition of the Cherokee County jury lists.
Stallings filed a “Motion for Order of Access to, Inspection of, and Copying of All Jury System Records,” asking the judge to direct the Cherokee County officials who had direction and control over the jury system to provide access to, inspection of, and copying of any and all source lists, master lists, computer programming and data, and any other records in their possession, to a designated representative of counsel for the defendant, pursuant to Rule 16 of the Alabama Rules of Criminal Procedure, the Sixth, Eighth and Fourteenth Amendments of the United States Constitution, and the corresponding provisions of the Alabama Constitution.
Stallings noted that Barbara had filed motions challenging the composition of the grand jury that indicted her and of the jury panel from which her petit jury would be selected. Her motions alleged that the Cherokee County jury lists excluded large numbers of citizens who would otherwise qualify for jury service on account of, inter alia, their race, sex, age, or employment status. Those motions, Stallings said, were incorporated into the current motion by reference.
The defense also filed a “Motion for Order Permitting Discovery of Transcripts, Exhibits, Other Memorialization of the Grand Jury Proceedings, and List of Grand Jury Members.”
The motion asked for discovery of the grand jury proceedings and for an order directing the clerk of the Cherokee County Circuit Court or the Jury Commission of Cherokee County to produce records pertaining to the grand jury proceedings culminating in Barbara’s indictment.
In accompanying motions, dismissal of the indictment had been requested on a number of grounds challenging the propriety of the grand jury proceedings. To prepare evidence on those motions and to litigate those claims adequately, the motion said, Barbara’s defense must have access to and copies of the testimony, transcript, and exhibits from the grand jury proceedings for the October Term 2006, as well as a list of the members of the grand jury that returned her indictment.
In answer to Barbara’s motions, Judge David Rains issued a court order addressing the several issues that had been brought into question, and this time, the requests in the motions were granted.
Judge Rains stated that he had considered defendant Barbara Ann Roberts’s “Motion to Dismiss the Indictment Due to Systematic Underrepresentation of Cognizable Groups in the Composition of the Grand Jury” and “Motion for Order of Access to, Inspection of, and Copying of All Jury System Records.” His order read that Barbara’s legal defense would be allowed to conduct discovery concerning her claim of underrepresentation in the grand jury pool. He further ordered that the clerk of the Cherokee County Circuit Court would provide access to the defense of all the information and materials they would need to make an adequate determination as to whether the challenge to the composition of the grand jury was valid.
The judge ordered that a list of the Cherokee County grand jury pool members from, and including, 2000 through 2007 would be furnished to the defense, with data revealing each member’s age, race, and sex.
Also to be made available was a list of the Cherokee County jury commissioners from, and including, 2000 through 2007, with complete information on each commissioner’s age, race, and sex.
Barbara’s defense would be given all the information, materials, memoranda, and reports concerning the selection process for Cherokee County grand juries, including jury questionnaires, source lists, and venire lists.
Judge Rains ordered that a date would be set, at a time agreed to by the jury commission staff and the defense, when a representative of the defense would be provided with access to all computer data concerning the jury selection system in Cherokee County. At that time, Rains ordered, the director of computer services would explain to the defense representative all phases of the computer system relating to jury selection or other related tasks, and that the representative of the defense would be allowed to copy any and all records, programming, and data used in the preparation and maintenance of the master lists, the periodic issuing of summons to jury duty, and any other aspects of the selection process.
Judge Rains also ordered that a hearing on the defense’s motion challenging the composition of the grand jury pool would be scheduled when the ordered discovery was completed. At that time, he said, the defendant would be allowed to present evidence in support of the motion.