The crimimal justice system is frequently distorted by psychopaths, people without conscience or scruple who scam vulnerable people then lie about it with feigned sincerity.  Psychopaths come in many shapes and sizes, but the common characteristics are lack of conscience, a delight in deception for its own sake, shallow emotion, and an inclination to exert power over other people.  In short, psychopaths are much like the dastardly villains we meet in old timey melodramas.

Psychopaths are famously resistant to therapy.  They like being what they are and doing what they do.  Some guardians of liberal orthodoxy refuse to believe in psychopathy.  The idea that some people are born . . . well, bad, goes against the progressive grain.  You can’t blame this condition on the deprivations of childhood, bad parenting or a dysfunctional society.  To all appearances, psychopaths are born that way and there isn’t much, short of prison, that anyone can do about it.

That is not to say that all psychopaths are criminals or vice versa.  The typical CEO personality profile (supreme confidence, decisiveness and ambition mixed withan appetite for competition) is so close to the profile of your average psychopath that the two are easily confused.  Psychopaths thrive in the business world because their naked self-assertion is often mistaken for leadership.  They push the envelope as far as the regulations will allow.  In a weak regulatory environment, psychopathic entrepreneurs run wild and nightmare scenarios unfold.

Unlike most wrongdoers, psychopaths don’t choose to lie, cheat and manipulate.  They lack the capacity for honesty and empathy.  They have no conscience.  Conservatives believe that all behavior is chosen.  Liberals believe that all people are inately good.  Psychopaths challenge the philosophical assumptions of folks on both sides of the ideological divide.

Psychopaths create enormous problems for judges, prosecutors and investigators because they are extremely convincing and utterly lacking in credibility.  Studies (Eckman, O’Sullivan and Frank, 1999; Malone and Depaulo, 2001) have consistently shown that professionals charged with determining the credibility of witnesses (judges, prosecutors and investigators) believe they know when they are being lied to but are no more able to detect deception than the average college sophomore.

The harsh realities of the legal world create powerful temptations for legal professionals.  You can’t nail the bad guys without evidence and that often means inducing Perp A to flip on Perp B.  Prosecutors and investigators think they know what went down; they just need someone with first-hand information to tell the story straight.

In the real world, legal professionals often have no earthly way of knowing what went on behind closed doors.  Unless Perp A spills the beans, investigators and prosecutors can only play a guessing game.  But with no empirical standards of varification, why should legal eagles believe that Perp A is telling the truth about Perp B?

It is at this point that legal professionals face a stark and unappealing choice.  They can decide to believe Perp A or they can let the bad guys win.  There is no middle ground.

This explains why recent advancements in DNA testing technology have revealed a rash of wrongful convictions.  In virtually every case, prosecutors got it wrong because a star witness got it wrong.  The subjective frailty of the human memory is sometimes to blame.  More frequently, however, Perp A was lying about Perp B.

The problem becomes particularly acute when Perp A is a full-blown psychopath; and when we’re dealing with a criminal situation there is at least a 25% chance that you are.

It isn’t all that difficult for a skeptical observer to see through the manifold lies of a typical psychopath.  Psychopaths can be effective liars because they appear to be completely sincere; but that doesn’t mean they’re particularly good at telling a convincing and consistent story.  They do no better on polygraphs than the average person.  If you check their version of the truth against the testimony of other witnesses or documentary evidence, the cracks in the plaster aren’t hard to spot.

The problems arise when no credibility tests are applied.

Most of the wrongful convictions Friends of Justice has tackled have been driven by gullible (or willfully indifferent) prosecutors who took the testimony of a psychopath and ran with it.

It started in Tulia, Texas where a textbook psychopath named Tom Coleman convinced a sheriff, a district attorney and eight juries that he had purchased drugs from forty-seven people on the poor side of town.  Like most psychopaths, Coleman was drawn to danger and delighted in deception.

Coleman couldn’t produce a shred of evidence to support his claims.  Incredibly, he didn’t have to.  Sheriff Larry Stewart and DA Terry McEachern placed implicit trust in their undercover man even when (and I’m not making this up) Coleman was arrested on theft charges by officials from a other country in the middle of an eighteen-month operation.

A group of Tulia citizens decided to fight the Coleman sting.  We called ourselves Friends of Justice.  We had one thing in common: none of us were lawyers.  Lawyers gradually grow so acclimated to the criminal justice system that they accept the most outlandish irregularities without complaint.  There are exceptions, of course, but most of them work in the reform community.  Work-a-day attorneys adapt or die.

Tom Coleman’s lies and distortions were finally unearthed in an evidentiary hearing in the Spring of 2003.  After a week of testimony, Dallas Judge Ron Chapman had heard enough.  Tom Coleman, he told the court, “is simply not a credible witness under oath.”

It wasn’t so much that you could prove Coleman was lying (although you often could); it was that the man (as one police officer testified) “would tell you a lie when the truth sounded better”.   His word was worthless.  Since you couldn’t tell when he was lying and when he might be telling the truth, all convictions based on his testimony had to be thrown out.

Coleman was never diagnosed as a psychopath, but when you consider his career in, before and after Tulia there is no other explanation for his bizarre behavior.

While the Tulia mess was still being sorted out, I received a call from Ann Colomb of Church Point, Louisiana.  Ann and three of her sons were facing federal narcotics conspiracy charges based on the uncorroborated testimony of several dozen convicted drug dealers.

After pouring over hundreds of pages of “discovery” provided by federal investigators, the truth began to emerge.  Everything could be traced back to Dexter Harmon, a drug kingpin who once used a club in Church Point as a front for his low-down ways.  When Harmon was approached by federal investigators he saw a glorious opportunity to trim decades off a stiff sentence (there is no parole in the federal system).

Harmon had no personal dealings with any of the defendants, but he knew every drug dealer, major and minor, within a fifty mile radius of Church Point.  A few strategic letters to fellow federal prisoners and “jail mail” began to trickle into the mailbox of an opportunistic Assistant US Attorney named Bret Grayson.

Months later, as the inmate grapevine spread word that the feds were investigating “the Colomb family”, the trickle became a flood.

It wasn’t long before information about the Colombs (or Colones, or Colognes–the name is spelled variously in the letters Grayson received) became a marketable commodity within the federal prison system.  One inmate paid $2400 (his girlfriend in the free world acting as the conduit) for identifying  information on Ann and her three boys).

Dexter Harmon is a psychopath.  Thanks in part to prosecutorial naivete, Harmon was able to trim a multi-decade federal sentence down to seven years.  At trial, Harmon was far more convincing than the rest of the witness-avalanche he inspired.  He talked about his love for the Lord Jesus (back in the free world, Harmon has started his own church) and how much he regretted working for the Devil.

It was precisely what white jurors in the Bible belt were itching to hear.

There are more psychopaths walking around than you would imagine.  They come in different shapes and sizes, and some fit the standard profile better than others, so generalizations can be dangerous.  Some are violent; some aren’t.  Some are sadistic; some aren’t.  Some are drawn to criminal activity, others work their scams on main street.  But by a common estimate, one out of every 100 males and one out of every 300 females fits the psychopathic job description.  For male inmates it’s one-in-four and with dangerous offenders the ratio is one-in-two.

That’s why legal professionals need to ask hard and often inconvenient questions about their potential witnesses.  When you’re dealing with criminal activity chances are at least one-in-four that Perp A has no interest in the truth and will tell you exactly what he thinks you want to hear.

Charges against Ann Colomb and her sons were dropped when two erstwhile witnesses admitted to taking part in perjury parties designed to get Dexter Harmon’s recruits singing from the same sheet music.  These guys didn’t mind lying on a real dealer, but one glance at the Colombs and they knew they didn’t belong in prison.  The last straw came when Ann’s son, Danny (a devout Roman Catholic) started holding prayer meetings in his cell.

Contrary to popular belief, not all preachers and drug dealers are psychopaths.

In June of 2008, an all-white jury convicted Alvin Clay, a Little Rock attorney and real estate broker, of participating in a mortgage fraud conspiracy.  The only witness linking Clay to the scheme was a Burger King manager named Donny McCuien.

Like Tom Coleman and Dexter Harmon, Donny McCuien is a grade-A psychopath.

I have studied a fair bit of psychology, but have only a rough-and-ready feel for the phenomenon.  Nonetheless, everything I have read on the subject confirms what I feel in my bones.

A second hearing was held on January 6th on Alvin Clay’s motion for a new trial.  Clay is arguing that Donny McCuien lacks credibility under oath, a fact the jury would have grasped if his attorney had been doing his job properly.

Take the case of Patricia Dean.  At trial, McCuien testified that he had never sold or rehabbed houses in his entire put-together.  In rebuttal, the defense produced a handful of witnesses who testified that they had done rehab work for McCuien.  Finally, Patricia Dean told the jury that Donny had sold her a property on 2600 Marshall St.

Either all these witnesses were lying or Donny McCuien had perjured himself.

When McCuien took the stand, attorney George Hairston asked him about Patricia Dean:

Q. Do you know 2600 Marshall Steet?

A. I don’t recall that address.

Q. Do you know Patricia Dean?

A. I don’t know Patricia Dean.

The government has argued that Ms. Dean was confused; it was actually Donny McCuien’sfather, Donny Sr., who sold Dean the house.

Why was Assistant US Attorney Steven Snyder so sure Dean had it wrong?

Because if she was telling the truth he had been duped by his star witness.  And if McCuien was lying about the house at 2600 Marshall he was capable of lying about pretty much anything.

Of course, Mr. Snyder, had he been so inclined, could have checked out the real estate records for himself.  But he left that detail to Alvin Clay.

Patricia Dean had it right all along.  Not only did Donny McCuien Jr. sell 2600 Marshall to Patricia Dean, a copy of his drivers license was in the file.

We’re just getting started.

Asked at trial if he had ever sold a house, Donny McCuien said he hadn’t.  Asked if he had ever rehabbed a house, he answered in the negative.

Asked by defense counsel if he had ever sold a house, McCuien answered, “I ain’t never sold a house.”

US Attorney Steven Snyder pressed the point with his lead witness:

Q. Have you ever actually held yourself out to the public to be a building contractor or subcontractor?

A. Not at all

Q. Did you have any intention of doing any construction work?

A. Not at all

Q. Did you have a building contractor’s license?

A. Not at all

Q. Did you have any intention of getting a contractor’s license?

A. No, I didn’t.

Q. Did you have a business license?

A. No

Q. Did you have any intention of getting a business license?

A. Not at all.

Q. Did you have a corporate surety bond?

A. No, I did not.

Q. Did you have any intention of getting a corporate surety bond?

A. No, I didn’t.

Q. Had you ever run a construction company?

A. Never

Q. Did you have any expertise or know anything at all about the building trade, such as

electrical, plumbing, mechanical, framing, masonry?

A. Not at all.

Q. Did you have any expertise whatsoever in construction?

A. No, I didn’t

Q. Did you have any intention of learning anything about construction?

A. No, I didn’t

Q. Did you have the capacity of running or operating a construction company?

A. No, I didn’t

Q. Did you ever do any building contractor’s or subcontractor’s work after you

formed the corporation?

A. No, I didn’t.

 McCuien knew exactly what Mr. Snyder wanted to hear, and every word of his testimony (apart from the spelling of his name) was a lie.

Since the trial, Alvin Clay has been making inquiries.  No stone has been left unturned.  The results are staggering.

1) McCuien formed McCuien Property Management and Construction on 10-23-2002 before he had met Alvin Clay.  He admitted to this at trial, but said he only started the company at the urging of Ray Nealy.

2) McCuien formed American Alliance Business & Finance Consulting, LLC  on 1-19-2005 around the time that he, Clay and Ray Nealy were indicted on fraud charges.  At the hearing on January 6th, witnesses testified that McCuien purchased homes on behalf of American Alliance Business and Finance Consulting.

3) McCuien started Buy Houses For Less on 9-16-2005 and bought a number of homes on behalf of this business.

4) Finally, on 5-15-2006 (two years before he told Steven Snyder that he had never presented himself to the world as someone who could do construction, rehab or contracting work) Donny McCuien formed Complete Construction of Little Rock, LLC.   At the January 6, 2009 hearing, Ronand Smith testified that he helped McCuien rehab at least nine properties for Complete Construction in 2006.

Ronald Smith met Donny McCuien at church.  Donny told Smith that he did contracting work and asked if Smith would like to work for him.   One of the properties they worked on was owned by the pastor of the church McCuien and Smith attended.  “I repaired holes in walls, did minor electrical, broken windows–anything to bring them up to shape so they could be sold.”

Donny McCuien was a hands-0n employer who visited the work site on a daily basis and took Ronald Smith with him to Home Depot and Lowe’s to pick up supplies.  On occasion, McCuien was employing a crew of six men.  “He was over me and I was over everybody else,” Smith testified.

But there were some irregularities.  “Donny gave me cash money,” Smith said.  In fact, everybody was paid in cash: “Nobody got a check from the construction company.”  Moreover, “He never completed the work.  He’d take me off one house and put me working on another house before the work was done.”

Several other witnesses (most of them located in recent weeks by Alvin Clay) shared horror stories featuring the government’s star witness.  J.B. Banning testified that McCuien approached him about borrowing money so he could buy a property at 1870 Dennison.  Banning bought the property himself and deeded it back to McCuien.  Donny turned around and took out a second mortgage on the property as if the first mortgage didn’t exist.  At the time, McCuien was doing business on behalf of Buying Homes for Less.

Asked his opinion of Donny McCuien’s reputation for honesty, Banning smiled ruefully.  “All I can say is that I’d never do business with him again.  I have difficulty believing anything he tells me.”

April Flowers, a woman mentioned in passing during Clay’s trial in June of 2008, finally appeared in court.  An employee of the Little Rock Democrat-Gazette, Ms. Flowers testified that she had bought at least three homes from Donny McCuien.  The transactions followed a pattern that will be familiar to anyone who followed the Clay trial: the houses were purchased sight unseen; Donny McCuien and Ray Nealy put money into her checking account to qualify her for a mortgage, then yanked the money out as soon as the check was completed; finally, she was paid $3,000 after each home purchase as a buffer against sticker shock.

Not surprisingly, Ms. Flowers couldn’t make the mortgage payments on the properties she purchased from McCuien and Nealy and the houses went into foreclosure.   When she was notified by the IRS that she owed $10,000 in property taxes, she contacted the FBI.

In 2003, long before Clay, Nealy and McCuienwere indicted, FBI agent Rodney Hays interviewed April Flowers.  Hays learned that Donny had been intimate with his hapless mark (yet another symptom of psychopathy) and that she had met McCuien long before Nealy entered the picture.

This means that the FBI knew from the beginning that Donny McCuien had a well-established reputation as a real estate con man.  If Nealy and McCuien pulled the same scam on April Flowers that they pulled on the five buyers mentioned in the eventual indictment, why were Nealy and McCuien never indicted for these crimes?

Because Alvin Clay wasn’t involved.  The US Attorneys Office never cared about a couple of two-bit street hustlers like Nealy and McCuien–they were after Clay.

The most impressive testimony at the January 6th hearing came from Ruth Kingsberry, a real estate agent and mortgage broker who moved to Little Rock in 2004.  In August of 2006, Donny McCuien told Kingsberry that he had a home under contract but he needed some money for rehab work.  Donny claimed to have a construction business and gave her a card bearing the name of Complete Construction.  Kingsberry advanced McCuien the money and also hired him to make some repairs and upgrades on her personal residence.  The work was initiated but never completed.

As handyman Ronald Smith indicated earlier in the hearing, starting projects he had no intention of completing is part of Donny McCuien’s modus operandi.  Several witnesses testified at Clay’s trial that they had done rehab work on the five properties included in the indictment, but had been yanked off the job before the work was done.

And yet McCuien told USA Snyder that he has never done any rehab at any point in his life, that he didn’t have the tools or the know-how to do rehab work, and that he has never held himself out to the public as a carpenter, a rehab man or a contractor.  One of the references in McCuien’s 2006 application for his contractor’s license stipulated that Donny has been been doing construction work for ten years–that is, since 1996.  Given McCuien’s age, that sounds about right.

Ms. Kingsberry gave  McCuien $7,000 for rehab work and advanced him an additional $1200 to buy materials for the project on her home.  “He failed to follow through,” she stated bluntly.  “He’s not a trustworthy person at all . . . it was just one lie after another.”

Kenneth White, Ms. Kingsberry’s fiance, corroborated her account.  “Donny McCuien is very gifted in the promises he makes,” he said, “in that area, he is very believable.”

Finally, Jason Profit testified that in 2006, he sold a home to Donny McCuien (working under the auspices of Buying Houses for Less) on behalf of his grandmother, Lottie Gilmore.  Although McCuien agreed to a purchase price of $34,000, he had Jason and Lottie sign a piece of paper stating that they owed him $17,000.    When he asked them to sign, Donny explained that the document simply indicated his interest in the paper.

Have you heard enough?  I could elaborate endlessly.  The more Alvin Clay digs, the more damning information he discovers.

So how is Steven Snyder and the US Attorneys Office going to respond to these shocking revelations?

More to the point, since FBI Agent Rodney Hays had listened to at least half a dozen people describe McCuien’s M.O. prior years before Clay and company were indicted, why did he place such implicit trust in Donny McCuien?  And why did US Attorneys George Vena and Bob Govar, two of the most experienced prosecutors in Arkansas, believe that a notorious swindler like McCuien could be trusted on the witness stand?

Only one answer makes sense.  Hays sponsored McCuien’s credibility because this was his first case as an FBI Agent and he knew Govar and Vena were emotionally invested in nailing Clay.  Both men had been professionally embarrassed by Clay.  Shortly before Hays and the FBI entered the fray, Govar and Vena had forced Clay to withdraw from a contentious case in which Clay was alleging prosecutorial misconduct.  When Clay showed up at a subsequent hearing, Vena tried to have him removed from the courtroom.  The animus was patent, visceral and personal.  Hays got the picture and performed accordingly.

But when the entire Eastern Division of the Department of Justice was recused from the Clay case (ostensibly for the sake of appearances), why did USA Snyder decide to present Donny McCuien to a federal jury as a credible witness?  Unlike Mssrs. Vena and Govar, Snyder bears no personal grudge against Alvin Clay.

It doesn’t make sense until you understand the kind of prosecutorial culture that shapes the careers of men like Govar, Vena and Snyder.  The system is designed to bust the bad guys and it is naively assumed that United States Attorneys are smart enough to know who is lying to them and who is telling the truth.  This belief is ungrounded.  When one prosecutor decides to prosecute a defendant everyone assigned to the case is inclined to follow suit.  Snyder couldn’t drop the charges against Clay without validating the notion that Govar and Vena were guilty of vindictive prosecution.

Since a hard-charger like Alvin Clay was likely to sue the government for wrongful prosecution, Snyder had little choise but to follow through with a tainted case.  Had he given the matter any thought he would have known that Donny McCuien was a psychopath; a man whose word under oath is utterly worthless; a man who will say whatever he thinks is in his own best interest with no regard for the truth.

Donny McCuien, like all true psychopaths, delights in deception.  Psychopaths are impulsive, they like to play for high stakes, and they are generally addicted to excitement.  Psychopaths love to toy with counselors and legal professionals; it’s like a game.

But here’s the catch.  Psychopaths are enthusiastic liars, but they aren’t necessarily good liars.  Bernie Madoff was able to string several thousand investors along for years before his financial house of cards imploded, but Donny McCuien is no Bernie Madoff.  Most psychopaths think in the short-term with little regard for long-term consequences.  They make mistakes because they are impatient.

First, McCuien scammed several dozen people by selling, buying and partially rehabbing several dozen low-end properties in Little Rock.  Then he scammed FBI Agent Hays.  Next, he scammed AUSA Snyder.  Finally, he scammed an all-white jury.

And that’s why these cases bother me.  Unless the defendant has smoking-gun proof of innocence (and in a he-said-she-said case they almost never do) a jury will go with the government almost every time.

Prosecutors who sponsor psychopaths should be charged with suborning perjury.

Will Donny McCuien scam Judge Leon Holmes?

I remain hopeful.  Holmes is a humble, gentle, respectful man who doesn’t have a cynical bone in his body.  Although he holds some very conservative views on social issues I haven’t seen any evidence that these opinions intrude into the courtroom (Rollingstone’s recent suggestion that he is one of the most dangerous judges in America notwithstanding).

Judge Holmes will eventually conclude that Donny McCuien is simply not credible under oath because this is the only conclusion the evidence will support.

But will that be enough?

Judges hate to take a case out of the hands of a jury.  Our legal system is based on the assumption that twelve good American citizens will almost always get it right.  No one in the legal system likes to suggest that juries are prone to error.

This is particularly true when the jury’s miscue is compounded by prosecutorial misconduct.  Using an obvious psychopath as your only real fact witness rises to the level of prosecutorial misconduct.  The government’s only defense is that (a) all the people contradicting Donny McCuien are lying, (b) that Donny McCuien didn’t mean what his testimony appears to mean, or (c) that although Donny McCuien lied under oath about everything else, he was telling the truth when he implicated Alvin Clay in a fraudulent real estate scam.

Making all of this even more interesting is the fact that Ray Nealy goes to trial three months for now.  I have it on good authority that Nealy is insisting that Clay had no idea that anything fraudulent was afoot.  If Nealy testifies to that effect the waters will really get muddy.

The easy route for Judge Holmes would be to side with the government.  He could express a measure of concern about the disconnect between McCuien’s testimony and that of virtually every other witness but still conclude that the jury, not the judge, must be the ultimate trier of fact.

But should it be up to the jury to evaluate the credibility of a man like Donny McCuien?  If FBI agent Hays didn’t realize he was being lied to (or didn’t care) and if USA Snyder mistook a psychopath for a credible witness, how was the jury supposed to figure it out?

Although this was Rodney Hays’ first case, FBI training is extremely rigorous.  Are FBI agents taught to detect psychopathy?  I have no idea; can anyone enlighten me?  Are US Attorneys trained to recognize a psychopath when they encounter one?  If so, why did a poster boy for psychopathy like Donny McCuien slip past them?

There can be only one just conclusion to this melodrama: Judge Leon Holmes (following in the tradition of Ron Chapman in Tulia and Tucker Melancon in Lafayette) must rule that, no matter how much he hates to take a case away from an American jury, in this instance he must do so.  Any other decision would pave the way for a grave miscarriage of justice.

I’m not a psychologist; but I know Donny McCuienis a full-blown psychopath as well as I know my middle name is Gordon.  This isn’t rocket science.

But what if I’m wrong?  Call in Bob Hare, formerly of the University of British Columbia, the world’s foremost expert on psychopathy since 1963.  Have Hare examine Donny McCuien and then check out the transcripts of Alvin Clay’s trial and the two hearings held thus far.   Can there be any doubt what Dr. Hare would conclude?

This isn’t just about Alvin Clay, just as Tulia wasn’t just about 47 black defendants in the Texas Panhandle.  Whether they realize it or not, every prosecutor in America encounters dozens of psychopaths every year.  Some cases can’t be made persuasively unless you put one of these people on the stand.  That’s unfortunate.  But psychopaths have no interest in the truth and they can lie without remorse.

Because their testimony has the cash value of an expired McDonald’s coupon, you run the risk of wrongful conviction whenever you put a psychopath on the stand.

Alan Bean, Friends of Justice