PART I
GOING TO COURT
1
THE ARREST
Norman, Oklahoma
April 2009
Kendy Killman was about four miles from her apartment in Norman, Oklahoma, when she saw the police officer in the rearview mirror. Her boyfriend, Steven, sat in the front seat. Her father was in the back. Everybody was tired. For the past two days, they had driven nearly 480 miles, to Springdale, Arkansas, and back, after an unexpected trip to see her grandmother in the hospital. The whole trip was last minute; she was driving in pajamas.
Her father got the call on April 17, 2009. His mother was in the hospital and the diagnosis wasn’t good. Killman’s car was fine for trips to the grocery store or to take her stepchildren Bubba and Brittany to school, but it wasn’t going to handle a trip out of state. Desperate, she called Kenny, her ex-husband and the father of their children. He had a blue 1996 Chevy Lumina. It was a bit beat up, but he said she could have it for $400. Killman gave him the money, stuck the title in the glove compartment, and went to pick up her boyfriend and father. The drive to Arkansas wasn’t complicated. North on Interstate 35 to Interstate 44. East to Tulsa, then a straight shot on Highway 412 all the way to Springdale.
After a short visit at the hospital, Killman and her clan spent the night at Grandma’s house. They went back to the hospital on the eighteenth. Grandma was taking a turn for the better. Killman’s father and boyfriend had to work on Monday. So they headed back to Norman, with one extra traveler on the ride home: Grandma’s dog. Dad didn’t want to leave the dog home alone while Grandma was recuperating.
On the drive home, Killman turned off Interstate 35 earlier than she normally would. Because of an accident, a news alert on the radio warned of a traffic backup on the highway near Oklahoma City. She was heading south on Sooner Road when she saw the cop. Killman wasn’t speeding, and she knew it.
“I wasn’t worried,” she told me later.
At first, the police car drove up beside her. Then, as they were about three miles from home, the officer dropped back, and turned on his flashing red and blue lights. Killman pulled over. The officer ambled up to her car and asked her to step outside.
As she got out, the officer told Killman that she was drifting a bit left of center, but that’s not why he pulled her over. Rather, while they were driving, he noticed what he thought was a crack in the windshield. Indeed, there had been one, but it was repaired, enough to not be a hazard. He could see that now. Pivoting, the officer asked Killman if he could search the vehicle. This is not an uncommon occurrence, but at least in theory, a police officer is supposed to have probable cause for such a search. They smelled marijuana, for instance, or witnessed erratic driving. This police officer didn’t mention any of those things, and Killman didn’t push it.
Standing there in her pajamas, tired from hours of driving and wanting to see Bubba and Brittany, who were staying with her mother, she consented. Never mind that she had only owned the car for less than two days, or that she bought it from her ex-husband, whom she had left in part because of his drug use.
As the officer and his partner looked through the vehicle, the three of them—Killman, her father, and Steven—sat on the curbside. In the trunk, under the carpet, one of the officers found something and placed it on the roof of the car. It was a pipe for smoking weed.
“Whose is this?” the officer asked. There were no drugs in the car. Just the pipe, which showed signs of previous use. There was residue in the bowl. Killman explained that she had just bought the car on Friday specifically for their trip to Arkansas. Keep in mind, she had no criminal record. She’d never been arrested. Though booze and drugs were constants in her life, she stayed away from them, having seen up close the impact it would have on loved ones. The officers were not swayed. Killman was cuffed and put in the back seat of the police cruiser. A tow truck was called for the Chevy. Her dad, Steve, and Grandma’s dog were left on the side of the road. It was around lunchtime.
“I was headed to jail for the first time ever,” she said.
In Cleveland County, the jail was in the basement of the courthouse. For seven hours—noon until 7:00 p.m.—Killman sat cuffed to a bench as the officer filled out paperwork and processed the evidence. Finally, they issued her a summons for a court appearance and let her go home. Without money or a car, she walked the distance herself, which was about a mile, southeast from the courthouse to her apartment on the back side of the Cottonwood Ridge complex. She was expected to be in court on Monday and appear before a judge.
* * *
Born to Kendall and Deborah Garrett on May 7, 1969, in Bartlesville, Oklahoma, Kendallia, who goes by Kendy, was named after her father. Her parents had her young. Kendall, a construction worker, was nineteen. Deborah was eighteen and worked as a waitress. Bartlesville was an oil boomtown, the home of the Phillips Petroleum Company, which was good if you worked for the company, the largest employer in town, and not so much if you didn’t.1 Few other employers in town could pay oil-industry wages.
Killman’s middle name, Wynette, was inspired by the country singer Tammy Wynette, whom her mother adored. Known as the First Lady of Country Music, Wynette was one of the first women to achieve commercial acclaim in country music, landing twenty songs at number one on the country charts from the late 1960s through the 1990s. Her songs, especially the sad ones, match parts of Killman’s story: “Stand by Your Man,” “’Til I Can Make It on My Own,” “D-I-V-O-R-C-E,” “My Elusive Dreams.”2
Killman had two siblings, a brother and a sister. Killman was five when her two-year-old sister died. It was a Sunday afternoon, and the family was gathered for her uncle’s birthday. The men were working on her papa’s truck. Papa was her mom’s father. The pickup truck was lifted on one side with a jack, so Papa could work on it, and several of the kids were in the bed playing together.
There was too much weight on one side of the truck as the kids were playing, and the truck started rolling backward off the jack, toward the street. Killman, her brother, and her cousin all jumped out. Carrie Alaine Garrett, who was two weeks from her third birthday, fell backward out of the truck. It rolled over and crushed her. Later, at the hospital, she was confirmed dead.
“Our lives were changed forever,” Killman says. “I was only five. I didn’t know what it meant, just that she was never coming home, and I would never see her again.”
Her parents filed for divorce (though they would later reunite) and, as Killman recalls it, boozed the pain away. They kept moving and uprooting the family: Killman went to two different schools for kindergarten, another for first grade, two for second—a trend that continued throughout her elementary school education. They moved in and around Bartlesville, then to Jet, off to Snyder, back to Bartlesville, and then in with her grandparents on her mom’s side. When she was in junior high, they moved to Dewey, just north of Bartlesville on Highway 75, in the northeast part of Oklahoma. The town of about 3,400 people sits just west of the Native American Osage Reservation.3 Killman had her own bedroom in the Dewey house, which was a first. It’s one of those little details that might seem insignificant, unless you happened to grow up poor and understood space as a scarce commodity. Getting her own room was a concrete sign that “we were doing okay.”
Being on the move was normal for the Garretts, as it is for many working American families. They follow jobs, or chase them, and end up in low-end apartments because they can’t afford much more, or because a history of broken leases makes them a bad credit risk.4 But for people living in poverty, mobility means something different than for folks with disposable incomes and stable careers. Too often, for poor people, mobility is involuntary, as a result of eviction, rather than a choice.
Killman didn’t grow up thinking of her family as poor. Her parents were always working. They had a roof over their heads. “I have lived from paycheck to paycheck my whole life,” she told me. “I wouldn’t know how to act if it was any different. What is poverty? It’s a thin line. I do have somewhere to live and I am not on the streets. But I still need food stamps to make sure everyone in my home gets enough to eat every month.”
In his 2004 book, The Working Poor, Pulitzer Prize–winning author David K. Shipler describes American poverty this way:
For practically every family, then, the ingredients of poverty are part financial and part psychological, part personal and part societal, part past and part present. Every problem magnifies the impact of the others, and all are so tightly interlocked that one reversal can produce a chain reaction with results far distant from the original cause. A run-down apartment can exacerbate a child’s asthma, which leads to a call for an ambulance, which generates a medical bill that cannot be paid, which ruins a credit record, which hikes the interest rate on an auto loan, which forces the purchase of an unreliable used car, which jeopardizes a mother’s punctuality at work, which limits her promotions and earning capacity, which confines her to poor housing.5
It is a cycle that can be difficult to escape, particularly when the criminal justice system is conspiring to keep you poor.
* * *
All day Sunday, Killman fretted over what to expect the next day in court. It was all speculation; she’d never been before. The Cleveland County Courthouse is a three-story, classical revival structure built with funds from the Public Works Administration in the late 1930s.6 It sits at the corner of South Jones Avenue and East Eufala Street, across from Legacy Trail Park. Designed by architect Walter T. Vahlgert, it is the third such courthouse built in Norman. The first one burned down in 1904.
When she arrived Monday morning, the courtroom was packed. This is a common sight in municipal and county courthouses across America on what many jurisdictions refer to as “law day.” It’s the day the judge goes through a massive list of folks who have been arrested on ordinance violations or misdemeanors: traffic tickets, driving under the influence, noise violations, shoplifting and petty theft, bar fights, and minor indiscretions. These are the cases that clog the American courts. A few defense attorneys mull around a table near the prosecuting attorney, or sometimes they hang out in the empty jury box, waiting to hear their client’s name.
It’s a cattle call. There are dockets like this for traffic court, evictions, and criminal arraignments everywhere in America. Here’s how it usually goes: The judge calls your name, confirms that you are in attendance. You’ll be asked if you have an attorney. Then you wait to hear your next court date, which is set for a trial or a plea. When you sit in such courtrooms, it often takes half a day or more for the few minutes you’ll get with the judge. There might be a few inmates brought in, shackled and in orange jumpsuits, who are there to appear on a felony arraignment or to make a plea, but in most courtrooms in America, the overwhelming number of these cases are misdemeanors.7
In her book Punishment Without Crime, which examines the failures of the criminal justice system to deal with such misdemeanor dockets, law professor Alexandra Natapoff writes, “Because the petty-offense process is so large, it tends to move cases fast,” and thus “has earned it some choice nicknames like ‘cattle herding,’ ‘assembly-line justice,’ ‘meet ’em and plead ’em’ lawyer, and ‘McJustice.’ The Supreme Court has worried that the sheer volume of misdemeanors ‘creates an obsession for speedy dispositions, regardless of the fairness of the result.’ In practice, this speedy volume means that people’s rights and dignity often get trampled.”8
As Killman told me, describing her first such court experience, “Nothing is sacred. Everybody knows everyone’s business.” Over the years, as she ended up in the same courtroom time and time again, she would come to recognize some of the same faces. They were faces of American poverty, tethered to a system seeking payment for alleged sins.
Finally, it was her turn. “Kendallia Killman?”
She stood and told the judge she didn’t have an attorney and couldn’t afford one. “Fine,” he said. “Fill out an application for a public defender and bring it back with $40.” The Sixth Amendment to the U.S. Constitution guarantees federal criminal defendants the right to an attorney, even if they can’t afford one.9 It says: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.”
It wasn’t until 1963, though, in Gideon v. Wainwright, that the U.S. Supreme Court determined that the right to counsel applied to state courts, not just federal ones.10 In 1961, Clarence Earl Gideon was accused of stealing money from a vending machine in a pool hall in Panama City, Florida. He told the judge that he couldn’t afford an attorney so it was decided that he would have to represent himself. After he was convicted, Gideon filed a habeas corpus petition with the Florida Supreme Court, seeking his freedom because his constitutional right to a defense had been denied. The U.S. Supreme Court agreed, and in its ruling made clear that the Sixth Amendment also applied to states in felony cases. Gideon was eventually appointed an attorney and retried. He won. In 1972, the nation’s high court extended that protection to any case in which imprisonment is a possibility.
Since then, every state has developed a public-defender system of some kind, though how they operate, and who funds them, varies wildly.11 Twenty-six states, for instance, operate state-funded public-defender systems. Their funding, like those of prosecutors and judges and law enforcement, comes from a statewide tax base. Most other states use a combination of state-funded and contract systems, the latter being where private attorneys are paid a flat fee to represent indigent clients. These attorneys are not exclusively tied to such contracts. They also maintain a private practice with other, higher-paying clients.
Oklahoma is one of the states that uses the latter system. The two most populous counties in the state—Oklahoma County and Tulsa County—have dedicated public defenders, funded by county taxes.12 For the other seventy-five counties, including Cleveland County, there is the Oklahoma Indigent Defense System, which uses private attorneys paid flat fees on contract. Both systems are woefully underfunded, leaving these lawyers tasked with defending poor people with unmanageable workloads and a financial incentive to move through them quickly, often at the expense of individual cases.13
“Chronic underfunding has led to drastic resource disparities between prosecutors and defenders, undermining the very basis of our criminal legal system,” determined the Brennan Center for Justice, in a report issued in 2019 titled “A Fair Fight: Achieving Indigent Defense Resource Parity.”14 It found that between 2008 and 2012, as court costs were rising, public defender budgets dropped in twenty-six states. And seventeen states provide only county funding for public defenders, leading to wide disparities in representation. Why? Because prosecutor offices are exponentially better funded. If you think of prosecutors and public defenders as opposite sides of a mathematical equation, where both sides are supposed to be equal, the problem is out of balance, tilted in favor of the side of the equation that seeks to put people in jail, and against the side that seeks to protect defendants’ constitutional rights.
Copyright © 2021 by Tony Messenger
