Guilty When Black. Carol Mersch
however, was not privy to the situation in the apartment before the fire. His post-fire observations and applied data techniques were derived from his Tulsa Fire Department training and experience. And his knowledge of the children’s location and injuries was obtained from a second-hand account, not his own, an account which Chrisandria would later find disturbingly inaccurate.
Milstead was excused from the stand and McAmis called Police Detective Jeanne Mackenzie to the stand. Mackenzie was one of the two detectives who interrogated Miashah immediately after the fire. An attractive blonde who spoke with a slight lisp, she was a nine-year veteran of the Tulsa Police Department and had spent three-and-a-half years as a child crisis detective.
McAmis: “When did your interview take place in relation to when the fire had taken place?”
Mackenzie: “It was the day after the fire.”
McAmis: “When you spoke to the Defendant, did you ask what she had been doing before the time of the fire?”
Mackenzie: “Yes. She said that she was cooking on the stove, that she left it on low, that she left the apartment to throw out—to take out the trash.”
But when asked again only seconds later, however, Mackenzie contradicted herself, saying Miashah told her she left the stove on “6”—six levels higher than low.
“Did she tell you whether or not she had locked the door to the apartment?” McAmis asked.
“Yes, she said she locked the door because the oldest one would let the youngest one out.”
“Did you ask her if she had done anything else outside the apartment other than go to take out the trash?
“Yes, she said that she talked to a gentleman for two or three minutes.”
“Okay. Did she tell you, at that point in time she left the apartment, what the two girls were doing?”
“They were in her bedroom, watching TV.”
“Did you talk to her about time frames and how long she had been gone?”
“Yes, I asked her when she went to talk to the gentleman, if maybe she was gone more than eight minutes. And her response was ‘I hope not.’”
“Did you ask the defendant whether or not she had gone to purchase marijuana from any individual?”
“Yes, I did. She said that was not true.”
“Did she make any statements to you about a pop machine?”
“Yes, towards the end of the interview, I asked her about the drink she had in her hand [in the surveillance photo]. She stated that the plan was to go to the dumpster, go to the pop machine, and go back to the apartment. And that’s when—she called him Bro—waved her over and she went down to his apartment to talk to him.”
“Did she tell you anything else at the fire scene?”
“She stated that she was patted down by somebody from the fire.”
Detective Mackenzie’s confusion about the heat levels on the stove only added to Chrisandria’s belief that the police, as well as the Fire Department, hadn’t even a basic understanding of the case they were investigating, and were floundering in preconceived assumptions and shared narratives among the police and fire investigators. She said, “I mean, the main thing is, there is no ‘6’ on the dial! So, I don’t know where they get ‘6’ from.”
The stove was now gone, likely impounded somewhere in the catacombs of the Fire Department warehouse or deposited in a rusting city trash heap. Retrieving the knobs from the burners to verify heat level markings would be nearly impossible.
After the witness testimonies were concluded, Judge Youll grappled with McAmis’ contention that leaving a child unattended for eight minutes would constitute neglect.
“What it gets down to is: Is this a case, then, of child neglect? Reviewing what the definition of child neglect… under which definition of neglect is the State proceeding? Do we know?”
“Yes, Your Honor,” McAmis responded. “Under the failure to provide either adequate shelter and/or adequate supervision by leaving these two, a two-year-old and a four-year-old, approximately, alone and unsupervised in an apartment that then caught fire and consumed both of them.”
“I mean, is the neglect because it actually caught fire?” the judge persisted. “Are you saying that—at least based on the testimony, the time frame is eight minutes—the fact that the children were left unsupervised for eight minutes is neglect?”
“Yes, Your Honor… Whether or not the time frame really is eight minutes, Your Honor, or whether or not—”
She didn’t get any further.
“That’s all we have today, right, is eight minutes?” the judge queried. “Eight minutes being unsupervised is sufficient for child neglect?”
“Yes, sir.”
“So the State could file: one, that the child was left unsupervised for a minute, and something happened and then that is sufficient, that would be the State’s position?”
At this point, McAmis fell back on the seasoned prosecutor technique of throwing spaghetti at the wall by reciting a vivid cinematic description of events.
“I think it’s always fact-dependent, Your Honor. It would determine whether in what condition you left the children. In other words, if you were cooking in grease that had been from the night before and you had it turned it up to ‘6’ and you left and dead-bolted the door and then went and talked to different people in the apartment complex, for whatever length of time—I do believe that it’s always fact-dependent, Your Honor.”
Judge Youll nodded to Miashah’s attorney, “Ms. Holmes?”
“Your Honor, I would disagree with the State’s position. In order to even use child neglect as a predicate for this offense, they’d have to show that the actions taken by Miss Moses were imminently dangerous and also show a depraved mind. Stepping out to empty the trash, we all do it on a daily basis. We don’t know whether the fire started two minutes before—two minutes after she walked out or three minutes or five minutes after she walked out. She was conducting an activity that’s done in the regular course of everyday business. And I would argue that it’s not imminently dangerous to lower the fire on a stove and take the trash out. We go about, again, we go about our business in our homes every day.
Holmes continued: “But my point is, Your Honor, I don’t think she carried out any activity that could be considered as negligent. She actually took steps to make sure that nothing happened. She lowered the heat on the stove. She told the detective that she locked the door because sometimes the older child would let the younger child out. It’s a horrible situation but in trying to prevent one problem from occurring, this fire cropped up. I think Miss Moses showed that she was very responsible and not negligent.”
At this juncture, the judge posed another query to McAmis.
“Would it have been neglect had a fire not occurred?”
“It could have been, Your Honor. Depending on the fact circumstances, yes, to leave two children…” she said, doggedly diverting attention away from the fact that Miashah was gone for just a few minutes leading up to the horrible outcome. She argued that it didn’t matter how long Miashah was gone, whether it was one minute or eight minutes.
Judge Youll persisted, “No, I understand the facts of this circumstance. What I’m saying, in this particular set of facts, had a fire not occurred?”
McAmis maintained her position.
“I believe it could have been, Your Honor. Again, that would be an issue of fact for a jury.”
Judge Youll reluctantly yielded to the DA’s position. He ordered Miashah held without bond on two counts of second-degree murder and bound over for arraignment by Judge James Caputo in the Criminal Division.