tsarnaev_drawing

Well, I have resisted getting into the Tsarnaev case. However, it represents the perfect storm of many of the themes we’ve been exploring in recent posts: an impossible fact pattern, a Defendant who is universally reviled after killing or maiming a bunch of innocent bystanders (including a small child), pundits falling all over themselves to see who can say the stupidest thing… and now my favorite, a small snippet of evidence demonstrating my entire point about how this type of evidence can be misleading and must be considered in context. Perfect.

Last point first: we are now in the “Penalty Phase” of the trial. At least as I type this we are – by the time this is posted it will probably be over. I predict, contrary to just about everyone I know, that the jury won’t vote for Death. We shall see. The misleading snippet of “evidence”, to use the term loosely, was presented, of course, by the U.S. Government Prosecution. By doing this they are demonstrating yet another fundamental principal of criminal defense work that I have not discussed here: overplaying your hand and willfully attempting to mislead the jury. Actually, I sort of have discussed it in terms of “framing a guilty man.” For this is what they are doing.

Tsarnaev is guilty. Make no mistake. His own lawyer, Judy Clarke (whom I have known for years) said as much during her opening statement during the “Guilt Phase” of the trial. (Of course that should be called the “Innocence Phase” but never mind. I never said our system is actually fair, just that it is supposed to be.)

You see, in most jurisdictions including Washington, a capital case is divided into two halves. The first half is the Guilt (or Innocence) Phase, where the jury decides whether or not the Defendant committed the crime or crimes that could justify putting him or her to death (almost always him). The second phase, the “Penalty Phase,” is where that same jury decides whether to actually put him to death, having found him guilty during the Guilt Phase. A HUGE problem with this approach of course is that the jury must be “death qualified”, which means they have to agree that the death penalty is something they would be able to vote for. Any bleeding heart liberals, like me, would be excused at the very beginning of the trial and not allowed to serve on the jury during either phase. It does not take a brain surgeon to see how jurors like this might be less likely to listen critically to evidence during the guilt phase.

This, combined with the fact that most capital cases have horrible fact patterns, leads many defense attorneys, like Judy Clarke, to basically waive the arguments they may have during the first half of the trial in order to save their ammo for the inevitable guilt phase. It allows the lawyer to maintain credibility with the jury because it is hard to get them to listen to you during the penalty phase if you are making weak arguments during the guilt phase which the jury then summarily dismisses before convicting. For this reason most capital cases require two different attorneys: one to handle each half. This gives the jury a fresh lawyer to resent during the second half. It also allows the defense attorney to focus on facts during the first half in a way that will (hopefully) help them later lead the jury to the conclusion that putting the Defendant to death is not a good choice.

Judy Clarke, a master at these types of cases, has done a textbook job of taking this approach with great skill during this trial. This brings me to the point about the pundits. I found myself talking back to the TV when I saw CNN’s Ashley Banfield, surely the least qualified person on the planet to be portrayed as a “legal expert,” scratch her head in bafflement when Judy got up in opening during the guilt phase and immediately said that her client was unequivocally guilty of being one of the Boston Bombers. Poor Ashley was dumbfounded. Of course that is probably because she has zero legal training or actual experience. She is not even a lawyer, much less a criminal defense attorney. I have no idea why CNN puts her in this position. They must not know much about the law.

So, for Ashley’s benefit (since by now you all now why Judy did what she did) let me explain: by taking this approach, Ms. Clarke managed to avoid alienating the jury right out of the box while simultaneously allowing her to begin “planting the seeds” needed to persuade the jury not to kill her client. Simply put, she was saying, “Yeah, he did it. But he was just a stupid teenager who lived in the shadow of his horrible dangerous murderous older brother and only got involved in this because his brother manipulated him.” Something like that. She has continued on that theme brilliantly, finding ways to ask questions about forensics that support this theory: the fingerprints on the bombs were the older brother’s, the computer searches were done by him, not Dzhokhar, who was just a stupid kid rocking out on music and porn and Facebook on line, not bombs. Etc. Good work, Ms Clarke. The fact that she is probably right doesn’t hurt either.

Which brings me back to the snippet. This makes me mad. It is not the first time I have been mad at a US Attorney and it won’t be the last, I am sure. You see, they tend to be the bullies in the sandbox. The ones with all the toys. Twice the size as everyone else. And their “parents” own the sand box. They have all the advantages, all the power, all the money, and all the resources. Snap their fingers and 1000 FBI and Homeland Security agents are scurrying around like rats at their beck and call. And still they cannot resist the urge to cheat, to throw sand at the little kids. It is the huge elephant in the room in our federal criminal justice system, one that few normal citizens ever find out about… unless they wind up caught up in it personally, in which case they are all like deer in headlights. One of the most difficult things to do as a criminal defense attorney is to try to explain just how stacked the deck is in federal court to clients who naively believe in fairness, without sounding too cynical or defeatist in the process. It’s hard.

What was the snippet that makes me so mad here? A photograph. That’s right. Just a photo. Of Tsarnaev flipping his middle finger at a surveillance camera. Have a look.

Tzarnaev

They then argue that Tsarnaev is flipping the bird to the entire nation, expressing his hate and venom at our entire way of life. The only problem is that this is complete b.s. He may have hated and despised us all and wanted to kill small children just for fun – in other words he may even be a good candidate for the death penalty in many people’s minds. But this is not proof of that. This is proof of a bored annoyed teenager — acting like one.

You see the prosecutor took that photo from a video. Have a second look. You can see a caged young man, held for hours and hours alone in a holding cell, bored, annoyed, walking in circles. Walking up to the surveillance camera and using it as a mirror, straightening his hair (was that evidence of evil intent?—don’t tell my wife). For a split second he flashes a “V” (wonder what that proves?) then for another tiny split second, barely extends his middle finger. That is it. Is that reason to kill him?

As Glenn Greenwald points out in his excellent analysis of this “evidence” it is incredible that instead of focusing on an American hating murderer of small innocent children, willing to do anything to rain grief and misery down upon the country, the US Attorney cannot resist the urge to overplay their hand. Why would they possibly want to do this? Easy. Because they are worried that Judy Clarke’s approach was working. In other words, that the criminal defense attorney was doing a good job, just like the Constitution says they should, and they just can’t take it any more. They just have to paint that one brush stroke too many.

What really bothers me is that, apparently, the Government was allowed to argue all sorts of dark and dastardly inferences from this misleading photo, showing how horrible Tsarnaev is, but Ms. Clarke was not allowed to argue less nefarious inferences. Real fair. Reminds me of the time I was threatened with contempt of court for arguing that my client was innocent.

Do not misunderstand. I do not love Dzhokhar Tsarnaev. In fact I kind of hate him. I remember distinctly where I was when those bombs went off. I was ranting and raving about how horrible that was, how they needed to get those bastards and was delighted when Tsarnaev ran over his brother and killed him. Talk about Karma. But, as I have explained repeatedly, that does not and should not matter. All that matters is that he is tried fairly and given the best defense possible. It is wonderful that he has Judy Clarke at the helm, a lawyer who has made a career out of helping despised defendants with impossible cases, all in the name of fairness. It’s just too bad the US Attorneys don’t feel the same way.

nj-courtroom

People have been asking questions about the last few posts, and, of course, I can’t resist replying.

The first thing I heard were questions about how I represent people when I “know” they are guilty. The answer to that is both simple and complex, as usual. The simple answer is that I make a point of not knowing if they are guilty. The complex answer takes a bit more explanation. See below. A young lawyer said that clearly Slager was guilty so what was my point? Fair enough. However, I have been doing this longer than this lawyer has been alive, even if he is in his thirties. Age and experience give you a certain perspective, which helps me answer both questions.

A doctor friend of mine likes to say that what people need is a young doctor (because they know all the latest and greatest techniques) and an old lawyer (because they can use their wealth of experience to help them know what to do in any given situation). My friend is no youngster so I take what he says to heart. And I agree with him. The more you see as a criminal defense lawyer the more you know. I can’t speak for doctors.

I know, for example, that I don’t know if someone is guilty just based on a small snippet of evidence, however compelling it may be. Much more importantly, I know that my job is not to worry about whether someone is guilty. My job is to look very closely and critically at the evidence with a completely open mind and see if there is any reasonable possibility that the State’s theory is wrong. I don’t have to show that there is another probable alternative, only that there might be a reasonable possible alternative interpretation of the facts.  

The experience comes into play when you try to figure out how to do that, but it begins and ends with an open mind – something sorely lacking these days, given the tsunami of unsolicited opinions (like mine) that wash over our brains every day. Here’s how it works.

First, you do everything ethically possible to limit the information, or evidence, that is being used against your client. There are two main ways to do that. One is to refute its accuracy. The other is to suppress it because some constitutional right was violated. This latter approach is often referred to as a technicality.

I personally don’t think that Constitutional Protections are technicalities. I think they are the fundamental cornerstones of our way of life, which I why I do the best I can to make sure that they are not trampled on in court. Or outside court. As in when someone thinks they know whether someone is guilty beyond a reasonable doubt without ever seeing all of the evidence and without first trying to think of every possible reasonable alternative explanation.

In Slager’s case that would mean considering whether believing that a suspect was running away with a loaded weapon that they had just grabbed out of your hand was enough of a reason to shoot them as they ran away. Perhaps the answer is no. Perhaps it is yes if it was a handgun, but no if it was a Taser. Or perhaps it is yes in both scenarios.

But perhaps it is not up to me. Perhaps the Founders were right when they followed the ancient directives of the Magna Carta and wrote the right to a jury trial into the Constitution. Maybe it’ s just me that cares about this stuff. I sure hope not.

Now, back to how do you approach a case with seemingly overwhelming evidence. Years ago I ran the CLE Committee for the Washington Defender Association with my friend Roy Howson. We taught young public defenders how to do their impossible jobs. Well, we tried to at least. I came up with the idea that we had to show things as they really are. Public defenders have to take any case that winds up in their in boxes – they don’t really have a choice. That is why it is such great training for trial lawyers. In addition, public defense clients are not paying by the hour. They can make incredibly unreasonable demands, especially when they are caught red handed with a mountain of incriminating evidence.

They might be caught on tape, have ten eye witnesses to the crime, have fingerprints and DNA all over the crime scene, and have written out a signed detailed confession. And you may not like them. So what? If they want a jury trial you have to give them one, and since their lives are in your hands you better darn well give them a good one. The best, fairest most zealous defense you can find, or create, with the facts as they will come out at trial. No more, no less.

And on the issue of whether you like them, what kind of world would it be if whether or not you got a fair trial depended on whether or not your lawyer liked you? I know, for example, that one of the people I talked with about these posts likes Burning Man.  What if I thought Burning Man was for a bunch of stoned losers? (I don’t, but still. I might.) Would it be OK for me to just do a so-so job for this client because of how I feel? I hope everyone agrees that the answer is NO. The same goes for whether or not I think they are guilty.

The CLE (Continuing Legal Education Seminar) went off without a hitch. We had called it “Winning the Losers” and invited a bunch of experienced criminal defense lawyers to come talk. Speaker after speaker shared their great tips on ways to use the evidence you were stuck with to make the arguments you needed to win. But, something interesting happened as the day evolved. Every speaker had a different take on things. In fact, at one point a speaker criticized the perspective of a prior speaker to the point that I was afraid we might have a crime scene on our hands right then and there. So, there can be disagreement on how to approach defense work, even amongst those of us who have done it for years – as there should be.

In the example above, let’s say it’s a Murder One case. The tape might be from a misleading angle or be hard to see clearly, as they so often are. The witnesses might not know that two minutes before the murder the decedent had threatened my client’s life. The DNA and fingerprints might be there because they were friends and over at each other’s houses all the time. The confession might have been coerced or fabricated. Or, if it is really tough, you simply make sure that the Coroner’s Report containing the homicide finding is marked DEFENSE EXHIBIT ONE, by arriving early before court at the start of the trial and having the clerk mark your exhibit first. Then throughout the course of the trial it is referred to as “DEFENSE EXHIBIT ONE!” Never know. Worth a shot. And it represents the extreme outer edge of using the evidence you have to create doubt. It also led to a lot of disagreement among our panel of experts.

So, what about Officer Slager? I just don’t know. I’m even a bit confused by Hernandez, the football player with the Patriots, and he was just found guilty of murder. However, just because I am a devout Seahawks fan does that mean I would not have tried my best to win his case at trial? Of course not. Otherwise what good would I be? And more importantly, what good would our vaunted criminal justice system be, the apple of the world’s legal eyes? Not much.

 

It’s a giant flood of bad cops, raining down from the internet skies. A veritable avalanche of bad behavior, much of it caught on tape. Bad cops on tape.

By bad I don’t necessarily mean dishonest. Just bad. Take the case of the Tulsa, Oklahoma reserve deputy, Robert Batesan insurance agent who gave a lot of money to the elected Sheriff in Tulsa for his campaign. Voila. Like magic. Somehow at 73 years of age this guy is smack dab in the middle of a major sting-bust. A bust for selling illegal firearms no less. Really?? Could there possibly be a more inappropriate place to stick an old fat campaign contributor?

What gets me going on this one is the way this one first came in: I was driving in my car. On my way to court, ironically to represent a client charged on a major illegal possession of firearms case. You see, I know a thing or two about guns, like how dangerous they are. No, I didn’t learn that from my clients; I learned it from my Scoutmaster when I was ten, as he was teaching me how to safely handle a .22.

Bates

From that time on I knew one paramount thing about guns: that they were a blast (pun intended) to shoot. Sorry, that is sort of tongue in cheek. But not really. Because they really are a hoot to shoot. Just squeeeeeeze that trigger back, nice and sloooooow, with a fluid continuous motion, no jerky movements, zeroed in with everything you have, body and soul, on that target, and without even realizing it somehow a hole appears in the bulls’ eye. I admit it – I love shooting. And guns. Makes my wife crazy. Not to mention all my liberal friends. What can I say? You can take the boy out of Illinois but you can’t take the Illinois out of… well, you get the idea.

Which brings me to the point: guns are fun. Which is exactly why they are so dangerous. Lethal. Especially in the hands of someone who is not qualified or careful enough to use one. That guy had NO BUSINESS being in the middle of a situation like that. Armed. To the teeth. Even a Taser in his hands becomes a lethal weapon

There is a real issue about training in this case. As usual, I have no idea what really happened there. Although his lawyer is gleefully painting his poor client into a corner, putting him out there on national TV to talk endlessly about what he did or didn’t do. Man, I feel sorry for a lot of other lawyer’s clients. Who on earth does that? Let their clients talk at will about their pending cases? Not anyone who knows what they are doing, that’s for sure.

The issue with training is that there is a reason for it – a good reason. It’s called muscle memory. I hear about it all the time from my military clients. The idea is that you train. And train and train and train and train and train. Until doing whatever you are training to do becomes as automatic as typing train and train over and over again. Automatic. You don’t need to think, and that way you don’t make stupid mistakes. Unfortunately for some of my combat vet clients it can kick in at the wrong times, but that’s another story. One about PTSD. But in this case…

I’ve seen the mock ups. The Taser was miles away from the gun, the distance from your hip to your chest. Not likely that many people would mix those two up unless they were in the heat of battle and not trained to be there, so that mistakes could happen. Because when you are not properly trained, you don’t automatically go into autopilot once the stuff starts hitting the fan; no muscle memory.

I don’t know whether there was a training issue here. But if there was, heads should roll. Starting with the Sheriff. The buck should stop with him. Whether or not he had something to do with personally placing Bates in the middle of this super dangerous situation, he definitely had the responsibility for making sure that such situations were not open to random civilians so they could run around playing cop. That guy had no business being there.

I’m not sure whether or not those in power should be charged with a crime, but I’d sure take a close look at that. What is clear is that they should be held accountable, both in terms of their dereliction of duty, but also because a man is dead because they let some untrained rich guy be in a position to accidentally shoot him.

I also know that if I was suing them for incompetence for assigning Bates as a back up in the middle of this mess, the first place I would be looking for legal “back up” for my case would be in the emails and radio transmissions between the real cops, the guys decades younger, whose lives were also placed at risk by putting an old man in their midst. I mean, “I got your back” coming from a fat geriatric major campaign contributor does not exactly inspire confidence. I can only imagine the stuff flying around back at the cop shop about this nonsense. Unfit to print, no doubt.

What really bugs me about this one is something that has been ignored by the main-streamers. When this story first broke, as I was listening to the radio while driving in my car to handle the big gun case, they said that the “authorities” in Tulsa had already publicly stated that no charges would be filed because it was just an accident. Just like that. Almost instantly after this happened. Huh???

How does that work? In Washington you don’t just charge intentional premeditated murder or else it was just an accident. There are other choices. We have this thing called manslaughter, where you were so negligent or reckless that you caused someone’s death. If this is not manslaughter then what is? I tried to keep down my screaming at the radio as I heard this, but I was pissed. Yet another white cop shoots yet another black man, regardless of whether he is a dangerous felon or not (he was), and the “authorities” are immediately determining that the white guy is innocent. It is like the flip side of the instant trial by cop shootings we keep seeing, where the suspect, typically black, is gunned down on the spot, an instant trial, conviction and death sentence rolled into one.

Too bad they can’t learn to slow down a bit.  But really too bad they seem to be in such a hurry to clear the white cops and to shoot the black suspects. Don’t blame me. I just repeat what I see.

Sorry if I am going overboard on the case of Officer Slager’s shooting of Walter Scott. I just can’t help it. If law school exams had been this interesting I would have enjoyed them much more.  Real life is so much more interesting than anything you can make up. Even when it’s tragic.

What has me going this time is the behavior of Slager’s original Lawyer. I am very tempted to rant about what this lawyer did. Instead I will try to simply state what he did, according to news reports, and I will then point out what I would have done differently. He won’t be able to sue me that way.

First, the lawyer gave an interview. I try to avoid those unless they are clearly going to help my client. In the interview he stated that he withdrew immediately upon seeing the video of the shooting. I would never do that. In addition to making it a practice to avoid giving interviews unless they help my client in some way, I would never dream of discussing the fact that I withdrew from a case immediately upon seeing evidence that apparently makes my client look guilty. I would think that approach might not be especially helpful to my client. I would also not withdraw from a case just because I decided that suddenly there was compelling evidence against my client. That would be especially true if I had just finally bothered to look at the video of the shooting that was all over TV. I also would not care if representing a client might make me look bad just because I thought my client looked guilty on tape.

Atticus Finch

In fact, this would be incomprehensible to me. In virtually every criminal case there is going to be some pretty strong evidence against the accused by the time they are charged with a crime. That’s because at some point there has to be some form of independent review of the evidence that leads to the defendant being charged. The procedure varies from jurisdiction to jurisdiction.  However, you just don’t charge someone with murder based on a gut level feeling – at least you are not supposed to. It can happen. Just ask Amanda Knox. However, even when charging decisions are made responsibly that does not mean that the defendant is automatically guilty. Evidence can be wrong. That is what jury trials are for. Cases have to be proved beyond a reasonable doubt to a unanimous jury.

Regarding this incident, I already pointed out in a prior post that the video that apparently concerned this lawyer so much actually provided a possible defense. Which brings us to the second thing I would never do:  the lawyer began talking publicly about the case before he had seen the most critical evidence. Initially, he talked about a lack of evidence when he apparently had no idea what the evidence was. I would consider it to be a rookie mistake for me to talk about a case, even privately with the prosecutor, before reviewing as much evidence as possible. You box yourself in by doing that. The lawyer then flipped his prior position, proclaiming his client’s innocence, “immediately” (his words) after watching the video. He immediately withdrew and then talked to the media about that.

He apparently had not scrutinized that video as thoroughly as I did in just a few minutes – while I was simultaneously watching a basketball game (if it had been my client on that video the game would not have been on).  But even with seriously divided attention, I could see Mr. Scott apparently batting the taser out of Slager’s hand before running away. That does not make me a genius. It just makes me competent.

The third thing I would not have done is to go public about my reasons for withdrawing from a case in a way that arguably would violate my ethical code.

I would also worry that I would be making yet another rookie mistake.  Before describing how he withdrew immediately after watching the video, Slager’s lawyer said, “I really can’t comment”.  Then he made his comments, apparently not believing that he was hurting his client. I would be very worried that I was. I would be afraid that it made my client look bad. It would not take a brain surgeon to figure out why a lawyer withdrew from a case immediately after viewing evidence for the first time. I would worry that people might think that I concluded that my client was guilty the minute I watched the video and that I decided that I did not want to be associated with him. Why else withdraw?

The fourth thing I would worry about would be appearing that I was clearly putting my own personal best interests ahead of those of my client. That is not what we are supposed to do, at least in my opinion. Other lawyers disagree with me. I have had this argument many times. They say, with some validity, “Someone is going to jail at the end of the day and it should never be the lawyer.”  I disagree. I would gladly go to the clink (and be greeted as a hero no doubt) rather than take a position that hurt my client just to avoid negative consequences for myself. Just my personal code perhaps, but if we don’t put our clients first no matter what, what good are we? My wife hates it when I say stuff like this, but, again, I just can’t help it.

With that in mind you see why this bothers me so much. Criminal defense attorneys are all that stands between our clients and a prison cell. We are expected to sacrifice ourselves rather than throw our clients under the bus. We work long hours, have extremely stressful lives, and have to accept the responsibility of having our clients’ lives in our hands. It ain’t easy. Nor popular. I’ve lost count of the number of cases I have had where the entire community was against me, especially when I was a public defender in a small rural community on Whidbey Island. My clients were not always well liked, to put it mildly.

But never in a million years did I turn against one of my clients in order to avoid that backlash of public opinion. Quite the opposite in fact. I relished it. It might have something to do with seeing “To Kill a Mockingbird” as a kid. That Gregory Peck character was my hero. Ironically, I just began re-reading that book after seeing that Harper Lee has a new book out. I love reconnecting with Atticus all these years later. I see now that perhaps he influenced my career more than I knew. As the only lawyer in a small town willing to stand up for an innocent man falsely accused he was the model of what a hero criminal defense attorneys can be when they simply do their jobs, working hard to protect the rights of the accused. When they don’t they can easily become the villains in the story, even when their clients allegedly fill that role.

I LOVE the Witness organization. Founded by Peter Gabriel, their mission is to help people create valid and admissible videotapes of wrongdoing by authorities. How can that not be great? It is totally turning everything on its head. Watching the people watching us. In a way that works. Hopefully.

My initial reservation is the one I have expressed previously: When cops are misbehaving it might be better to just do what they say rather than it risk your life. You are just as dead right as you are dead wrong and so on.

Still, when it works, it is wonderful. And, as I noted in my last post, it can cut both ways. In the now infamous Officer Slager shooting of Mr. Scott in North Charleston, it may even provide a defense for Slager, depending on the other evidence that exists. Cameras are inherently neutral witnesses after all.

photographing_police

Some will bemoan the loss of privacy that results from even more folks out there taping everyone. To those naysayers I say “Get over it”. You are like sunbathers lying on a beach, looking up at a giant tsunami about to roll over them, complaining about the humidity. We are all gonna get wet in this tidal waive of information technology. Just ask Robert Durst  or Edward Snowden.

However, here is the great part. By turning the serpent back on itself we are empowering everyone to effect positive change in this world. When we see something bad happening now maybe we can do something about it. After trying for decades to create that kind of change by fighting for people’s constitutional rights every day of my life, it makes me smile to see good ol’ Number One from the Bill of Rights riding in to save the day. The First Amendment.

You see there is a reason that the First Amendment is first. It is the foundation for all other rights. For example, you may have a right to have a fair trial and due process under the Fifth and Sixth. But if your lawyer is not allowed to say anything in court what good would that do you? (Sometimes it feels that way when you are in the middle of a hotly contested trial, but that is a different post.)

The First Amendment means that we can think freely, say whatever we want to say (so long as it is not physically dangerous or criminal) and be able to preserve it all for the world to see later. Without some cop grabbing the phone out of your hands and basically stealing it. That is one thing that makes me furious.

It is NOT illegal to videotape someone in a public place. If you are actively interfering with lawful police procedures, for example, by standing in the way of their investigation, then it is some form of Obstruction of Justice.  You can get charged with that crime easily without a camera in your hand. I once saw a cop speed up to an intersection on University Avenue and scream at a random pedestrian, ordering him to tell him where the “fleeing suspect” went (no one had seen a fleeing suspect run by). When the poor kid just shrugged the idiot cop said, “Wait right there. I’m coming back to arrest you for obstruction.” The kid left.

This goes to the heart of the matter. Cops thinking they are omnipotent. They are not. I still say it is best to sort it out later in court than it is to risk getting shot. But maybe exercising our First Amendment rights is the best way to put an end to the tyranny. Then maybe sue the bastards. If they know they are being legally video taped, for example by people who took the Witness organization’s “Video as Evidence”  training classes, then maybe they will think twice before they bash someone’s head in. Or falsely arrest someone for Obstruction. I just wish I had had my iPhone with me back then……

Finally. A cop is being treated like any normal citizen. Well, almost. It took a real live caught-in-the-act video to make this happen. The common thread in the so-called “expert” analysis is that if Officer Slager had not been caught on tape he never would have been charged.

I’m a bit frustrated that my last post got lost in the tech wilderness. I wrote it several days before this horrible incident happened in North Charleston. If it had posted before this shooting it would have looked like a prediction. But, then again, who wants to predict someone being killed? However, I do have a prediction about this case that will probably surprise you.

As I said in my last blog, for those of us who have been talking to the “collective wall” that is our criminal justice system for years, trying to persuade everyone that there is such a thing as dirty cops, it is a relief to see so much misconduct being aired in public for all to see, thanks largely to cell phones. I have been trying to explain to people for decades that, although there are plenty of good and honest police officers out there, there are also a fair share of bad, dishonest, lying, cheating, power tripping, dangerous, bad cops out there too. With guns and badges. And the power to lock people up, beat them silly for no good reason, take away their liberty, and, as we have seen recently, even take away their lives.

police-officer-fatal-shooting

Therein lies the problem. They feel immune. Why? Because for years and years they have been getting away with things. Our criminal justice system has failed. Whatever they say, whatever they claim, whatever evidence they fabricate, prosecutors and judges have been turning a blind eye. I mean justice is supposed to be blind, but not that way. Justice is supposed to treat everyone equally.

But law enforcement are treated differently, more deferentially, with more bias in their favor, so they think they can do whatever they want. Snatch cell phones out of people’s hands, sit on people as they scream “I can’t breathe”, and shoot them just for running away. Which brings me to the most important point, which will no doubt surprise everyone. That is because I prefer to actually look at evidence and think about how it might apply to the law, rather than jump to conclusions that may be wrong, unlike the parade of fools romping around on CNN et al the past few days masquerading as “experts.” It’s too bad. Because this case has more angles than a Stanford Law School Final Exam, but the experts all seem to be missing them.

One moron on CNN last night (supposedly a criminal defense lawyer) said that the defense would obviously be that this was a crime of passion. I feel sorry for his clients. Hope they like prison. I have a different take, not that I agree people should weigh in at this early stage. But I feel as if someone has to think clearly here, and since that is what I try to do on every case I can’t resist. I am willing to throw caution to the winds this time because I think someone has to.

I would like to make a prediction. I predict that the defense in this case will hinge on two issues: 1. Is it legal to shoot someone just for running away? 2. Is a taser a lethal weapon? If the answer to #1 is: “Yes, if the person would be able to inflict serious harm to others if not stopped” and the answer to #2 is “Yes, because tasers can kill people”, then the prosecution may have a problem. That would be because Officer Slader might not be guilty. I can almost hear people gulping. Let me explain.

The fleeing felon rule used to be that you could shoot someone who had committed a felony and was clearly fleeing, without needing to show anything more than that. Then, in 1985, Justice Byron White, writing for the U.S. Supreme Court in Tennessee v. Garner said:

“A police officer may not seize an unarmed, non-dangerous suspect by shooting him dead… however….Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.”

That’s the law, folks. But why the second question, about tasers? They are potentially lethal weapons even though most people don’t know that. This brings us back to the evidence.

Unlike the “experts” on CNN, I know how to use fancy schmancy high tech tools. Like the “pause button”. And “slow motion”. If you do too, then you will clearly be able to see that right before Mr. Scott runs away from Officer Slager, Scott bats something out of Slager’s hand. You can then see a dark object fly out behind Slager and hit the ground. Plain as day. (By the way, slapping a taser out of the hand of a police officer who is acting legally – which arguably Slager was initially – is a felony.)

When Scott slapped Slager’s hand, the taser apparently flew out behind Slager where he could not immediately see it; Slager had the taser one second and the next it was gone and Scott was fleeing. Therefore, Slager can reasonably say that he believed that Scott had taken his taser and was running away with it. Then the question becomes does that justify shooting him? Ask yourself this: What if he had batted away a loaded service revolver and Slager believed (mistakenly, but reasonably) that he was running away with an actual loaded gun? What then? Would shooting him have been justified then?

Personally, I have no idea. That is because I have not seen all of the evidence, have not interviewed a single witness, much less Officer Slager, and am basing my opinion only on one short snippet of video. Apparently at least several minutes elapsed between the two videos that are being broadcast. That is a long time in “police arresting someone minutes”. An eternity in fact. Anything could have happened. But just looking at what is already available I can see an issue with respect to the fleeing felon aspect of this.

I just don’t know why none of the “experts” can. They must be biased against cops.

It’s official. Cell phones make police misbehave. Incredible how that works. Just start shooting video and there they are, beating people to death, sitting on their chests until they suffocate, even gunning them down.

It’s like bad magic.

Just kidding. Except I’m really not. Because there is nothing funny about any of this. The sad truth is that police have been getting away with this behavior forever, but until the advent of cell phones, making virtually everyone a potential on the scene TV reporter, nobody believed it.

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If you simply Google “Police Brutality Caught on Tape”  you will find endless examples of cops misbehaving. It’s incredible. At least for most people. It is not slightly incredible to me. For over thirty years, client after client after client has sat across from me, detailing how they were manhandled while being arrested. Don’t get me wrong; some of them probably deserved it. I mean when you are screaming threats at an armed officer you gotta expect it might go a bit sideways eventually. But the constantly recurring themes were more along the lines of “There I was, in handcuffs, totally complying with every order, but as they put me in the patrol car they grabbed my head and bounced it off the top of the door.” If I had a dime for every time I heard that I’d be retired by now.

The first real example that went “viral”, before anyone used that term, was Rodney King. 

That was the first time most Americans actually saw first hand what can happen during an arrest. But, even then, especially then in fact, it was happening every day. I know. I was deep in the trenches working as a public defender back then, listening to my clients tell me stories every day about being beaten, having their homes ransacked, being pulled over because of the color of their skin.

I actually feel guilty about that. I did not do enough to try to stop it. Believe me, I tried. I would vehemently argue to prosecutors, judges and juries whenever I could that something had happened that violated proper legal procedures and try to get my clients some relief. But, guess what? The prosecutors rolled their eyes and snorted, with a sort of “Tell it to the Marines” attitude. Judges ruled against us in suppression hearings. Jurors convicted, occasionally taking me to task out in the hallway after trial for daring to criticize our saviors in blue uniforms. Of course these same jurors swore up and down during jury selection that they would never simply take the word of a cop because they were a cop. Nooooo. They would apply the same standard to everyone, zealously presuming my client innocent and forcing the state to prove their cases beyond a reasonable doubt. Yeah, right. In fact they did what my mom used to say she would do if ever on a jury: Tell that defense attorney just how fair and impartial they were going to be and then head back in the jury room and convict the guy. At least Mom was honest.

And that is the thing.  Police brutality and misbehavior does not start and end out there on the streets. No. It starts the day they enter the academy and persists right through their gloating after testifying in court, knowing that they are leaving stuff out or intentionally misleading jurors to get a conviction. It is too bad we can’t video tape that kind of thing and show it to everyone. Maybe then people would believe me.

I’m not imagining things. No more than I was imagining that cops beat people up for no reason before it was all over YouTube for everyone to see. I have endless examples that I witnessed first hand over the years. I once had a detective sitting across from me when I was a prosecutor as we prepared for a suppression hearing. The defense was arguing that my cop had lied in his report about whether he advised the defendant of his rights. I asked the detective what actually happened. He shrugged, smiled and said, “Don’t you worry about what happened. Just tell me what you want me to say.” I dismissed the case, which did not go over well.

As a PD I once persuaded a judge to toss a case out because of an illegal search, but not before I had to ream the lead detective on the witness stand for lying in his report, which was so obvious that even the judge was forced to rule in my favor. On the way out of court the detective pulled me aside, almost laughing, and said “Well, you caught us this time but next time we will be ready for you.” Next time? Excuse me?

There are cases where it appears detectives and prosecutors got together to collude to hide exculpatory evidence. It is called a Brady violation. Brady stands for the proposition that if the government knows about evidence that might help the defense, called exculpatory evidence, then they MUST give it to the defense.  No if’s, and’s, or’s or but’s. No exceptions. But when a client has the wherewithal to file request after request for documents from prison, after being convicted without that Brady material being disclosed, he then uncovers the helpful evidence. By then it might be too late. Every one of these things actually happened.

Which brings me to my point.  It is really a shame that it took millions of people with miniature video cameras in their pockets before people actually began believing that cops can get out of line.  But it is about much more than beating people up for no good reason. It is about corruption, perjury, and obtaining convictions at all costs, the rule of law be damned. It makes me angry. And sad.  Sad that it will continue until people get wise to the way things really work out there. Until they learn that you have to look at every case critically with a fair and open mind.  Including the way you look at the testimony of both sides. Not just the defense.

One last point. There are tons of honest and true prosecutors and law enforcement officers. The vast majority in fact. However, they should be the first to stand up and condemn the types of things I am describing. If they are not part of the solution they become part of the problem, and that becomes a problem for every American, law abiding innocent people and guilty criminals alike. It is what this country was founded on and what makes us great. A fair and impartial criminal justice system where everyone is expected to play by the rules.

by Craig Platt

I am sure you can guess what this will be about. Robert Durst. Good grief. Seems that you can’t even mutter to yourself these days without incrementing yourself. Of course the fact that Durst was stupid enough (or egotistical enough) to agree to have HBO follow him around with a camera asking about all the people he killed didn’t help. You may think you are different as you are not in the public eye. But, you’d be wrong. Dead wrong.

The fact is that privacy is a thing of the past. Just ask another person who openly “outed” himself and actually committed several federal crimes live on camera: Edward Snowden. But Snowden is no dummy. And contrary to what many may think (including me before I saw him in Citizen Four) he is not just an ego freak either. Watching him in action in that excellent documentary I learned a lot. I went from thinking he was largely in it for the attention to realizing that he is actually a modern day hero. A Robinhood, tattling on the powerful to save the unsuspecting masses, who are totally unaware of how much what they do and say on line can be (and is) monitored by strangers.

Which brings me to all of the potential future defendants out there. As I used to like to say to my kids when they were young, drawing upon an old classic movie line they never knew, “You know how to remain silent don’t you? Just put your lips together and…..” Nothing. The only way to remain silent these days is to keep your thoughts to yourself. Emails, texts, Facebook and Instagram, even blog posts like this, live FOREVER. As we criminal lawyer types like to say, “E is for evidence.” So think twice, even three times, before hitting send on an email – or be prepared to answer for anything that you put out there.

The same goes for surveillance. Video is everywhere these days. In London, they say every square inch is covered by some form of closed circuit TV.

Ask Snowden. Even if he was not being taped as he arguably committed several federal offenses live on camera while filming Citizen Four, they eventually would have found him. Even with his uber encrypted computer skills it was just a matter of time. Too bad. He is a lone voice in the wilderness, trying to alert us all to government overreaching. No matter what your politics are, if you believe in privacy and freedom of expression, you have to be concerned.

You see, there is this little thing called the Fourth Amendment to the Constitution of the United States of America. It goes something like this:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Government is not supposed to be meddling in your personal affairs without a good reason that has been reviewed by a judge. As in, ‘neutral and detached magistrate’, not some hack pretending to scrutinize overbroad requests and then rubberstamping whatever “The Man” asks for. It is just not supposed to work that way.

But when the Government gets a helping hand from the people that they are seeking to get information from, everything turns upside down. Admissibility is not likely a problem in these cases. Which brings us back to Durst.

I watched the HBO Show, The Jinx (during which Durst supposedly confessed) with great interest. I had seen two fairly intelligent lawyers, Jeffrey Toobin and Mark O’Mara opining on CNN about this alleged “confession”.

I have to say that I am disappointed in both of them. Granted, the questions on the table had to do with the admissibility of the statements. Since statements are normally deemed inadmissible only when the police forget to “Mirandize” suspects (i.e. forget to warn them about their right to remain silent, etc.) it was a bit of a no brainer that statements made to news reporters were not being obtained via police misconduct (although there could still be some privacy protections that might apply, that is not the focus here).

But, the elephant in the room wasn’t admissibility. It was whether these statements are a confession at all! Did they actually listen to what Durst was saying? I kinda doubt it. That’s because it sounded more like some crazy old guy mumbling and talking to himself than someone confessing to murder. If they can’t see that they need to go back to law school. It would be pretty easy to see these random comments as Durst simply trying to figure out what the reporters were asking him, by repeating what he thought they were getting at.

See for yourself. Here is what he actually said:

“There it is. You’re caught. You’re right of course. But you can’t imagine. Arrest him. I don’t know what’s in the house. Oh, I want this. What a disaster. He was right. I was wrong. And the burping. I’m having difficulty with the question. What the hell did I do? Killed them all, of course…….”

These statements are punctuated by loud burping nosies and a toilet flushing. The tone of his voice is odd. After the last statement the room dramatically goes dark, with no recording of what he said next. For all we know, he said, “What a bunch of malarkey!” Selective editing can be deceptive and I simply don’t trust TV people, based on my own experience working with some of them (e.g. Dateline).

I once represented an elderly woman accused of First Degree Murder. It was a very complicated case. The prosecutor thought it was a slam dunk because he had two very detailed taped statements of my client confessing to murder, both of which the jury heard. However, we looked at the forensics and were able to show that she was falsely confessing in order to protect her grandson, whom she mistakenly believed had committed the murder (our defense was that it was an accident, and that no one had committed murder).

In Closing Argument I played the confession tape over and over for the jury, explaining to them how her tone of voice sounded completely fake, the details too detailed and not really consistent with the forensic evidence, and explained why she would lie to save an innocent grandson she mistakenly thought was guilty of murder. It worked. Not Guilty.

The same applies here. If you really listen to what Durst said and how he said it it does not sound like a confession at all. But, unfortunately it makes for such great TV viewing that this obvious explanation gets completely lost in the mix.

This is why you need to simply not talk about pending criminal cases, especially if you might be a suspect. The media and law enforcement will immediately seize the opportunity to use whatever you say to prove you guilty… even when you aren’t.

So, take my advice. Don’t talk about crimes under investigation, even to yourself, if there is any possibility someone will hear or read your words. Remain silent, and ask for a lawyer the minute anyone questions you about any potential crime, big or small. You don’t want to wind up like Durst.

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by Brent Thompson
As mentioned previous posts, any warrantless search or seizure is per se unlawful absent the applicability of a jealously guarded exception to the warrant requirement.

One exception is consent. In State v. Ferrier, 136 Wn.2d 103 (1998), the Washington Supreme Court held that, before entering a citizen’s home, Article I, section 7 of the Washington state constitution requires that police officers:

  1. Ask the citizen for consent
  2. Inform the citizen consent can be revoked at any time
  3. Notify the citizen can limit the scope of the consent (i.e. limit the extent of the officer’s entry).

These warnings are known commonly as “Ferrier Warnings.” Such warnings must be given by officers in Washington state in order for an entry and subsequent search to be considered lawful. Evidence must be suppressed pursuant to the exclusionary rule and “fruit of the poisonous tree” doctrine if this rule is violated.

On March 3, 2015, in State v. Budd, Division Three of the Washington State Court of Appeals issued an opinion that revisited Ferrier. The Court of Appeals directly addressed the issue of whether all Ferrier warnings must be given before entering the home or whether the warnings may be given after the officer enters the home but before searching it. The Court of Appeals also addressed the issue of whether each Ferrier warning must be given before entering the home.

In Budd, a “knock and talk” was performed at a resident’s home. A “knock and talk” is a police procedure where officers approach a private residence, knock on the door, and asks to come in and “take a look around.” This is done when the officers suspect criminal activity, but do not have probable cause for a warrant. Oftentimes in this context the resident does not understand they have a right to refuse entry. Other times residents may feel pressured to permit the officers to enter–the resident may feel a need to be policed or may feel that refusing entry may indicate guilty knowledge or that something is being hidden.

Three officers went to the resident’s door in Budd, but the resident was not home at first. His girlfriend answered the door and explained the he was at work. 15 minutes later the resident arrived. The Detective identified herself and other officers and told them they received a tip that indicated illegal items were located inside his home and they were concerned about the safety of another inside. The Detective asked for consent to enter the home and search a computer, and the resident asked the detective if she had a warrant.

The detective replied that she would apply for a warrant if he did not consent. The resident said that he did not want his computer viewed in front of his girlfriend, then allowed the officers to enter his home for the purpose of searching his computer. The officers reviewed a written consent form containing Ferrier warnings after entering the home but before searching the resident’s computer. The resident then signed the document after acknowledging he understood the warnings and was giving consent. The officers seized the resident’s computer and found some bad stuff on it that led to a felony conviction.

The Court of Appeals held that law enforcement officers must deliver EACH Ferrier Warning BEFORE entering a residence. The court concluded that the Detective could not merely tell the resident that he had a right to refuse the search before entering.

It also concluded that the detective could not wait to inform the resident of other Ferrier warnings after entering the home. All Ferrier warnings must be given before police enter the home. Because the officers failed to do this in Budd, the Court sent the case back to the trial court with directions to dismiss the charges against resident. The court looked to the plain directive given by the Supreme Court of Washington in Ferrier:

[W]hen police officers conduct a knock and talk for the purpose of obtaining consent to search a home, and thereby avoid the necessity of obtaining a warrant, they must, prior to entering the home, inform the person from whom consent is sought that he or she may lawfully refuse to consent to the search and that they can revoke, at any time, the consent they give, and can limit the scope of the consent to certain areas of the home. The failure to provide these warnings, prior to entering the home, vitiates any consent given thereafter.

The court also reasoned that the law draws a firm line at the entrance to the home and the home is a highly private place that receives heightened constitutional protection. It also recognized that any “knock and talk” is inherently coercive to some degree. The court also even pointed out that RCW 10.79.040 creates the misdemeanor of a law enforcement officer entering and searching a private dwelling without the authority of a search warrant.

However, the court did explain that Ferrier warnings are not required in all circumstances such as circumstances involving an emergency. The Ferrier warning requirement generally applies in the context of police use of a “knock and talk.”

In short, citizens have a right to refuse consent when officers request entry into their home. In Washington, officers must inform the resident of each and every Ferrier warning prior to entry in order for the entry to be deemed lawful. If this is not done, all evidence derived thereafter (“poisonous fruits”) must be suppressed.

by Craig Platt HolmesInsanityPlea.jpg

We all know the way it works. Some nut job goes out and whacks some innocent person for no apparent reason. Sure enough. Out come the legal guns to blast out defenses like Not Guilty by Reason of Insanity or Diminished Capacity. Next thing you know they walk out the door free people.

Not really. Not in real life.

In reality mental illness is a very difficult concept to explain to jurors. Most people have trouble understanding how it is that crazy people can get away with murder. Literally. But, like everything else in criminal law, it’s complicated.

Take the case of Lacy Spears, a young mother accused of killing her son by feeding him toxic amounts of salt (of all things) through a feeding tube. She allegedly did this while he was hospitalized for a chronic illness that it seems Ms. Spears induced. The details about exactly what she did are unclear.

What is clear is that there is something wrong with Ms. Spears. I say that not only because it looks like she forced salt down her baby’s throat to kill him and then calmly stood by and watched him suffer; I also say that because she tirelessly publicized his plight on social media. She blogged and tweeted away even as he went through ongoing pain and suffering and intense illness to the point of requiring hospitalization. I mean who does that? Maybe people with mental health issues.

Therein lies the question: should someone who is somehow not able to control their actions be able to escape punishment? Should that be an excuse? What about a vet from Afghanistan who saw his best three friends blown into a pink mist in front of his eyes, then comes home and has a flashback and suddenly finds himself pinning down his brother with a knife in his hand? Not knowing where he is or how he got there? What about someone who stands on street corners arguing loudly with invisible people using nonsensical words who walks into Safeway and forgets to pay for his Orange Crush?

You see, it gets complicated. But a mother who salts her beautiful baby boy to death? Something must be wrong with her. The question is what is it?

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In this case it is called Munchausen by Proxy. It is a disease of the mind that makes otherwise seemingly loving, caring people secretly harm those they are supposed to be caring for. Typically it is seen as a bizarre way to get attention. In Ms. Spears’ case she was saturating social media with tales of her sick child, basking in the supportive feedback that generated… while secretly making her child sick in order to keep the attention coming.

That has to be crazy.

Closing arguments begin today so we should know by later today or tomorrow what the jury thinks. Unfortunately it seems the defense did not call any expert witnesses to support a theory of insanity so the jury may have no reasonable alternative other than to convict.

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What about the American Sniper case?

This is a classic case where the Defendant, Eddie Ray Routh, was clearly mentally ill, with extensive prior hospitalizations for schizophrenia and related mental disorders. In fact this crime apparently happened because the victims, Chris Kyle and Chad Littlefield, were taking Routh out to a shooting range in a tragic attempt to help him with his PTSD. Littlefield went along because he was concerned for his friend, Kyle, because Routh was acting so crazy. The two were even texting about how crazy Routh was in the vehicle as they drove to the range. Their silence as they drove and texted to each other about Routh so enraged him that he killed them both in cold blood.

However, the jury found that he did not meet the legal definition required in order to be found not guilty by reason of insanity. You see, it is not an easy thing to prove. At trial the Texas court applied the M’Naughten rule, which requires the jury to find that the defendant was not able to tell “right from wrong”. In this case insanity would have been due to PTSD. Both Routh and Kyle were combat veterans and Routh had ongoing issues with PTSD.

There has been much talk regarding the high standard applied in Texas, known as the M’Naughten rule. The same standard is used in Washington. The defense is described by the pattern jury instructions used in our state (WPIC 20.01):

“Insanity existing at the time of the commission of the act charged is a defense. For a defendant to be found not guilty by reason of insanity you must find that, as a result of mental disease or defect, the defendant’s mind was affected to such an extent that the defendant was unable to perceive the nature and quality of the acts with which the defendant is charged or was unable to tell right from wrong with reference to the particular acts with which the defendant is charged.”

As a nationally known psychologist once described it to me in a murder case we were working on together, “You can be as crazy as a loon, standing on your desk screaming ‘I am the Queen of Sheba!’, but if you understand that what you are doing is wrong you are not legally insane.”

With the American Sniper defendant, the police carefully framed their interview questions to include several leading questions to get him to say that he knew it was wrong to kill Kyle and Littlefield. Of course, in that context Routh may have felt he was making up for what he did, essentially apologizing to the police. In fact what he was doing was setting himself up to be held accountable since by admitting he knew it was wrong he put himself outside the definition of legally insane under M’Naughten.

Reasonable people can disagree about the insanity defense. What we can agree on is that it rarely works. In reality the reasonable jurors out there simply don’t want to let guilty people get away with murder, no matter how crazy they are. They would consider it unreasonable to let them go free. Which brings us back to why it is so difficult to win a case based on the “not guilty by reason of insanity” defense.