Archive for the ‘ineffective assistance of counsel’ Category

Written by Masoninblue and reblogged from frederickleatherman.wordpress.com. Do yourself a favor. Don’t read Frog Gravy all at once. In fact, don’t read Frog Gravy at all because it will make you sick.

As I said yesterday in Part 1,

One of the biggest problems we’ve seen in crime labs is people testifying as experts regarding matters beyond their expertise.

This happened in Crane-Station’s case when a lab tech with a bachelor’s degree from Transylvania University in Lexington, KY, who routinely analyzes human blood samples for controlled substances in the Central Lab of the Kentucky State Crime Laboratory using gas chromatography and mass spectrometry (GCMC), testified as an expert toxicologist regarding the probable effects of Clonazepam on her. He was permitted to do this without objection from her lawyer, even though,

(1) he had not detected Clonazepam, or any other drugs in her blood when he analyzed her sample;

(2) he had no formal training in drug toxicology;

(3) he never had published a peer reviewed article in a professional journal on any subject;

(4) he did not know what constituted a toxic level of Clonazepam in human blood, as opposed to a safe level;

(5) the prosecutor told him that she had admitted taking her prescribed medication when she was arrested, which included Clonazepam, but he had no information regarding what dosage she had taken and when she had taken it.

Nevertheless, he was permitted to express his opinion as an ‘expert’ that she was probably under the influence of and impaired by Clonazepam when the deputy stopped her.

This was a travesty of speculative nonsense and never should have happened.

Now, how is it possible that she could have been under the influence of and impaired by Clonazepam, if he did not detect it in her blood sample?

Well, he testified that it is difficult to detect using gas chromatography and he might have been able to detect it using liquid chromatography, but the Kentucky State Crime Lab cannot afford the equipment to perform that analysis.

Could some other lab have performed the analysis?

Well, as a matter of fact, NMS Labs in Philadelphia can do it and the Kentucky State Crime Laboratory has a contract with NMS to do the test.

Did that happen in Crane’s case?

According to the Director of the Kentucky State Crime Laboratory, the lab sent her blood sample to NMS.

But Ryan Johnson claims that he did not send her blood sample to another lab and the prosecution denies that another lab tested her sample, or that there is an exculpatory lab result from NMS.

However, there is a 2-month gap between the date that Ryan Johnson completed his analysis and the date that it was approved by his supervisor.

Sure looks like he completed his analysis and sent her sample to NMS. They tested it and sent it back reporting an exculpatory result confirming his analysis without generating a written report, so his supervisor reviewed and signed off on his exculpatory result. Then the prosecution turned over his report without mentioning the NMS report.

NMS has referred all inquiries to the prosecutor and, as I said, the prosecutor claims there is no NMS Report or analysis.

This is the kind of bullshit that we are dealing with.

Cross posted from my law blog.

I will be publishing the full text Commonwealth brief online at this site, later today or tomorrow. In the meantime, Mason is putting the finishing touches on his nauseating article titled Forensic Fraud Part 2, and I hope you will enjoy lowering your day a bit, with some Cyanide and Happiness, The Man Who Could Sit Anywhere, with its usual dry, graphic and offensive approach. These guys are too funny to ignore.

Author’s note: I apologize for taking a few days away from Frog Gravy. Initially, I promised to publish full-text transcripts of hearings wherein, Deputy Eddie McGuire testified under oath, in court, to get the initial indictment as well as the ultimate conviction in my case. This will take some time, and I will present the transcripts in sections.

I will place all full-text transcripts at the site froggravy.wordpress.com.

For example, at that site, you can find the full text opening brief, the full text reply brief, the full text motion for discretionary review, and the
full text to be published opinion affirming.

These online publications are transcribed from official court reporter documents, or, as with the briefs and the opinion, they are directly cut and pasted from original documents. As far as I know, I am the only person who has ever insisted on obtaining such transcripts in McCracken County.

All transcripts are a matter of public record and are available in the public domain.

As I write this, from wiki,

Incarceration in the United States is one of the main forms of punishment and/or rehabilitation for the commission of felony and other offenses. The United States has the highest documented incarceration rate in the world. At year-end 2009 it was 743 adults incarcerated per 100,000 population.[4][5][6][7][8]
According to the U.S. Bureau of Justice Statistics (BJS) 2,292,133 adults were incarcerated in U.S. federal and state prisons, and county jails at year-end 2009 — about 1% of adults in the U.S. resident population.[4][5][9][10] Additionally, 4,933,667 adults at year-end 2009 were on probation or on parole.[4] In total, 7,225,800 adults were under correctional supervision (probation, parole, jail, or prison) in 2009 — about 3.1% of adults in the U.S. resident population.[3][4][11] In addition, there were 86,927 juveniles in juvenile detention in 2007.[12][13]

Before I was locked up, I scarcely knew of anyone who had been arrested, much less anyone who had done time. Now, it is safe to say that nearly everyone is touched in some way, by ‘the system.’ Of particular alarm, to me anyway, is the numbers of women, elderly women, children and pregnant women who now spend a portion of their lives in the abnormal and secretive society of our nation’s jails and prisons.

As I have said before, Frog Gravy is not meant to be about me. It is about a criminal justice system gone mad. The women in the stories are from backgrounds that represent a microcosm of society at large, with the exception that, few have obtained college degrees and women of color are over represented. This later statement is changing also. I am white, and I found that white women are more common residents in prisons and jails than in recent years.

Every jail or prison sentence begins with an indictment. Every indictment is handed forth by a Grand Jury. My Grand Jury was the Paducah Kentucky McCracken County Grand Jury. Deputy Eddie McGuire was the only witness. The only truthful statement he uttered in his under-oath testimony at the Grand Jury was that he pulled me over.

Just so that there is no question about me making this stuff up, I will be putting word-for-word all of his under-oath testimony from three hearings on the internet.

I will present the hearings in parts. My indictment took just six minutes.

In those six minutes, McGuire lied about an exculpatory blood test result, and he also lied about a test result on the so-called “gonna be crack cocaine.” There was no field test and there was no confirmatory laboratory test about cocaine or any other illegal drug.

I will post the Grand Jury transcript first. If you are following the legal case, please have a look later today.

Between posting transcripts, I will be posting Frog Gravy posts, and Masoninblue will be posting on various other issues, such as why a lab tech with a bachelor’s degree and no clinical experience whatsoever, was allowed, without objection from Chris McNeill, to testify about the clinical effects of a medicaton that he had never handled, tested for, or published about, to contribute to conviction in my case. In fact, Ryan Johnson, the lab-tech-cum-expert, had published nothing about any drug (or anything else, for that matter) in any peer-reviewed journal, and yet, he was deemed an ‘expert’ in a McCracken County court of law.

Mason is itching to write about this so-called ‘expert’ that they used without objection from my exceedingly useless attorney, Chris McNeill, who should have been on his feet rather than firmly attached to his chair. What happened is so unbelievable, that I cannot resist delivering a heads-up: the man was an approved and acceptable expert in the courtroom during my trial because, I kid you not, he read from a product insert. This is the truth, and it happened in McCracken County, Kentucky. There is no way you can make this stuff up. That the man acted outside of his scope of practice would be a massive understatement.

Also, why, and in what world, does a so-called ‘higher’ Court of Appeals neglect not only the briefs but also the entire record in a case, and then designate it “to be published,” essentially doing away with DNA and other exculpatory blood testing?

How often, with more than two million people locked up and another four-plus million on paper, does such egregious miscarriage of justice occur in this country? Also, why on earth is this country locking up little old ladies while the dangerous violent criminals run the streets? There are some of the questions we need to be discussing.

For review:

http://frederickleatherman.wordpress.com/2011/12/22/the-art-of-cross-examination-part-3-the-killer-cross-that-never-happened/

http://frederickleatherman.wordpress.com/2011/12/23/the-art-of-cross-examination-part-4-the-killer-cross-that-never-happened/


http://frederickleatherman.wordpress.com/2011/12/24/the-art-of-cross-examination-part-5-the-killer-cross-that-never-happened/

http://frederickleatherman.wordpress.com/2011/12/25/the-art-of-cross-examination-part-6-the-killer-cross-that-never-happened/

http://frederickleatherman.wordpress.com/2011/12/26/the-art-of-cross-examination-part-7-the-killer-cross-that-never-happened/

Frog Gravy is a nonfiction incarceration account.

McCracken County Jail, May, 2008

My lawyer, who is about as useless as a steering wheel on a mule, calls me out to have a conversation. I have lost confidence in my lawyer, and I do not trust him. But, I am stuck with him and whatever surprises he brings.

As I walk down the hallway, I try to get a glimpse of Harry, who, as usual, is shouting and begging for someone to help him, from his isolation cell. I cannot see him. I wonder if Harry has a real name.

In the conference area, I seat myself at a small table, across from my lawyer. He says, “Did you hear anything about your sentence? How it is four years and not eight?

“Yeah,” I Say. “As a matter of fact, my family on the west coast told me, like two weeks ago. This judge will claim clerical error and give me eight. He did this on purpose, just to be mean, so I will make parole and he can take it away. This is not complicated. There may be a problem. Fred found a case that says he can’t take it back. Seems he missed a deadline.”

I watch the lawyer pick up a law book, that I have already looked through in the jail ‘law library,’ and thumb through it. He locates a statute that I have already read, and begins to read the statute to me. I let him read it, and I listen as though I have never heard it before.

I say, “I have told Fred to go ahead and file my notice of appeal. I will file it Pro Se.”

“The appeal has been filed.”

“No it hasn’t. Clymer wants some financial statement. For the umpteenth time. He’s trying to block my appeal.”

“Maybe so.”

“By now, you oughta know so. By the way, those comments he made about me in open court? The ones about me being naked on an elephant riding through the middle of town at noon? And the comments at sentencing, where he acted like an auctioneer and said to the jury, Thirty, thirty, do I hear Sixty? Those are comments for the judicial conduct commission. Those comments were unnecessary, offensive and inappropriate. Even other inmates were offended. Do you have any idea what it takes to offend another inmate in here?”

“They have very specific rules. They’ll ignore it.”

“How about filing documents with made up facts. Will they ignore that?”

“They have very specific rules.”

“He can’t make sexually degrading comments in open court. Come on.”

“It won’t go anywhere.”

“Not if I don’t file it.”

The conversation shifts. The lawyer says, “You can’t practice nursing anymore.”

“I have spoken to the Board of Nursing,” I say. “Many times. Drug charges do not prevent someone from entering a monitored diversion program and continuing to practice. Many health professionals, in fact, piece their profession back together this way.”

“That’s not what they all think.”

Ah, the ‘they, ‘ I think to myself. I say, “Okay. I’ll bite. If they want their phony confession I will consider it. But there is a problem. I have no idea what to confess to. They have so many versions of their story that I am not sure which version to pick. Maybe you can help me pick, Chris. Go ahead. Pick a story for me. There’s lots to choose from. Or, how about this? Make up a new one.”

“I don’t know.”

“Find out. If they could keep their stories straight, it would make my phony confession task a lot easier.”

“I know, I know.”

“No. You don’t. Do not ever again tell me that you know what it’s like. You agreed to taking away my defense, during a meeting in the hour before trial- a meeting you never told me about. You botched the trial. We are now trying to figure out a way to undo the damage you did. We are trying to figure out if you even preserved anything for the appeal.”

“Don’t worry about the appeal.”

“Wake up Chris. If I don’t somehow come up with the filing fee and file it on time, the whole thing goes away. Writs of Mandamus are a waste of time on something that is filed late. Am I speaking English?”

In my head, the team of sledgehammers is back. I can feel the blood vessels swell, as I sit here. Finally I say, “How about the appeal? What are my chances on appeal?”

The lawyer replies, “Depends if he has friends in the Court of Appeals.”

note: During my sentencing, in March, 2008, the judge in my case said, in front of the jury, as an auctioneer would say: “Thirty, thirty, do I hear sixty?”

The comment, “She could be naked, riding on an elephant through the middle of town at noon, singing a song about heroin” was made after the suppression hearing. Ironically, in an inappropriate yet darkly humorous way, the judge was pointing out that it is not illegal to mention the name of a controlled substance, or to even sing a song about a controlled substance, while riding an elephant down the street naked, at noon. He is correct, of course, because we have a First Amendment right to free speech, and mentioning something about [insert the name of a controlled substance here] is not illegal.

Why, then, after making this comment, did the judge deem such free speech an illegal act? We do not know the answer.

Also of interest: Herion was the subject of a front-page news story in the area, just prior to my arrest. Chris McNeill refused to show the article to the jury during my trial. Also, Chris McNeill failed to include the transcript of the preliminary hearing in the record on appeal. The preliminary hearing transcript contained McCracken County Deputy Eddie McGuire’s under-oath statements shortly after my arrest, and the statements differed dramatically and materially from his statements later on, also under oath. I had to file a motion with the Court of Appeals to include the preliminary hearing testimony, so that the Court of Appeals could see how Eddie McGuire changed his story. The motion delayed my appeal for a year, while the Preliminary Hearing transcript and testimony was included in the record. I was stunned when I learned that my own lawyer had made such an omission and created the one-year delay.

Written by Masoninblue and reblogged from frederickleatherman.wordpress.com. If you are not following the legal case but you are looking for a Frog Gravy post, please go here.

Author’s Note: This is the final part of the Killer Cross. After the conclusion, I will discuss the real reasons why we believe Chris McNeill refused to use it.

120. Q: Deputy McGuire, I presume you do know the difference between 1 gram and 0.1 grams, don’t you?

A: Yes.

121. Q: When you booked the controlled substance into evidence, you wrote in your report that it weighed 1 gram, didn’t you?

A: Yes.

122. Stricken

123. Q: But the substance weighed by the lab analyst at the Kentucky State Crime Laboratory was only one tenth of a gram, right?

A: Yes.

124. Q: You sent the blood sample to the crime lab for analysis before the preliminary hearing, didn’t you?

A: Yes.

Lab report

125. Q: But you didn’t send the substance that you knew all along was gonna be crack until after the preliminary hearing, right?

A: Yes.

Transcript Preliminary Hearing, page 5, lines 1-5

126. Q: That’s because you knew what it was going to be all along, even though you didn’t know how much it was going to weigh, correct?.

Answer: Yes.

127. Now, I know I’m not your lawyer, so you may want to consult a lawyer, if you don’t already have one and tell her what happened here today. I’m sure she will tell you that the only way to avoid a perjury indictment is to recant your lies and finally tell the truth, but we’ll leave that for another day and another jury.

Author’s Note: I doubt any lawyer would have made the last statement because it is improper. It is not a question and it is argumentative.

What is the significance of the weight difference?

We believe the deputy did not recover a controlled substance from underneath his back seat when he pulled the seat back to search for her watch. Recall that, when they arrived at Lourdes Hospital, she told him that her watch had fallen off her wrist during the ride and she asked him to please retrieve it. I find it impossible to imagine that she would have asked him to retrieve her watch, if it had fallen off her wrist while she was attempting to slough a rock of crack behind the back seat. That would be like asking the deputy to retrieve my watch and, while you’re at it, please pickup my dope. That does not make any sense.

A few months after the arrest, the police officer in charge of the McCracken County Evidence Unit was arrested at a flea market in an adjoining county for attempting to sell a handgun that he had removed from the evidence unit without proper authority. The gun was loaded and the person to whom he was trying to sell it accidentally shot himself. The wound was not serious, however, and he survived.

As I recall, the newly elected sheriff, arranged for an inventory to be made of all of the items in the Evidence Unit by an independent auditor. The final report was disquieting to put it mildly. The unit was not secure. In fact, it was not exclusively used to store evidence with access limited to the people who worked in the unit. That is standard procedure for police departments all over the country. I believe the auditor also reported that a room within the unit was used as a lunchroom by civilian employees and police personnel at the Sheriff’s office. In other words, it was basically an open-air pharmacy with guns, drugs, and money available to anyone who worked at the Sheriff’s office at anytime. The auditor found evidence missing as well as evidence stored in lockers that was not even listed as evidence on the inventory sheets and logs maintained by the unit.

One would have expected a thorough investigation of everyone who worked at the Sheriff’s Department and prosecutions of people who stole stuff, but the only person prosecuted was the boss who attempted to sell the loaded gun. He pled guilty to some relatively minor offense and that was it. The story disappeared.

I googled the story today looking for the name of the officer in charge of the evidence unit and verification of what I recall, but could find no reference to the story, which has apparently been scrubbed. I find that troubling.

We believe Deputy McGuire wanted a notch on his gun, figuratively speaking, and he planned to obtain some heroin in the Evidence Unit by raiding a drug exhibit, but he could not find any and had to settle for crack, which would account for the weight discrepancy (0.1 grams versus 1 gram) and for his delay in sending the rock to the Kentucky State Crime Laboratory for analysis.

We believe he formed this plan on the way to the hospital after the roadside searches failed to turn up any drugs, paraphernalia, or drug residue. He likely seized something like a bread crust, perhaps from something he ate earlier in the front seat of his vehicle before the stop, which occurred at approximately 8:20 PM. Or, maybe he found it under the back seat when he retrieved her watch. Wherever he found it and whatever it was, he probably discarded it after he booked her into jail.

He filled out his narrative report and entered 1 gram as the approximate weight of the suspected controlled substance, intending to later obtain a small amount of heroin in the unit and send it on for analysis to the crime lab. We think it significant that he charged her with possession of a controlled substance without ever specifying what he thought it was in the Uniform Citation or his narrative report.

When I called the court the next day after Crane Station’s arrest, I was told by a court official named Kimberley Thornton that Crane was charged with possession of heroin, tampering with evidence, and DUI. Someone must have told her that Crane was charged with possession of heroin because the drug was not mentioned in the deputy’s paperwork.

I went to the preliminary hearing a week later believing Crane was charged with possession of heroin only to discover that she was charged with possession of crack cocaine.

Deputy McGuire testified at the hearing that the substance was still in the Evidence Unit; that he had field tested it for heroin sometime after the arrest and obtained a negative result; and that he had not field tested it for cocaine because he “knew all along it was gonna be crack.”

How did he know that, unless he already knew for certain what it was because he obtained it from the Evidence Unit after he could not find any heroin?

If he did this, he would have done it several months before the scandal broke about the evidence unit. That did not happen until after the new sheriff was elected and he was elected in November 2006. Crane Station was arrested in late June, 2006.

The purpose of the cross examination was to so utterly destroy Deputy McGuire’s credibility that the jury would believe him capable of almost any misdeed, including perjury and planting evidence. Whether I would have made that argument had I represented Crane Station, which I could not do because I was not admitted to the Kentucky Bar, would have depended on some investigation that had not been done, and receipt of additional discovery that had not been requested, despite my recommendation that it be requested. I may have elected to leave out the specific theory and rely on reasonable doubt based on Deputy McGuire’s shredded credibility.

Whether I would have argued that the deputy was a perjurer who planted evidence or a confused young man with an extremely poor memory such that he was incapable of establishing anything beyond a reasonable doubt is unclear, although I would have been sorely tempted to go for the hard approach.

Finally, in the spirit of fairness, I must point out that I neglected to include a series of questions in the cross about the deputy’s testimony at the preliminary hearing when he said the watch and the controlled substance were not in plain view. He testified at the suppression hearing and later aqt the trial that they were in plain view in the seatbelt crack next to where she was sitting. Both statements cannot be true.

I drafted this set of questions by hand over a period of two to three hours and simply forgot to include them, but I do recall telling McNeill that they should be included.

Now, why did Chris McNeill throw the case by refusing to use this devastating cross?

We do not believe he was telling us the truth when he said the jury would get angry if he used the cross examination since Deputy McGuire was young and innocent. We have come up with three possible reasons.

1. He is the regional chief of the public defenders office for a multi-county area in western Kentucky. In order to protect his budget, he has to assist in keeping the railroad running on time. Therefore, he has a strong interest in not ruffling anyone’s feathers and that means not fighting too hard in some cases. This is a built-in conflict of interest and I don’t think any lawyer in his position should be trying cases. Besides, running the office is a full time job.

2. He wanted to be appointed by the governor to replace a retiring circuit court judge, so taking on the corrupt legal system in western Kentucky was the last thing on his agenda. He didn’t get the job, btw. The chief prosecutor did.

3. He doesn’t have the stones to go to war. He is too timid to take on corrupt cops, prosecutors, and judges. He also lacks integrity. He is not a stand-up guy. Anyone who is too timid and dishonest to fight for his client does not have the right stuff to be a criminal defense attorney.

McNeill did not order the preliminary hearing to be a part of the record on appeal and this delayed action by the Court of Appeals for one year. We believe he did that deliberately because that is when Deputy McGuire testified that the watch and the controlled substance were not in plain view and he had to pull back the seat where he found them after she asked him to look under the seat for her watch. We believe he did not want the Court of Appeals to see that transcript, as it would show that he provided ineffective assistance of counsel in violation of her Sixth Amendment right to counsel.

Most people do not realize this, but criminal defense lawyers are our last line of defense and only hope for keeping the system honest. Honest and knowledgeable judges and prosecutors know this to be true and will openly acknowledge it. Corrupt judges and prosecutors hate honest and tough criminal defense attorneys. Ever since Reagan was elected president in 1980 and commenced an undeclared and ever escalating war against them, corruption has been increasing. Now it has reached the point where the criminal justice system is an openly corrupt and stinking sewer in many parts of the country.

Written by Masoninblue and reblogged from frederickleatherman.wordpress.com. If you are following the Frog Gravy incarceration blog, and you are not interested in the legal case, please refer to today’s Frog Gravy 72: Meanness Among Warehoused Inmates.

Author’s note: Welcome back to the Killer Cross. If you are a new reader, or you would like to review the previous three portions of this cross examination, go here for:

Part 1,
Part 2
Part 3

I did not know the answers to questions 106-108, so I left them blank and recommended Mr. McNeill check it out. Crane’s first lawyer, Will Kautz, had asked Deputy McGuire if he would be willing to submit the plastic baggie containing the rock to the crime lab for fingerprint analysis, which he agreed to do. These questions were designed to elicit answers relative to his handling the bag. Crane and I knew her fingerprints would not be on the bag and we figured his fingerprints would be.

We found out at trial that no request was made by McGuire or a prosecutor to check for prints on the bag.

Questions 75-81 were supplied by Crane-Station

75. Q: You previously testified under oath in Mrs. Leatherman’s case that the seatbelt crack where Mrs. Leatherman was seated in the back of your cruiser for transport did not have a seatbelt pulled through, is that correct?

A: Yes.

Transcript Suppression, page 25, lines 22-25

76. Q: So, in your thorough, routine weekend maintenance, you forgot to pull the seatbelt through?

A: Yes.

77. Q: So, Mrs. Leatherman was cuffed behind the back for transport without the benefit of even seatbelt safety, correct?

A: Yes.

78. Q:Are you aware that Kentucky has a seatbelt law?

A: Yes.

79. Q: And, as a trained police officer who has seen any number of traumatic injury accidents, you can surmise that the seatbelt law is in place to prevent injury, permanent disability, or death, correct?

A: Yes.

80. Q: But the benefit of added safety does not apply to your suspects that you handcuff and place in the back seat for transport, correct?

A: Yes.

81. Q: And this ‘oversight’ on your part could place not only you but your entire department, in jeopardy for carrying liability for injuries or deaths that could have been prevented, correct?

A: Yes.

82. Stricken.

83. Q: When you filled out the Uniform Citation, you charged Mrs. Leatherman with possession of a controlled substance, but you did not specify or identify the substance, did you?

A: No, I didn’t.

84. Q: Even though you immediately recognized it as crack, correct?

A: Yes.

Transcript Grand Jury, page 7, line 12

85. Q: Crack is a form of cocaine, isn’t it?

A: Yes.

86. Q: Cocaine comes in another form called powder, right?

A: Yes.

87. Q: And isn’t it generally true that white folks prefer powder cocaine while African Americans prefer crack?

A: Yes.

88. Q: Isn’t it also true that crack is smoked?

A: Yes.

89. Q: Crack is a highly addictive drug, isn’t it?

A: Yes.

90. Q: That’s because crack produces an intense high that only lasts a few minutes, correct?

A: Yes.

91. Q: Coming down from that high is so unpleasant that users refer to it as crashing, isn’t that right?

A: Yes.

92. Q: And one reason why crack is so addictive is that users want to feel good again so they’ll smoke another rock, if it’s available, won’t they?

A: Yes.

93. Q: Most users will smoke up all the crack they have and go look for more as soon as they run out, right?

A: Yes.

94. Q: They will keep smoking it sometimes for several days until they run out and then they might sleep for several days, right?

A: Yes.

95. Q: Crack smokers usually carry a glass pipe and a torch with them so they can smoke crack as soon as they purchase it from their dealer, right?

A: Yes.

96. Q: You and Deputy Walters and Officer Dawes did not find a glass pipe in Mrs. Leatherman’s car or on her person, correct?

A: Yes, you’re right.

97. Q: You, Deputy Walters and Officer Dawes did not find a crack torch in her vehicle or on her person, correct?

A: Yes, you’re correct.

98. Q: And the three of you did not find any residue of smoke crack in her vehicle or on her person, right?

A: Correct.

99. Q: It’s not unusual for crack users to have burned lips, right?

A: Correct.

100. Q: It’s not unusual for crack users to have burned fingertips, correct?

A: Correct.

101. Q: And crack users, or people under the influence of crack will have dilated pupils, right?

A: Yes.

102. Q: Since you didn’t document that Mrs. Leatherman had dilated pupils, the ladies and gentlemen of the jury can conclude that she did not have dilated pupils, right?

A: Yes.

103. Q: You picked up the suspected controlled substance with your fingers, didn’t you?

A: Yes.

104. Q: You were not wearing gloves, correct?

A: Correct.

105. Q: You wouldn’t want to risk catching a serious life threatening disease such as AIDS or Hepatitis C by coming in contact with a foreign object or substance that might be infected, right?

A: Of course.

106. Q: I noticed on the video that Deputy Walters wore rubber gloves when he searched the trunk of Mrs. Leatherman’s car. Do all deputies carry rubber gloves with them on patrol?

A:

107. Q: Did you have rubber gloves available in your vehicle?

A:

108. What hand did you use to pickup the suspected controlled substance?

A:

109. When you showed it to Mrs. Leatherman, you said, “It sure looks like heroin to me,” didn’t you?

A: Yes.

in dash audio/video

110. Q: She responded that she didn’t know what it was although it looked like some kind of bread crumb, correct?

A: Yes.

in dash audio/video

111. Q: Then she told you to find out what it was by field testing it and sending it to the crime lab for a confirmatory test, right?

A: Yes.

in dash audio/video

112. Q: After you took her to jail, you field tested substance for heroin, right?

A: Yes.

113. Q: Even though you believed it was crack?

A: Yes.

114. Q: The substance tested negative for heroin, right?

A: Yes.

115. Q: But you didn’t field test it to determine if it was crack, did you?

A: No, I did not.

116. Q: And the reason you didn’t is you knew all along it was crack cocaine, right?

A: Yes.

117. Q: If you had any doubt that it was crack, you could have field tested the substance, correct?

A: Yes.

118. Q: You were trained to field test supected controlled substances to eliminate the possibility that a suspected controlled substance is not a controlled substance, right?

A: Yes.

119. Q: Yet, even though you knew it was crack all along, you did not specify in the Uniform Citation that the controlled substance was crack cocaine, correct?

A: Yes.

To be continued . . .

Cross posted from my law blog.

written by Masoninblue and reblogged from frederickleatherman.wordpress.com.

Author’s Note: This is a continuation of the Killer Cross that never happened because Crane Station’s lawyer, Chris McNeill, refused to use it. If you have missed the first two parts of the cross, which are in Part 3 and Part 4 of this series, follow the links. I recommend reading them before reading this post, for the sake of continuity.

All rise. Court is again in session.

Good morning, ladies and gentlemen. You may be seated.

Deputy McGuire, you may return to the witness stand. I remind you that you are still under oath.

Counsel, you may proceed with your cross examination.

Thank you, your Honor.

40. Q: On the way to the hospital, you never detected any movement in the back seat that caused you to believe that Mrs. Leatherman was attempting to hide anything, did you?

A: No.

Transcript Suppression, page 24, lines 15-18

41. Q: But you testified under oath to the grand jury that on the way to Lourdes Hospital “Of course, she’s cuffed behind her back, and she is trying to work it — work it down into the seat, and she dropped her watch with it,” didn’t you?

A: Yes.

Transcript Grand Jury, pages 4-5, lines 23-1

42. Q: You didn’t see anything that would suggest she did that, did you?

A: No.

43. You told another lie, didn’t you?

A: Yes.

44. Q: You also testified to the grand jury that the Kentucky State Crime Laboratory result of the alcohol content in Mrs. Leatherman’s blood wasn’t back yet, didn’t you?

A: Yes.

Transcript Grand Jury, page 5, lines 17-18.

45. Q: Please take a look at Defendant’s Exhibit A. It has been identified as a copy of the laboratory analysis of the alcohol content in Mrs. Leatherman’s blood by Examiner Neil K. Vowels. Do you recognize it?

A: Yes.

46. Q: He did not detect any alcohol in her blood, did he?

A: No, he didn’t.

47. Q: Please take a look at the bottom left corner of the exhibit. There is a notation that reads, “Date Completed.” What date appears next to these words?

A: 7/14/2006.

48. Q: You testified before the grand jury on July 28, 2006, didn’t you?

A: Yes.

49. Q: So, you testified 14 days after Examiner Vowels completed his report, correct?

A: Yes.

50. Q: Now take a look at the top line. It indicates that the report was faxed to the prosecutor’s office at 12:32 PM on July 24, 2006, doesn’t it?

A: Yes.

51. Q: That was 4 days before you testified before the grand jury, correct?

A: Yes.

52. Q: Now at the grand jury when the Commonwealth’s Attorney said, “We don’t have the blood results back?” and you answered, “I don’t believe so, blood or lab, yeah,” can you explain why you and the Commonwealth Attorney did not know the result of the alcohol analysis of Mrs. Leatherman’s blood sample — a test completed two weeks before and faxed to the Commonwealth’s Attorney four days before you testified before the grand jury?

A: No.

53. Q: You have testified that Mrs. Leatherman failed all six clues on the HGN test. You did not document the basis for your conclusion in your narrative report, did you?

A: No.

54. Q: We only have your word for that, don’t we? Just as only have your word that she told you that she was on all of her prescription medication?

A: Yes.

55. Q: For the sake of argument, let’s assume you did tell the truth when you testified that she failed all six clues. As a police officer certified to give the HGN test, you must know that NHTSA, the National Highway Traffic and Safety Administration, recommends that the test be administered to a suspect facing away from the police cruiser because the strobing lights will cause a false nystagmus, don’t you?

A: Yes.

Link.

Q: Yet, you positioned her facing your strobing police cruiser when you administered the HGN, didn’t you?

A: Yes.

in-dash video

56. Q: Metoprolol is one of the prescription drugs that Mrs. Leatherman had in her car when you pulled her over, correct?

A: Yes.

57. Q: Metoprolol is a drug used to control hypertension, or high blood pressure, correct?

A: Yes.

58. Q: As a police officer certified to administer the HGN test, you know that hypertension can cause nystagmus, don’t you?

A: Yes.

59. Q: You, Deputy Walters, and Officer Dawes thoroughly searched Mrs. Leatherman’s vehicle, including the trunk, her purse, and her personal belongings, correct?

A: Yes.

60. Q: Other than the three prescription drugs, you didn’t find any drugs, drug residue, or paraphernalia, did you?

A: No.

61. And Officer Dawes thoroughly searched Mrs. Leatherman by the side of the road before you placed her in the back seat of your police cruiser, didn’t she?

A: Yes.

62. Q: The search included a visual examination of her genital area, correct?

A: Yes.

63. Q: She also reached into Mrs. Leatherman’s back pockets, correct?

A: Yes.

64. Q: And before the search, you ordered Mrs. Leatherman to empty her front pockets by turning them inside out, didn’t you?

A: Yes.

65. Q: And Officer Dawes checked Mrs. Leatherman’s breasts to see if she might have hidden something in her bra, didn’t she?

A: Yes.

66. Q: She also checked around Mrs. Leatherman’s waist to see if she might have hidden something there, correct? And shoes?

A: Yes.

67. Q: No drugs, drug residue, or paraphernalia were found, right?

A: Correct.

The answers to questions 59-67 can be verified by the in-dash video.

68. Q: You didn’t arrest her for DUI Alcohol, did you?

A: No, I did not arrest her for DUI alcohol.

69. Q: You didn’t arrest her for possession of a controlled substance at that point either, correct?

A: Yes.

70. Q: You arrested her for DUI Drugs, didn’t you?

A: Yes.

Transcript Preliminary Hearing, page 8, lines 4-6.

71. Q: You didn’t advise Mrs. Leatherman that she was under arrest, did you?

A: No, I didn’t.

72. Q: You told her that you were taking her to Lourdes Hospital for a blood test, didn’t you?

A: Yes.

73. Q: A blood test that she offered to take, correct?

A: Yes.

74. Q: You didn’t tell her you were taking her to jail, did you?

A: Correct, I didn’t tell her I was taking her to jail.

Author’s Note: Questions 71-74 set up a point to be made during final argument; namely, that Crane-Station had no reason to attempt to slough a rock of crack behind his seat during the ride to the hospital. Assuming for the sake of argument that she had somehow hidden it so well that Officer Dawes could not find it and, given that we know that Crane-Station knew her blood test would come back negative for alcohol and drugs, we can reasonably conclude that she would have had no reason to think she would be searched again. Therefore, why risk attracting attention attempting to slough drug?

This illustrates another important point about cross examining effectively. Use it to set-up your final arguments during summation.

Judge: Excuse me Counsel. Let’s break for the day. Court will be in recess.

To be continued . . .

Cross posted from my law blog.