Posts Tagged ‘crime’

By Frederick Leatherman. Posted with permission. Photo provided and sized by editor at Firedoglake/MyFDL. To join an ongoing discussion about the Zimmerman case, please go here:

Cross posted from Frederick Leatherman Law Blog

Let us assume, for the purpose of this exercise, that we are representing George Zimmerman and we are going to start selecting a jury to try this case tomorrow morning.

George Zimmerman in Court

George Zimmerman

To keep it simple, we are going to focus on W9’s allegation that GZ sexually molested her multiple times during a period of 10 years that began when she was 6 and he was 8. The allegation is unlikely to come up at trial, but lots of people know about it and it might prejudice jurors against him.

This is what she said:

The sexual abuse consisted of digital penetration of her vagina and fondling.

She ended it when she was 16 and later told her parents. Her parents told his parents.

She was discouraged from reporting the crimes to the police and did not do so until after he was arrested for shooting and killing TM. When the police asked her why she waited so long (10 years) to report the crimes, she said it was the first time she felt safe.

Our client denies that he ever sexually molested her or anyone else.

We do not know if the allegation is true, but we do know that her tape-recorded statement was available to listen to over the internet and her story was broadcast all over the world and discussed by media pundits.

We know that many, possibly all of the people in the jury pool, have heard or read her story.

What do we do?

(more…)

Advertisements

This article is written by Masoninblue and published full text here with permission.

Author’s note: This diary is part of the Frog Gravy legal case and will be posted in three parts beginning today and ending on Thursday, which is Thanksgiving. In this part I explain basic pretrial legal procedure that is common in criminal cases. Specifically, I explain suppression hearings, which most of you probably have heard about, but might not know some of the finer details. This information will be helpful to understanding the incredibly bizarre events that followed; events that will be the subject of the next two parts. Now, get comfortable, buckle your sealtbelt, and get ready for your ride down the rabbit hole.

If you have not already done so, I recommend you watch the embedded video, in which a 16-year-old white girl is ordered to stand trial for murder as a 300-pound black man, to get yourself in the proper frame of mind. And, now here is The Curious Case of the Three Suppression Orders

The Fourth Amendment prohibits unreasonable searches and seizures. The exclusionary rule prohibits the prosecution from using evidence against a defendant, if that evidence was seized by police in violation of the Fourth Amendment.

A suppression hearing is a pretrial hearing in which a defendant asks the court to suppress evidence that the prosecution intends to introduce at trial against the defendant. If the court grants the request and orders the evidence suppressed, the prosecution is prohibited from introducing it or referring to it during the trial.

Suppression hearings are held before trial to resolve legal issues relating to the admissibility of evidence allegedly seized in violation of the Fourth Amendment, because in many cases, especially drug cases, the prosecution would be unable to try the case, if the court were to order the evidence suppressed. If that were to happen, the prosecution would be forced to dismiss the case and there would be no need for a trial.

Normally, a court issues a written order granting or denying the motion to suppress and sets forth findings of fact and conclusions of law that support the order. Findings of fact, as the term implies, are findings regarding what happened. They are the facts of the case upon which the conclusions of law must be based.

For example, let us suppose that Archie testified that a traffic light was green and Gillian testified that it was red. Whether the light was green or red would be a disputed fact and the judge would have to find as fact one or the other. If both witnesses agreed that the light was red, that would be an undisputed fact and the judge would have to find as fact that the light was red.

Normally, there is only one suppression order and it is entered before the scheduled trial date. Usually, the prevailing party drafts the order and provides opposing counsel with a copy. If opposing counsel agrees to the proposed order, the trial court will enter it as an agreed order without a hearing, unless the judge wants to change something. When that happens, the judge will schedule a hearing to finalize the order. The prosecutor, defense counsel, and the defendant appear for the hearing, hash out their differences, and the judge makes a final ruling. In other words, the process is transparent and ex parte contact with the judge (by one lawyer without the other present) is prohibited.

When suppression orders are appealed, the appellate courts review challenged findings of fact to determine if they are “clearly erroneous.” That is, unsupported by any evidence. Appellate courts uniformly refuse to second-guess a trial court’s challenged finding of fact, as long as there is some evidence to support it, even if the appellate judges might personally disagree with the trial court. Their reluctance to second-guess the trial court is based on the well-founded notion that they are not in as good a position to judge witness credibility since they were not present when the witness testified.

Conclusions of law are reviewed de novo. That is, they are reviewed anew without any deference to the trial court.

Crane-Station’s lawyer filed a motion, which is a formal request, to suppress all of the evidence seized by police after she was pulled over while driving down the highway and arrested for driving under the influence of drugs. Her lawyer argued for suppression on the grounds that:

1. The stop violated the Fourth Amendment because police pulled her over without a reasonable suspicion to believe that she had committed, was committing, or was about to commit a crime; and even if they did have a reasonable suspicion;

2. The subsequent arrest violated the Fourth Amendment because police lacked probable cause to believe that she had committed a crime.
The suppression hearing took place on November 27, 2006. Only one witness testified, Deputy Eddie McGuire of the McCracken County Sheriff’s Department.

We have already recounted his testimony in some detail and will not repeat it here, except to briefly summarize and note that there were no disputed facts, since he was the only witness who testified. Therefore, it should have been relatively easy for a sentient being, especially an educated judge who took an oath to uphold the Constitution and impartially follow the law, to come up with a set of findings of fact that were supported by the evidence.

Alas, it was not to be.

To be continued

Written by Masoninblue, my husband, and published here, full-text, with permission.

An interesting Fourth Amendment issue arises from time to time regarding whether a police officer initiates a contact with a person operating a motor vehicle by pulling it over, or the driver voluntarily initiates the contact by stopping the vehicle and signals for assistance by turning on the vehicle’s blinking hazard lights, as might be the case for example, with a health emergency, a flat tire, or running out of gas.

With few exceptions, the first situation is prohibited by the Fourth Amendment, unless the officer has a “reasonable suspicion” that the motorist has committed, is committing, or is about to commit a crime. A reasonable suspicion is more than a mere hunch because it must be supported by an articulable set of objective facts and circumstances that would cause a reasonable person to suspect that the individual being observed had committed, was committing, or was about to commit a crime. In the standard drunk driving case, for example, an officer would have a reasonable suspicion to believe the operator of a motor vehicle was impaired by alcohol if the vehicle was weaving, crossing the center line, exceeding the speed limit, and speeding up and slowing down erratically. The courts apply a flexible totality of the circumstances test in determining whether the officer’s suspicion was reasonable in any given case. The courts will not consider information acquired after a stop because the officer did not know it prior to the stop and could not have relied on information he did not know.

The second situation is not subject to the Fourth Amendment because there is no seizure when a police-citizen contact is initiated voluntarily by the citizen, or the citizen appears to require assistance. This means that an officer does not have to have a reasonable suspicion to contact a citizen who initiates the contact, or otherwise appears to require assistance. This distinction certainly makes sense when one considers, for example, the plight of a motorist who may have suffered a heart attack, turned on the hazard lights, pulled over, and stopped the vehicle before lapsing into unconsciousness. It would not make any sense to require a police officer to have a reasonable suspicion to believe that the apparently unconscious person was committing a crime to justify stopping to check on the person.

Unfortunately, however, the distinction between an investigatory stop that requires a reasonable suspicion under the Fourth Amendment and the voluntary citizen initated contact with a police officer that is not subject to the Fourth Amendment is not always easy to determine. As with the reasonable suspicion test, the courts consider the totality of the circumstances and ask whether a reasonable person in the same set of circumstances faced by the person in the case under review would have believed that he was free to terminate the contact at any time and drive away rather than remain and submit to the authority of the law enforcement officer until released.

This issue was raised by the prosecution in Crane-Station’s case. The trial judge agreed with the prosecution and ruled that the arresting officer, McCracken County Sheriff Deputy Eddie McGuire, did not require a reasonable suspicion to pull her over because she had voluntarily initiated a citizen-police contact to which the Fourth Amendment did not apply.

Consider the following evidence, apply the legal rules that I have set forth and explained for you, and see if you agree with the trial judge’s conclusion.

At the suppression hearing on November 27, 2006, Deputy McGuire testified that he was dispatched to investigate a 911 call. After he arrived, he checked the neighborhood for a few minutes looking for a dark blue Buick LeSabre with Washington plates that was described by the caller. When he did not find it, he cleared the call and headed back toward town on U.S. Highway 60.

(Note: The content of this call has been discussed in a previous article (link). Briefly, the caller told the 911 dispatcher that the driver of the vehicle had mentioned “something about tar heroin and all that stuff” while talking to his neighbor in the neighbor’s yard and writing in her notebook. Since this information, even if true, describes what someone said to another person that may or may not have been witnessed by the caller and it does not describe a crime or an attempt to commit a crime, the call was insufficient to cause a reasonable person to suspect that the person described by the caller had committed, was committing, or was about to commit a crime. To conclude otherwise would be to hold that police officer may lawfully seize and investigate any person who mentions the name of a controlled substance to another person. Such a rule not only would dispense with the requirement that the suspected behavior be criminal in nature, it would violate a person’s right to freedom of speech under the First Amendment.)

As McGuire approached the traffic-light controlled intersection at U.S. Highway 60 and Cairo Road, he suddenly realized that he was passing a vehicle that matched the description provided by the 911 caller. After admitting that he did not know how fast he was driving as he approached and drew alongside her vehicle (Suppression Transcript p. 13), he said,

As I was passing the vehicle she had her left blinker on as if she was going to turn out in the passing lane, but she never did.

And then as I was going to go ahead and go past her, I noticed that the license plate – it was a Washington license plate was the description that was also given at the time of the call. So when I noticed that, I slowed down and let her go back by me, and then when I pulled in behind her, she pulled over.

(Suppression Transcript p. 6)

The prosecutor asked him when he turned on his emergency lights and he said,

I just pulled in behind her, and she started to pull over. That’s when I lit her up.

(Suppression Transcript p. 6)

On cross-examination, defense counsel asked McGuire if she “was driving appropriately.” He said,

I was going – yes. She didn’t bring my attention as far as weaving or nothing like that. Speed wasn’t a factor.

(Suppression Transcript p. 13)

Defense counsel focused on the blinking left-turn signal with a few questions.

Q: Okay. And apparently, your testimony is that she had on her turn signal?

A: She had her left-turn signal on as if she was going to come into the left lane. That’s what brought my attention to that vehicle to begin with. And then as I was passing her, I noticed it had Washington tags.

Q: So I guess there’s at least a possibility she was going to move into the left lane and –

A: Right.

Q: — saw your vehicle and elected not to?

A: Correct. That’s possible.

(Suppression Transcript pp. 12-13)

Defense counsel asked him to describe when she activated her right-turn signal. He said,

A: She turned her other turn signal on when she was going into the emergency lane just to stop.

Q: When she was getting ready to pull over?

A: Yes.

(Suppression. Transcript p. 15)

When defense counsel asked him if he activated his lights “even before she came to a complete stop,” McGuire answered, “Correct.” (Suppression Transcript p. 14)

Q: So, technically, you did stop the vehicle?

A: I was going to, anyway, yes. When she started to pull over, I just went ahead and turned my lights on.

Q: When you fell in behind her, she pretty much –

A: She – yeah. I suppose she assumed I was going to stop her, so she went ahead and pulled over anyway.

Q: Safe assumption under those circumstances?

A: Right.

(Suppression Transcript 14-15)

Consider also that Deputy McGuire wrote in his Uniform Citation and Offense Report that he stopped her, which he confirmed in testimony under oath at the Preliminary Hearing and before the Grand Jury.

In addition, on October 17, 2006, Assistant Commonwealth’s Attorney (now a McCracken County District Court judge) Christopher B. Hollowell prepared and filed the Commonwealth’s Bill of Particulars declaring in pertinent part under penalty of perjury that Deputy McGuire “stopped” her vehicle.

(Note: this is also admissible non-hearsay as a declaration by a party opponent that arguably should be dispositive of the legal issue. See Part 1 of my four-part series on the hearsay rule.)

The critical question then is whether a reasonable person in Crane-Station’s position would have pulled over into the emergency lane and subsequently stopped her vehicle after a police officer, who had pulled alongside her, slowed down, fell in immediately behind her, and activated his emergency lights as she moved over into the emergency lane?

We do not believe the answer to this question is reasonably debatable, especially since the officer who pulled her over wrote in his report and consistently testified under oath at three different pretrial hearings that he “stopped” her. Finally, in the suppression hearing, he testified that he intended to stop her and he conceded that her reaction to his behavior by pulling over and stopping was reasonable under the circumstances.

He was the only witness who testified at the suppression hearing.

We believe that only outcome driven judicial mendacity by the trial judge and the Court of Appeals, aided and abetted by a strong dose of prosecutorial legerdemain in formulating an argument unsupported by the police officer, who was the only witness, could conclude on this set of undisputed facts that Crane-Station voluntarily initiated a citizen-police contact.

Author’s disclosure: Crane-Station is my wife. We were married and I was a law professor when this incident intruded into our lives.

Cross posted at my new law blog and at the Smirking Chimp.

Lighter Side of the Frog Blog:

Written by Masoninblue and published full text here with permission

The term “criminal banksters” has become an established part of our language to refer to the people who operate the too big to fail (TBTF) multinational Wall Street banks that practice an especially virulent and destructive form of worldwide predatory capitalism in which their profits are privatized to pay multimillion dollar bonuses to their CEOs disbursing the rest to investment managers and bank shareholders while their losses are socialized. That is, covered by the United States taxpayers without their consent.

This relationship basically functions like a super efficient vacuum cleaner sucking all the wealth out of the economy and redistributing it among the wealthiest 1% of the population, and especially the top 0.1%. As such, it imperils the economy and constitutes a clear and present danger to the Rule of Law, particularly the notion of equal justice under law, the Constitution, the Bill of Rights, and democracy itself. (more…)

This is the third and last part of the Mountain Pine Beetle epidemic series. If you are just tuning in now, no worries, there is a bit of interesting information here.

I would like to give another shout-out to the JCTC Biology instructor by name, but I cannot quite recall his name (it may be Burke- not sure), so if someone knows it, please tell me, so that everyone in the blogosphere will know about his good work and dedication to prison education. I think his wife may also be involved in prison work as well.

That inmate education for nonviolent Class D Kentucky offenders is being eliminated is tragic. I wonder what the rationale is for eliminating education, treatment and job skills training and ability to exit incarceration with vouching work references in hand is. Class D nonviolent offenders will be released into the community. As a member of the community, what would you prefer: an educated person, with references in hand, who is excited about turning the second half of her life into a positive, or a warehoused, traumatized person who has spent several years on the cement floor of an overcrowded jail cell learning a new criminal skill set?

note: Frog Gravy is a nonfiction incarceration account in Kentucky.

Rocky Mountain Vista
Rocky Mountain Vista by Krossbow on flickr under Creative Commons.

Mountain Pine Beetle Epidemic Related terms Of Interest

boreal– of or pertaining to the North (think Aurora Borealis). Forest areas of the North Temperate Zone.

endemic-of animals. Prevalent in a particular region.

epidemic– A rapid spread, growth or development (ie: United States incarceration rates)

pandemic-epidemic over a wide geographical area.

silviculture– the cultivation of forests.

carbon sink– a natural carbon vacuum or reservoir.

xeriscape– water-conserving landscaping.

defensible space– The area around a structure that is treated or cleared, to reduce or slow a fire.

verbenone– a “no vacancy” pheromone sign.

chlorotic– yellowed or brownish red due to diminished chlorophyll and cell death in leaf tissue.

Carbon and temperature

As atmospheric CO2, in parts per million, rises, so does the earth’s surface temperature. This, in turn, leads to drought and stresses trees, making them more susceptible to infestation. Killed trees then become a fire-prone fuel source, susceptible to intense-heat fire. In cyclic fashion, more fire leads to more CO2.

The Canadian Forest Service no longer lists its huge forests as a “carbon sink,” because at the moment, the opposite is true: they have changed from natural carbon vacuum (sucking up 55 million tons per year) to producer (245 million tons per year).

Silviculture, human perception and intervention

In terms of forest management, who or what caused the current forest decline is irrelevant. Nature is taking its course without regard to political views. Since humans are an integral part of our North American forest ecosystem, forest management is a necessary and responsible activity, and not a waste of time or money. Any cascading event such as a forest beetle pandemic will affect current and future timber and recreation industries, raise safety concerns, and motivate further study.

US government grants to the US Department of Agriculture, US Forest Service, can promote meaningful research and forest management. Since no known activities will stop the natural course of the current outbreak, we may need to accept the fact that our future forests will reflect a radical shift from past decades. With that in mind, damage control, safety and public education are primary objectives.

Management efforts include:

-Removal of hazardous trees.
-ongoing public education.
-management and rules for temporary roads and trails, to prevent civilian misuse and injury.
-thinning and reducing fuel load.
-managing fuel breaks.
-monitoring natural regeneration.
-conducting prescribed burning.
-putting blue-stained wood to use.
-continued study, data collection and evaluation.

Summary

Ironically, “beetlewood” has created a temporary sawmill industry boom. Beetles have killed so many trees that some officials have “more than doubled their allowable timber harvest” (Struck, Washington Post). This economic industrial boost will ideally lead to long-term balance and consistency, for environment and industry alike.

References

Campbell, N., Mitchell, L., Reece, J., Biology Menlo Park, CA, 1997. 38.13, Carbon dioxide and other gases added to the atmosphere may cause global warming.

Amman, G., McGregor, M., and Dolph, R., Mountain Pine beetle. Forest Insect and Disease. US Department of Agriculture, Forest Service, “Forest Insect and Disease Leaflet.” 1990.

Marcus, N., and Halford, M., Our Future Forests 2008 Guide for the landowner. NW Colorado Forest Health Guide, 2008.

Colorado State University Cooperative Extension
http://www.colostate.edu

US Department of Agriculture Forest Service, Record of Decision, Vail Valley Forest Health Project, March, 2006.

Brown, J., Report: Warming cuts trees’ life in half. 1/23/09.
http://www.denverpost.com

Bentz, B., Western US Bark Beetles and Climate Change. May, 2008. US Department of Agriculture, Forest Service, Climate Change Resource Center.
http://www.fs.fed.us/ccrc/topics/bark-beetles.shtml.

Fox, M., Pine Beetles May Affect Climate Change- Study. April 23, 2008.
http://www.reuters.com

Struck, D., ‘Rapid Warming’ Spreads Havoc in Canada’s Forests. March 1, 2006.
Washington Post Foreign Service.
http://www.washingtonpost.com.

Clayton, M., Carbon Sink Springs a Leak. March 11, 2009. Christian Science Monitor.

Glick, Daniel. The Big Thaw. National Geographic., September, 2004.

Once again, a hat-tip to my amazing nephew and Vail resident Ray, who provided references. He has worked to help control the epidemic in his area. Plus he is the most amazing extreme skier I have ever seen in my life. He does things on skis that would leave me talking through an electronic voice box for the rest of my life, including, but not limited to being towed, on skis, by a galloping horse, my hand to God, and there is a photo.