The Kentucky Supreme Court denied our Motion For Discretionary Review of the Frog Gravy legal case without opinion or comment. Here is a copy of the order:
This means we have reached the end of the road on the direct appeal in Kentucky and the published opinion by the Court of Appeals is the law of the case. The briefs filed by the parties will be available online at the Chase Law School in Kentucky at some point.
Documents in this case, including the briefs and the published opinion (pdf), are also available here:
1. Do nothing. The case no longer specifically impacts our day-to-day lives one way or the other. Fortunately, I am not on death row. The case will impact others in the future, because it is published and it sets precedent. One option is to do nothing.
2. Petition the United States Supreme Court for Certiorari, or review, of the decision. The issues are very specific in such a petition. Here is more information about Certiorari:
http://en.wikipedia.org/wiki/Certiorari
For those of you following the legal case, here are the documents and briefs that have been filed in the case so far. The case currently sits with the Kentucky Supreme Court, as a Motion For Discretionary Review. All of these documents are in the public domain. For law students following this case: filed briefs, responses and the COA opinion are all here, full-text from original sources, in one convenient place:
The Court of Appeals docket in this case is at this site.
The status of the case today:
Case # 2011-SC-000272
Case Type Discretionary Review (CRIMINAL): (1R )
Document Type Discretionary Review: (D)
Case Status Active: (A)
Last Main Event SENT OUT FOR ASSIGNMENT (07/18/2011)
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.
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.
For folks who are curious about my legal case, I will be writing about that as well. Issues are numerous and interesting. The case currently sits with the Kentucky Supreme Court as a Motion For Discretionary Review. I will be posting the initial 911 call, the dash-cam video, all recordings of hearings prior to the trial, all official transcripts that I have, briefs, responses, lab reports, open records requests, orders denying suppression, the order of sentencing, and the corrected order of sentencing, as well as anything else that anyone wrote or said, such as the Bill of Particulars and as much of the trial transcript as anyone can stomach before racing to the nearest porcelain receptacle. (I spoke to my attorney today and gave her a heads up.)
With my husband’s help, I will introduce relevant legal issues, binding case law, statutes, and case history.
Brush up on your Fourth, Fifth, First and Fourteenth Amendments.
Anything that is a matter of public record, in fact, will be here (or on YouTube).
I will start this process, I hope, about sixty days from now. In the meantime, I will continue to bring you the nonfiction account of incarceration, Frog Gravy.
I would like to thank my readers for stopping by this site and taking the time to read. I would also like to thank you for your patience. My notes are voluminous and disorganized, and although I have tried to make each essay a stand-alone, I realize that flow is an issue. I am attempting to fix these issues in the Frog Gravy manuscript.
If you are at this site by mistake, worry not. I post about other things also. I aim to please. Which brings me to this. Ever felt like you were not quite communicating with someone? Take a look at this:
Frog Gravy: The Incarceration Experience 