Posts Tagged ‘Frog Gravy Legal Case’

This is related to the Frog Gravy legal case.

This is part one of Kentucky crime lab analyst Ryan Johnson falsely testifying at trial by posing as a clinical expert and delivering information about this prescription drug that is false, misleading, totally unsupported anywhere in any literature on the planet, or a combination of all.

In the next few days, I will upload the rest, and then I will use this testimony as a the basis of a detailed complaint that I plan to file with the accreditation board and other authorities. At that time, I will go into gruesome detail, sentence by sentence beginning with the chemistry and going into information in the clinical literature. I will back each and every claim with the FDA-regulated package insert, the peer-reviewed literature, or a combination of both. I will provide detailed background based in known fact where appropriate, particularly regarding the organic chemistry as well as the clinical ‘effects’ of this drug.

He claims during the testimony (just to provide a teaser), that the lab had no idea it was supposed to look for this commonly prescribed benzodiazepine, and even if it did, the lab had no way of detecting the very presence of it. Problem is, and this is just one of his many problems here, he DID have that request, and he DID at least screen for the presence of benzodiazepines. Even though the lab can and does use outside competent labs for quantification, he did not send the blood to an outside lab, and that is likely because he did not detect the presence of a benzodiazepine in the blood in the first place, so there was no need for the second prong of the test, which would include quantification.

His clinical claims are false and bizarre.

As a result of this man’s false testimony, I was convicted of some crimes that I did not commit, and that includes a DUI with no drugs or alcohol in my blood, and without any bad driving or traffic violations. As a result of his false testimony, there is now a published opinion affirming in the Kentucky Court of Appeals, that contains a great deal of false information and science fiction. If you wish to lose IQ points, give it a read. Here is that opinion.

I will share the entire complaint with every appropriate related link, once I get the whole thing uploaded.

UPDATE: Here is the follow-along transcript for this portion. Second portion is being uploaded to YouTube and a transcript will be available for the whole testimony within a day or so. I will then share with my readers a sentence-by-sentence analysis of the false statements with backing literature.

Ryan Johnson (JOHNSON) is on the stand, under oath.

Chris McNeill (DEFENSE) is the defense attorney.

James A. Harris (COMMONWEALTH) is the prosecutor.

Hon. Judge Craig Z. Clymer (COURT) is the presiding trial court judge.

The testimony occurred on 1-22-2008, and was recorded on videotape. Here is that testimony.

COMMONWEALTH: (unintelligible)… Please, sir.

JOHNSON: Uh, my name is Ryan Johnson.

COMMONWEALTH: And how are you employed, Mr. Johnson?

JOHNSON: Um, I am a Forensic Science Specialist with the Kentucky State Police, um, Central Forensic Laboratory.

COMMONWEALTH: That’s in Frankfort.

JOHNSON: Yes, sir.

COMMONWEALTH: So you’ve got a four-hour drive to go home, lookin’ at you.

JOHNSON: (chuckles) Yes, sir.

COMMONWEALTH: Um. And, just summarize for our jury your training, and your education that qualifies you to practice in our lab.

JOHNSON: Um, I have a Biology and a Chemistry Bachelor of Science from (sounds like Pikeville College), (unintelligible) testing at the Kentucky State Police in Central Forensic Laboratory and I’ve had ongoing education approved for studying drug effects on human behavior, um and, the Society of Forensic Toxicology annual conferences (unintelligible).

COMMONWEALTH: You understand there are two subjects I want to ask you about (unintelligible) right to the blood sample that was sent to you, you can stipulate that there was a blood sample taken from Rachel Leatherman on the night of June 28, ’06, you did a blood test to see if there was any drugs in her blood, is that right?

JOHNSON: That’s correct, yes.

COMMONWEALTH: And your, what you test for came back “no drugs in her blood,” is that right?

JOHNSON: That’s correct, yes.

COMMONWEALTH: Okay. Now. This test that you run for drugs in her blood, does that test for clonazepam?

JOHNSON: No sir, it does not.

COMMONWEALTH: Why is that?

JOHNSON: Uh, clonazepam is a chloro-derivative benzodiazepine. Basically, it’s a, it’s a drug like diazepam but they put a chlor, a chlor, a chlorine atom on it, and that ends up, um, making it so that the test that we run, it’s called a liquid-liquid extraction, um, that test is incapable of pulling clonazepam out of the blood. So, it’s a, it’s a issue of, we need, um, the drug actually is, needs to be ran, to test for that drug, needs to be ran on, uh, what’s called liquid chromatography and with the budget the way it is right now we don’t have that instrument.

COMMONWEALTH: Um. (clears throat) Your test would have tested for heroin?

JOHNSON: Uh, we would have detected opiates.

COMMONWEALTH: You would have, would have, your test would have determined whether there was either rock or powder cocaine or its derivatives and (unintelligible) derivatives in the blood…

JOHNSON: Yes, sir.

COMMONWEALTH: And it came back negative on that.

JOHNSON: It was negative for cocaine and opia…

COMMONWEALTH: (interrupting) No heroin, no opiates, no forms of cocaine.

JOHNSON: That’s correct.

COMMONWEALTH: Can’t tell us about clonazepam.

JOHNSON: I couldn’t tell you if it had clonazepam in it.

COMMONWEALTH: As to her blood.

JOHNSON: As to her blood, yes.

COMMONWEALTH: Okay. Now I’m going to ask you about clonazepam. Are you familiar with it?

JOHNSON: Yes sir, I am.

COMMONWEALTH: Have you read the literature on it?

JOHNSON: Yes, sir, I have.

COMMONWEALTH: Including not only the, the uh, manufacturer’s um, data sheet, um, but also the other, uh, PDR-type references that describe clonazepam and its effects?

JOHNSON: Yes, sir, the general textbooks that we use are the PDR, which is the Physician’s Desk Reference, um, the Courtroom Toxicology, which is a database of drugs and their effects, um and how, how they can be detected, uh, ranges, and then another book, it’s called, um Drug Effects on Human Behavior, um, it’s just another book to tell us if there is any driving effects…

COMMONWEALTH: (interrupting) And since you don’t have a clonazepam test that you did on her blood, you can’t tell us about any clonazepam levels in her blood.

JOHNSON: That’s correct.

COMMONWEALTH: So I’m going to ask you to answer my questions based on normal dosages, okay?

JOHNSON: Yes, sir.

COMMONWEALTH: Uh, within a normal dosage time, okay?

JOHNSON: Yes, sir.

COMMONWEALTH: Um. First of all, taken in normal dosages, can you tell our jury whether clonazepam is generally what we would refer to as intoxicating?

JOHNSON: Um, for the most part, it’s considered a potent sedative, which would be intoxicating, yes, sir.

COMMONWEALTH: Potent, does that mean very intoxicating?

JOHNSON: Uh, yes, sir, it’s considered about, uh, according to the recent literature I’ve read, about twenty times more potent than valium.

COMMONWEALTH: Twenty times more potent than valium.

JOHNSON: Yeah, on a milligram-per-milligram basis.

COMMONWEALTH: And, what are the chemically, scientifically, pharmacologically recognized effects on vision of someone who is taking normal dosages of clonazepam?

JOHNSON: It can cause double vision, blurred vision.

COMMONWEALTH: Um, do you know anything about the HGN test?

JOHNSON: Um, according to what I’ve read, uh, the DRE, which is the Drug Recognition Expert, um, they recommend that benzodiazepines does cause HGN. I wasn’t for sure…

COMMONWEALTH: Causes the signs of HGN.

JOHNSON: Yes, um, after reading the literature that we have, it does say that nystagmus, either vertical or horizontal, are present, as a side effect.

COMMONWEALTH: A person taking clonazepam is likely to flunk the HGN test.

JOHNSON: That’s correct, yes.

COMMONWEALTH: And it would also be very intoxicating.

JOHNSON: It is possible, yes, sir.

COMMONWEALTH: Um, you say “possible.” Again, at normal dosages, based on all the literature that you’ve read, thought you said it was a potent, twenty times stronger than valium.

JOHNSON: Yes, sir. Um, the only reason I say possible, is that drugs do tend to have different effects on different people. A certain dosage for a person who is used to taking them might not actually be as potent as a drug, as, one that not been taken…

COMMONWEALTH: That’s not gonna, that’s not very scientific, Mr. Johnson, let me ask you this.

JOHNSON: (giggles)

COMMONWEALTH: Uh, given what you know about clonazepam, uh, if a person were taking clonazepam, would it be unusual if that person were to describe themselves as so whacked out they couldn’t remember?

JOHNSON: Uh, it could be, that would be consistent…

COMMONWEALTH: That would be consistent.

JOHNSON: That would be consistent with um, the things I’ve read about clonazepam, yes.

COMMONWEALTH: In terms of impairment, in terms of motor skills, and particularly those motor skills that we usually associate with being able to drive an automobile, would a person taking clonazepam in normal dosages be impaired?

JOHNSON: According to the pharmacy companies that produce clonazepam they do recommend that, um not driving a motor vehicle while taking the drug until you know exactly how it affects you, um, and from the studies that I’ve read it causes uh, degradation in mental ability to concentrate, uh, the fine motor skills, um, confusion, dizziness are all symptoms of clonazepam…

COMMONWEALTH: (unintelligible and interrupting)…about glassy eyes, is that something (unintelligible) recognized signs of use of clonazepam?

JOHNSON: I don’t recall (unintelligible)

COMMONWEALTH: That’s all I have. Thank you.

COURT: (unintelligible) defense?

DEFENSE: Uh, yes, Judge. (papers shuffling) Um. Mr. Johnson, even if you had found that there was clonazepam in her blood, that still wouldn’t be an indicator that she was quote under the influence of it, would it?

JOHNSON: I couldn’t testify to impairment based on (unintelligible)

DEFENSE: Right. Clonazepam can actually stay in your system for some period of time even after the effect of it wears off, right?

JOHNSON: The effects are usually given at six to eight hours and the half-life of the drug can be up to nineteen, twenty hours, twenty-seven hours.

DEFENSE: So, um, you can’t offer any testimony today about whether or not she was under the influence of clonazepam and/or impaired by the effects of clonazepam, can you.

JOHNSON: I couldn’t say, no, sir.

DEFENSE: Um. Now, you say that you all didn’t have the uh, the equipment to test for the presence of clonazepam in the blood. Uh, but, the Kentucky State Police Lab that you work for, sometimes they do send off materials for testing at other labs.

JOHNSON: Uh, we do use private labs for some things, yes, sir.

DEFENSE: Like, DNA, for example, sometimes, is that correct?

JOHNSON: Um, I’m not familiar with exactly DNA, but I know the toxicology section does do it, sometimes.

DEFENSE: Well, but, again, you’re familiar with some tests that the KSP Lab either doesn’t do or doesn’t have enough staff to do, they do contract out with labs who do do those tests, right?

JOHNSON: (giggling) It has been done, yes.

DEFENSE: Um, so certainly that would have been possible to test for clonazepam.

Tape ends here. Last part of tape is being uploaded, and will also be transcribed for follow-along convenience.

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The full-text Motion For Discretionary Review is here:

https://froggravy.wordpress.com/2011/12/22/the-full-text-motion-for-discretionary-review-frog-gravy-legal-case/

Get your Pepto Bismol. Here is the full-text reply to the Motion for Discretionary Review by Dark And Stormy Night Gregory Fuchs.

Remember, this to-be-published case was affirmed by the Kentucky Court of Appeals, and the case now sits with the Kentucky Supreme Court.

If this case becomes binding case law, guess what? Exculpatory toxicology crime laboratory testing will be irrelevant. DNA won’t matter. If you are pulled over, you might as well waive the option for clearing yourself by opting for blood analysis.

Your fate will be in the hands of a rogue, lying deputy and whatever coached speculation he offers over a lengthy period of time. Science matters not in the least in the state of Kentucky, according to this decision.

So, you see, this case is not about me anymore. This case will affect pretty much every criminal case in the future.

Commonwealth Full-Text Response To MDR [Frog Gravy legal case]

20111010084852102 (1)

Pinnochio
Image by Onion under Creative Commons on flickr.


Compare Lying Deputy Eddie McGuire’s under-oath testimony to the Paducah McCracken County Kentucky grand jury
to his under-oath testimony in this hearing.

This document is in the public domain, and it is transcribed from the official court-reporter transcript. I left out the discussion at the end, which was about the bond. McGuire’s lies and inconsistencies are so numerous that I have supplied emphasis at some of the points, to direct your attention to some of them. These added emphases are in italics and parentheses.

Don’t worry. It gets better. As his memory improves drastically with time, McGuire tells a fresh set of lies, stories and made-up facts under oath at the suppression hearing…and the again at trial!

For another look at the grand jury lies, and other lies at suppression including the hidden exculpatory blood test (photos included) that he lied about go here. You may also want to visit this site, and look up the excellent series of seven ‘Killer Cross That Never Happened’ articles, to get a feel for the extent of McGuire’s perjury in the various hearings, all in court under oath.

In these various hearings about the same case, all after swearing to tell the truth, the whole truth and nothing but the truth so help him God, the only fact that McGuire is consistent with, is his name. In this hearing, for example, he contradicts himself several times within the same hearing. He makes up some asinine scenario about me being unhandcuffed but nonetheless under arrest, and running around the parking lot at night, at the hospital.

Lying under oath is a felony that carries a one-to-five year maximum sentence, unless you are a lying deputy lying under oath in Paducah, Kentucky.

Perjury involves materially false statements with the intent to deceive.

Wiki Perjury:

http://en.wikipedia.org/wiki/Perjury

Suppression transcript to follow at some point.

Also of note: He lies through his teeth about what the 911 caller said in the 911 call, and he lies about what dispatch told him, and we have the full-text transcripts to proove that he lied and we will be sharing these, as usual, for everybody on the planet to enjoy.

#KentuckyJustUs and #BlowItOutYourAssDickheadMcGuire

The Full-Text Preliminary Hearing [Frog Gravy legal case]

The witness, DEPUTY EDDIE MCGUIRE, after first having been duly sworn, testifies as follows:

THE COURT: All right. Mr. Olsen?

DIRECT EXAMINATION BY MR. OLSEN:

Q: Sir, would you state your name?

A: Eddie McGuire

Q: Mr. McGuire, how are you employed?

A. I’m a deputy with the McCracken County Sheriff’s Department.

Q. What information do you have for this Court regarding the charges that have been lodged against Rachel Leatherman, specifically the tampering with physical evidence and the first degree possession of a controlled substance?

A. On 6/28 of ’06 at approximately 8:19 p.m., we received a complaint of a Buick LeSabre with Washington plates possibly trying to obtain tar heroin in the area of Queensway Drive. I responded to the complaint. I stopped a vehicle at Cairo Road and U.S. Highway 60 upon locating it. The officer—the subject was arrested for DUI. She was transported to Lourdes Hospital for a blood sample.

(note: If you are not already aware, the blood sample was negative for both alcohol and drugs, and the photos of these exculpatory blood tests are posted in my flickr stream, as well as in several posts relating to the legal case. I knew the blood was negative. I wanted the blood test. Not only did I have nothing in my possession, but even if, hypothetically, I had, I had no motive whatsoever to try and hide anything. My blood was clean.)

Sometime between the time I put her in my seat and the time we got to Lourdes, she placed a small baggy of a suspected controlled substance in my back seat and also dropped her watch down the same crack of the back seat. I immediately obtained the controlled substance, along with the watch, and she was charged with possession of a controlled substance and tampering with physical evidence.

Q. Did she make any statements regarding the drugs that had been dropped in the back seat and the watch?

A. She said it wasn’t her drugs and that hundreds of people come through my back seat.

Q. What did she say about the watch?

A. She said it accidentally fell off her wrist.

Q. And the drugs and the watch were located in the same area?

A. Same crack.

Q. In the same crack. Prior to that, how do you know that she was the one that placed that there?

A. On the day prior, or the two days prior, I go and–it was my days off, and I actually vacuumed my seat out at this time. And she was the first one that had been in my back seat since that day.

Q. So this is something that routinely happens, so you guys are aware of that?

A. All the time.

Q. You check these cars?

A. Right.

Q. Have the–the substance that was found in the car, do you have any idea what it is?

A. It’s suspected to be crack cocaine.

(Note: Nothing had been sent to the lab for testing at this time, except for my blood. Why did he not immediately send the substance for testing, at the same time he sent my blood for testing? Why did he wait for more than a month, after the grand jury returned an indictment on the “gonna be crack” before weighing, field testing for crack, or sending the sample to the lab for testing? We believe that he did not yet have the “suspected” crack cocaine. We believe that he later diverted a small quantity of the drug from the evidence unit.)

Q. And has it been sent to the lab for analysis, or has it been placed in evidence?

A. It’s in evidence.

Q. Okay. So it will be available to be tested?

A. Yes.

Q. Do you have any idea approximately how much it was? Was it just a little bit?

A. Just a very small baggy.

Q. And was it not field tested?

A. It was tested for heroin since that was the suspected–

Q. Okay.

A. –complaint at the beginning. It tested negative for heroin.

Q. That occurred here in McCracken County?

A. Yes, sir.

MR. OLSEN: Thank you, Deputy.

THE COURT: Mr. Kautz?

CROSS-EXAMINATION BY MR. KAUTZ

Q. The initial call about a person in this vehicle trying to purchase heroin, is that from a known caller?

(Note: In the full-text statement from the caller, there is no mention of heroin or any other drug. The statement appears word-for-word in the Court of Appeals opinion affirming.)

A. Yes. I have a statement from the caller.

MR. OLSEN: Objection. Before we go any further, it would be easier for me if you’d just limit him to specifically asking about the drugs that were located in the car. I mean, it’s clear that that would be a suppression issue; who called, where they called from, whether they were known.

So I object to that or any question related to anything like that.

THE COURT: Mr. Kautz?

MR. KAUTZ: Judge, on direct, this officer testified as to—

THE COURT: Well, I’m not making any determinations based on any of that evidence. All I’m making my determination on probable cause is based solely upon the charges– the felony charges that are pending before me. So the other information is really not relevant.

MR. KAUTZ: So you’re—

THE COURT: I’m granting–I’m sustaining the motion.

MR. KAUTZ: His motion. All right.

BY MR. KAUTZ:

Q. You pulled my client over based upon a call?

A. Yes.

Q. Did the caller make any reference to anything other than heroin?

A. No. He said that she was obtaining to buy tar heroin–was trying to buy heroin, find someone to buy tar heroin.

Q. Okay. Now, you–I take it the caller gave a description of the vehicle and the license plate number?

A. Yes. Said it was a dark blue Buick LeSabre with Washington plates.

(Note: Driving While Not From Here, only worse: Driving While From The West Coast, God Forbid.)

Q. All right. And that’s the vehicle you found somewhere down around Cairo Road?

A. Down on 60. On Cairo and 60 is where I initiated the stop, yes.

Q. And when you activated your–did you have to activate your emergency–

A. She pulled over before I activated my lights.

(His nose just grew another foot. His previous sentence was “I iniated the stop, yes.”)

THE COURT: Mr. Kautz, I’m not sure what this has to do with probable cause on the possession or tampering charges.

Q. And so–and so when you approached my client, did you arrest her on a DUI? Is that what happened?

A. Yes.

Q. Suspicion of DUI?

A. Right.

Q. Relating to alcohol or drugs?

A. Drugs. She had a beer in the car but we performed a PBT, and she had–she had very little alcohol.

Q. And what, is any, grounds did you have to believe she was using drugs?

A. Using drugs?

A. Yes.

Q. Is that it?

A. And just very fidgety, very nervous acting. But I actually stopped her with the suspicion that she possibly had some on her. When I stopped her, I asked her to step out of the vehicle, and her pants and her zipper was unbutonned. So I suspected that she possibly tried to hide some on her.

So I called for a female officer to search her because I knew I wouldn’t be able to do a thorough job of actually searching her, but the officer did not find anything at that time at the side of the road.

Q. And that’s when you made a decision to go ahead and arrest her on a DUI?

A. On DUI, yes.

Q. Based upon her fidgetyness and nystagmus?

THE COURT: Mr. Kautz, we’re not going to get into the DUI.

Q. When you arrested my client, did you search her vehicle?

A. Yes, sir. She gave me and Deputy Walters consent to search before I ever arrested her for DUI.

Q. And nothing was found?

A. Nothing was found in the vehicle other than a beer.

Q. And nothing was found when the female deputy searched her at your request?

A. Correct.

Q. Who was the female?

A. Officer Dawes with the police department.

Q. Gretchen Dawes?

A. Gretchen Dawes, yes.

Q. Conduct a thorough search as far as you could tell?

A. As far as I could tell, yes.

Q. I take it my client was never back in her vehicle after Gretchen Dawes searched her?

[break in tape recording]

Q. …to your…

A. Yes.

Q. –back seat?

A. Yes, sir.

Q. Now, you had searched–cleaned out, vacuumed your car–

A. Yes, sir.

Q. –two days earlier?

A. Yes, sir.

Q. And when did you next come back on duty?

A. This was my second day back on duty.

Q. And basically–

AA. Nobody was in it the day before. I hadn’t arrested anybody the day before or that night. She was the first person I arrested that week.

Q. All right. How can you be sure that the–am I correct that the drugs were, like tucked between–

A. There’s a crack where the seat belt comes up in it.

Q. Sure.

A. And the seat belt wasn’t pulled through it, but it was–I moved the seat, and you could see it where she had–she actually picked up her watch whenevr we got back in the seat when we came back out of the hospital, and the crack was sitting right beside where her watch was. Right there–

(Lie alert! He said, earlier in this very hearing that he “immediately” retrieved the so-called baggy. Also, I asked him to retrieve my watch. He has a lot of trouble with that dilemma, and he has quite a bit of difficulty keeping his lies and stories straight, even in this hearing, as you will see.)

Q. Are you saying–

A. –by the seat belt buckle.

Q. Was it crammed down in the little gap?

A. Right, right next to her watch.

Q. So, I mean–

A. [Unintelligible]…down there, as well.

Q. In the crack?

A. Yes.

Q. Okay.

A. So you couldn’t just–the seat comes in and out, obviously, easily because it’s detached for the purposes of searching. And I just moved the seat back, and it was sitting right there.

Q. You couldn’t see it if you were standing outside the car looking in?

A. Right. I don’t believe you could.

Q. So, basically, are you telling me that the watch and the substance that you believe to be cocaine were found, what, right next to each other?

A. The watch was, I believe, sitting on top of it.

Q. Okay. And how can you be sure it wasn’t there before, the crack cocaine?

A. Because no one had been in there before her.

Q. Well, did you take the seat out when you vacuumed the car?

A. Yes.

Q. Took the whole seat out?

A. The whole seat comes out, yes. The back seat is not attached to anything. You can just pull it directly out. I can pull it out and sit it next to my cruiser and vacuum underneath the seat.

Q. And this is the way you usually do it?

A. That’s the way I always do it.

Q. Physically, I mean, take it all the way out?

A. Yes, yes at the car wash.

Q. The–so you transport to the hospital?

A. Uh-huh.

Q. The videotape was running?

A. Yes Yes.

Q. No audio–you didn’t turn the camera around to–

(Note: On the audio, later in the tape, I demand twice that McGuire field test and lab test the substance immediately. This is audible.)

A. No.

Q. –look at her?

A. No.

Q. The videotape was running out there at the scene, too?

A. Yes, yes, sir.

Q. Audio?

A. The audio was working inside the vehicle. Between the time I arrested her, I left the video running from the time I got to Lourdes and the jail just to tape any statements that she was going to make. So that’s available.

(The Commonwealth buried them. They did not want my clear, concise statements to see the light of day. That’s the beauty of YouTube. I can make the tape available myself. It is so long that it exceeds YouTube limits, so I will have to figure out how to do this.)

Q. So you didn’t see her as you were going to Lourdes making any moves that would be consistent–

A. She was cuffed behind the back, so…

Q. So you–but you didn’t see her–

A. I didn’t–

Q. She didn’t make any movements that caused you to believe at that point that she might be trying to hide something?

A. No.

(Check the grand jury transcript. He lied about this too.)

Q. Okay.

A. It was a suspicion all along that she had something in her possession based on the original complaint.

Q. Did you find the watch and the item believed to be crack before or after you went in the hospital?

A. She made the statement that she had dropped something when we were getting out of the car. She said either “Something’s in the back seat,” or, “I dropped something.”

Q. Her watch?

A. And so I suspected that she had at that time, but I didn’t retrieve it at that time. I secured the vehicle, locked it, and we went into Lourdes because I was getting ready to get a blood sample.

Q. Okay. And she submitted to the blood test?

A. Yes, sir.

Q. And when you went back outside, that’s when you looked for what she said she had dropped?

A. Right.

(Not what he said earlier under oath in this hearing.)

She went around to the opposite side of the vehicle that she was at the first time. When she was transported to Lourdes, she was directly behind me in the seat. And when we were walking out of Lourdes after she gave me the blood sample, she went to the other side of the car, and then she immediately reached in.

When I unlocked the door, she reached in and picked up the watch. And that’s when I looked and the cocaine was down there. The crack cocaine.

Q. But she had told you even before she went in that she had dropped her watch–

A. Right.

Q. –and wanted your help to get it?

A. She said that she had dropped something or something had–“Something’s in my seat,” or something like that. I don’t remember her exact words.

But that–whatever she did say is going to be on the video–audiotape?

A. If it picked up, because she was standing outside the car.

Q. Okay. Now, once you found what–you say she basically retrieved the watch?

A. Yes. Because I had to uncuff her because of the blood test, and I never cuffed her back.

Q. Because she was being cooperative?

A. Right.

Q. –she basically said “That’s not mine. I got nothing to do with that”?

A. Right.

Q. Did she also mention that it wouldn’t make any sense for her to ask–for her to tell you–for her to ask for your help in finding something if she had hidden some coke?

A. I believe that’s on the tape.

Q. Okay. And that doesn;t make a whole lot of sense, does it?

A. That’s what I would say if I was–had just dropped cocaine. She was trying to talk me out of charging her with–

Q. All right. If you had dropped cocaine and your watch, you wouldn’t have asked the officer to help you find your watch though, right?

A. No. She got my (sic) watch. She grabbed the watch in hopes that I wouldn’t check the back seat. She picked up the watch as soon as she got in the car.

(Oh, okay. Now I’m not outside the car like he just said two minutes ago. Now I’m in the car.)

Q. All right. So no statements, admissions, confessions, anything like that?

A. No.

Q. She basically–

A. She denied it.

Q. Okay. Based upon the fact that she denied possessing the substance–the baggy, is it just a little corner?

A. It’s just a small–very small, maybe a gram.

(He was off by a factor of ten. It was 0.144 grams, about one-tenth of what he claims, but nice try for someone who most likely didn’t have a so-called ‘baggy’ yet.)

Q. Have you preserved it in such a way that it could be dusted for prints?

A. It’s possible that it could. It’s a very small baggy.

Q. Do you intend to cause it to be dusted for prints?

A. I can attempt it.

Q. Would you mind doing that?

A. Sure.

Q. Okay. Do you have somebody at the sheriff’s office that knows how to do that?

A. I could probably ask around.

Q. Okay. And if somebody at the sheriff’s office–

A. We can always send it to the lab and request fingerprints be obtained.

Q. And you’ll be willing to do that?

A. Yes, sir.

(McGuire never dusted for prints. He never asked around. He never requested that a lab dust for prints. No prints were ever obtained. Because my prints were not present on any sort of baggy. He lied when he said that he would attempt to get any prints.)

Q. Okay. The evidence that you’ve given today is all of the evidence that you know about that would connect–that would connect my client to either of these crimes?

A. Yes, sir, I believe so.

MR. KAUTZ: That’s all I have.

REDIRECT BY MR. OLSEN:

(I actually really like Kevin Olsen. I’m not faulting him at all, but check out this recovery here that he pulls right out of his ass. It’s brilliant: ‘The old Oops I Dropped Something. Thing.’ Yes, Mr Olsen! That thing! Everybody in the world does the old oops-I-dropped-some-drugs-officer-can-you-help-me-find-them-please.)

Q. Just let me break it down very simply.

Prior to her getting into that car, nobody had been in the back seat since you had cleaned it?

A. No, sir.

Q. And then she tried to the, “oh, my goodness, I dropped something” and blame whatever you found, the drug stuff, on somebody else. Did she make the comment that it could have been anybody–

A. Yes.

Q. –that there had been other people in your car?

A. She said there have been hundreds of people come though my back seat, I believe.

Q. She did not know that you had just cleaned that car?

A. Right.

Q. Okay. And that occurred in McCracken County.

A. Yes, sir.

In the beginning (and BTW, he flashed a tiny crumb-like substance in front of me in the dark. I do not remember seeing a “baggy” that night. He ignored my demands that he field and lab test it immediately.) I initially thought that another person may have stashed or dropped something. Now, unless someone can evidence-based convinced me otherwise, I believe it was McGuire. Also, after this happened, I spoke with a person who used to work in the same department many years ago who I will not name, and he/she told me that they find all sort of stuff in the backs of cop cars- guns, even…and they have no idea how some of the stuff gets there.

Also, here is an article about cops planting stuff, where the cops themselves admit to it.

Written full-test here by Nasoninblue with premission.

Author’s note: In case y’all missed it or want to refresh your recollection, <a hrPart 1 is here.

Deputy McGuire testified at the suppression hearing that he was dispatched by 911 to investigate a call by a citizen who reported that, “There’s this lady walking around in my neighbor’s yard talking to my neighbor and writing stuff down in a notebook and she mentioned something about tar heroin and all that stuff.”

The caller identified himself and described the woman and her vehicle. He also reported that the vehicle had a WA license and provided the number. He did not indicate if he had spoken with the woman; if he was present when the conversation took place; who told him about it if he was not present; or what she was writing down.

When he arrived in the area, the deputy searched for but he did not find the woman or the vehicle and he cleared the call without talking to the 911 caller. As he was approaching the traffic-controlled Cairo Road intersection in the passing lane on Highway 60, he noticed that he was passing a vehicle with its left turn signal blinking. The vehicle had WA plates and both the driver and the vehicle matched the description provided by the caller. He decided to pull her over and investigate.

He slowed down, allowing her to move ahead, and then he fell in directly behind her. She reacted by activating her right turn signal and moved over into the emergency lane along the right shoulder of the highway. As she did, he activated his emergency lights, moved over with her, and stopped behind her.

Upon request, she produced her license, registration, and proof of insurance without difficulty.

When he ordered her to get out of her vehicle, she did so without stumbling, and she followed his instructions without exhibiting any confusion or mental impairment. Other than “glassy” eyes and nervousness, he saw no signs of possible impairment. He administered a portable breath test (PBT) that she passed, effectively ruling out alcohol intoxication. Although she “failed all six clues” on the horizontal gaze nystagmus test (HGN), he administered the test improperly, according to the National Highway Transportation and Safety Administration (NHTSA) because he positioned her facing the headlights of oncoming traffic and his patrol cruiser’s emergency lights. NHTSA, which developed the test, warns police not to do that because the lights produce a false nystagmus.

The deputy conceded that he did not witness any bad driving and her blinking left-turn signal could have been due to her intending to move into the left lane, but his approaching vehicle in that lane prevented her from doing so.

After he placed her under arrest for DUI, he transported her to a hospital for a blood draw and discovered an apparent rock of crack next to her watch in the seatbelt crack of his back seat next to where she was sitting.

Author’s note: In another post we discussed his prior testimony under oath at the preliminary hearing and the grand jury in which he said he found her watch and the rock of crack under his back seat. In other words, he did not find it in plain view on the seat beside her. He said he pulled the back seat forward to look for her watch after she told him that it had fallen off and slipped behind the seat. She asked him to retrieve it because she was handcuffed and could not do it herself.

The trial judge entered three suppression orders.

1. The First Order.

On January 11, 2007, Judge Clymer issued his first order denying the motion to suppress evidence. Although all of the material findings of fact and conclusions of law were clearly erroneous, one finding of fact and its corresponding conclusion of law merit special consideration. In Finding of Fact 5, Judge Clymer wrote,

When Defendant first exited the [her] vehicle the Deputy observed a wristwatch in close proximity to a baggie with apparent controlled substance inside the car. Defendant denied the apparent controlled substance was hers but acknowledged the wristwatch was hers.

This did not inspire confidence as one can only wonder how the judge forgot or became confused and thought that the rock of crack was discovered in her vehicle rather than the police cruiser.

Not to worry, we thought. We pointed out that and other errors and asked him to reconsider his order, which he agreed to do.

2. The Second Order

On January 18, 2008, Judge Clymer entered his second order concerning the defense suppression motion. He found that while driving “in a right hand traffic lane with her left turn signal activated, [the appellant] did not turn but pulled to the right side of the roadway and stopped.” (Finding of Fact 3) “The deputy pulled in behind the stopped vehicle and activated his emergency lights.” (Finding of Fact 4) He concluded that the arresting officer “did not conduct a stop of the appellant’s vehicle” because she “pulled off the roadway and stopped” before “he pulled in behind her and turned on his emergency lights so as to investigate.” (Conclusion of Law 1)

Author’s note: We have already discussed whether this was an investigatory stop initiated by a police officer or a voluntary citizen initiated contact with a police officer. This was an investigatory stop.

Judge Clymer also concluded that “[t]he combination of a report of an unknown person, driving a Washington state licensed vehicle in a Paducah, Kentucky residential area, asking about tar heroin, later observed to signal a left turn but pull off the roadway to the right, constitutes reasonable suspicion to investigate and possibly cite for improper signal.” (Conclusion of Law 2)

Author’s note: A person who calls 911 to report a possible crime is presumed to have provided reliable information if he identifies himself and provides a current address. Since the caller in this case provided the requisite information, he would be presumed to have provided reliable information. However, even if one assumes that his information was accurate and reliable, he did not describe criminal activity. In addition, the judge’s findings of fact conflict with the information provided by the caller and the deputy’s testimony, which described an alert driver operating her motor vehicle in compliance with the traffic laws. He could not have cited her for “improper signal” because no such statute exists. Since the information provided by the presumptively reliable caller and the deputy described lawful activity, the judge erroneously concluded that the deputy had a reasonable suspicion “to investigate and possibly cite for improper signal.”

Regarding the appellant’s arrest, he found as fact that the appellant admitted that she had taken several prescription medications, including Clonazepam. (Finding of Fact 6) He also found that “[t]he maker of Clonazepam warns that it should not be used when driving a vehicle and that the drug causes abnormal eye movements.” (Finding of Fact 7) He concluded, “[d]efendants inquiring about heroin, failing an HGN test, signaling a left turn and pulling off the road to the right, and stating she was taking medication that would cause her to fail the test, constitutes probable cause to arrest for DUI.” (Conclusion of Law 4).

Author’s note: We have already discussed the HGN and Clonazepam issues noting that the product insert does not warn “that it should not be used when driving a vehicle and that the drug causes abnormal eye movements.” It advises physicians to warn their patients for whom they first prescribe Clonazepam to be careful because the drug might cause drowsiness and impair their ability to operate a motor vehicle or other machinery. If that happens, the dosage can be lowered to avoid impairment. This is actually a common warning given for many drugs that are prescribed to improve functioning. Clonazepam is such a drug and it is prescribed to enhance function by reducing anxiety and to control seizures. Dosage is critical. Assuming the judge was honest, the rest of the finding establishes that he was thinking of a different case when he crafted this effort.

To be continued.

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: