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Equine Don posted:I know just the person! Hi, Equine Don asked me to pop in and help give some lawyer's perspective. Happy to oblige, but rather than go through all the backlog, maybe best to just answer specific questions. Hope this helps.
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Dec 16, 2014 21:03
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First off, I make a few assumptions here...and I certainly have a personal bias. I am a prosecutor. I practice in an extremely violent urban area with a lot of gang activity, and the majority of my cases are homicides. Unfortunately a disproportionate amount of them are black teens shooting other black teens. I don't think most people are "evil" including the prosecutors here, and I think we have to assume that any racism which played a part in Ferguson was subconscious rather than conscious. That said, we also can't ignore the impact that years of failing race relations in that community have had on everyone's perceptions. Also, my state does not use grand juries, and our prosecutors are not elected officials, they are chosen by an independent commission which includes private attorneys and judges. skipdogg posted:What legal options do the feds have in this case, and what do you see likely happening? So far as criminal charges go, the feds are pretty much limited to a criminal level civil rights case, which is an extremely difficult bar to meet. They would have to prove that Wilson consciously shot Brown *because* he was black. They would have to prove this beyond reasonable doubt. The only civil rights cases that have been successfully prosecuted involved things like someone getting beaten up while the attackers yelled "kill the Jew" or something like that. Frankly, knowing what the bar was, and what many of the facts here were, I think it was extremely irresponsible for the feds to initiate a civil rights investigation (which effectively undermined the state investigation) knowing full well it would probably result in nothing, and then quietly abandon it as Ferguson burns. A more responsible approach would be to announce the federal results in tandem with the state results, to make sure the public knew everything was on the same page, and help an already distrustful community go home thinking that maybe it wasn't the completely wrong result. This is not to say they shouldn't do anything...again, I think there's a lot here that warrants investigation as far as the climate in Ferguson and systemic issues that have left an entire community willing to believe that a member of law enforcement would execution style murder a black teenager. But then, I also think Holder has been a pretty terrible and dishonest AG. Not a Children posted:What's your take on the prosecution in the case? Should he have recused himself, if only to avoid the appearance of the conflict of interest? Do you think that his decision not to do so had anything to do with, or perhaps was a result of underestimation of, the publicity the case was getting? Misconduct? No. I can't say I've seen anything that looks like deliberate misconduct (and I am very careful to accuse any attorney, defense or prosecutor, or ethics violations unless it's clearly indicated.) But there are certainly some things about the way it was done that make me uncomfortable. I think first off, that one reason cop cases are hard is that there is a long term working relationship between cops and prosecutors. 99% of the time, they are on the same team. Prosecutors rely on cops to help build their case. Often their case requires cop testimony. I don't think a prosecutor would deliberately tank a cop case as a circle the wagons kind of thing...but look at it this way...if someone you know, and work with, and have relied on in the past, tells you something, you will be inclined to give them the benefit of the doubt, no? This is not "circling the wagons" it's human nature...we tend to trust those we've built relationships with. And even if he didn't know Wilson personally, Wilson gets the subconscious benefit of all the cops the prosecutor did know. Add to that his personal story, and there is a major perception issue here. From the get-go, I thought he should recuse. If he were a potential juror in a case like this, he would be struck for cause. The case was going to be a powderkeg and it looked bad. Now, he may have been thinking "I'm the boss, the buck stops with me..." but since he isn't even the one who presented the evidence at all, and he left the whole case to two female DAs, I think he should have recused himself. His staying there completely overshadowed the things they did right, for example the fact the entire investigation was handled by a different police department because of conflicts etc. I don't think he under-estimated the publicity...he would have to be a complete retard for that to be true...I think it was either arrogance at worst (you can't tell me to step down! even though I'm not even taking the case) or some kind of backfired leadership stance/desire to look strong for the next elections. One reason I hate elected prosecutors and judges. The three big errors I saw were (1) giving the jury a copy of a statute that has been unconstitutional since 1986 (2) calling a witness (the loony with the racist diary) who had obvious credibility issues, and (3) spiking the football afterwards. Dude...not...helping.
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Dec 17, 2014 01:06
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Michael Scott posted:As people who follow this sort of stuff know, that officer was immediately fired, arrested, and charged with felony assault; the trial is still ongoing. I can't say I'm a fan of the grand jury. In theory it's supposed to serve as a check on prosecutorial abuses and politically motivated prosecutions. I see two solutions to this...don't elect prosecutors and don't hire prosecutors who are assholes.
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Dec 17, 2014 04:15
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I have mixed feelings on the police cam question. In theory it sounds like a great idea, and I'm sure police would love to have recordings too if it supports their word. However, we have a huge problem getting people to talk and on-scene interviews are usually the best chance a cop has to get witness cooperation before people start developing selective amnesia. The maxim "snitches get stitches" is very real in some areas. Knowing they were being videotaped might have a chilling effect on witness cooperation. Also, I would have some concerns about footage being taken out of context to push political agendas, and the fact that the camera can't always capture everything. See e.g. the "collateral murder" video from wikileaks. To a civilian, looks like people cackling with glee "GET SOME GET SOME!" while gunning down unarmed civilians. The full video shows that the target was actively collecting not just the wounded, but their weapons as well, which makes him a lawful target under the laws of armed conflict. And anyone with insider military knowledge knows that with fully automatic weapon systems, shooters are sometimes taught to say "Get you some" while pressing the trigger to keep consistently timed bursts. Easy phrase to remember under pressure...has right duration for the appropriate burst. And an apache is not usually a patrol vehicle, it's usually called in support...which means something had to have happened prior to the video for them to be there in the first place. However, if you could put in place policies like "camera must be clearly deactivated before interviewing witnesses, and witnesses must be told that they are not being filmed" and limit public release of the footage or prohibit cutting/editing, then it might be worth looking into.
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Dec 17, 2014 16:03
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Missouri Fever posted:I heard about this. Could you elaborate? Also, why are there seemingly no consequences for this? I wrote a long response and then my internet crapped out. Here's the short of it. Tennessee v. Garner says it is a violation of the fourth amendment to shoot a fleeing suspect unless there is probable cause to believe they pose an imminent risk to public or officer safety (has a gun, driving recklessly through a crowd, going for a weapon, etc.) Missouri's statute has the old fleeing felon rule, which lets you shoot a feeling felon or suspect regardless of risk posed. States don't always update their laws quickly after a SCOTUS case (though 30 years seems excessive) and even if a law isn't flat out found unconstitutional, court cases will explain, limit etc. so juries are not usually given the statute, they are given stock jury instructions that explain the law in layman's terms with all the terms and definitions explained and developments in the law accounted for. Probable case means blah blah blah, negligent means blah blah blah etc. The fact she gave them the statute at all is weird (Missouri has model instructions...they just aren't online.) The fact the prosecutor didn't know when she handed it to them that it was unconstitutional is also a problem. Tenessee v. Garner is a landmark crime pro case that every 1L knows about. (the fact missouri has taken 30 years to update its statute is also a problem) However, our system is built largely around protecting the rights of the accused, so when a prosecutor screws up, to the benefit of the defendant, there really isn't any recourse. Someone could theoretically file a grievance against her alleging incompetence, but it would probably result in a private reprimand at best. ActusRhesus fucked around with this message at 01:55 on Dec 20, 2014 |
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Dec 19, 2014 14:21
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Maarek posted:From what I read she gave them a copy of this unconstitutional statute and then told them to 'fold it in half' later on. She told them parts of it were wrong but refused to explain to them WHICH parts, even after being asked by jurors. That seems very strange and shady to me, but maybe that is normal attorney conduct? Yeah no. None of that is normal. The whole reason model jury instructions exist is so that laypersons don't have to try to figure out what a statute means. Some of what you posted is a little inaccurate. She did iirc tell them what parts were no longer valid, but the take home point is they shouldn't have been given the statute in the first place. They should have been given model jury instructions.
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Dec 21, 2014 04:24
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Re: Seizure and 4th Amendment, previous posters are right. It's only 8th amendment if it is "punishment" which kicks in after a finding of guilt. This is why, although his comments made the internet left collectively lose their poo poo, Scalia's comment on torture of detainees not violating the constitution was technically correct. (It still violates pretty much every known international human rights and law of armed conflicts law, so it's not like "hey, wooo hoo, constitution says we can torture people." It's still illegal, just under a different analysis.) Re: O'Donnell, first off, stop listening to O'Donnell. Citing O'Donnell is like citing Glenn Beck. He's not a journalist, he's a television agitator, and his comments are oversimplified and deliberately inflammatory. If you read the full transcripts, the ADA told them that after doing some research (which she should not have had to do because jesus gently caress, first year crime law, lady) she learned that parts of the statute were unconstitutional. She told the grand jury to fold it in half, and ignore it, then handed them a different explanation of the law and told them to use that. So, effectively, she corrected her error. (I personally would have collected the statutes from them, but that's just me. She told them to ignore the statute and rely on the new instructions) As for the "she didn't answer the juror's simple question" bit, a. it wasn't a simple question, and b. I wouldn't have answered it either. I'm going to address this in terms of a petit jury because my state does not use grand juries, but I imagine the rules are similar, albeit the standard and some procedures are different, The jury has to apply the law as it is given to them by the court. NOT make their own interpretation on the law. One thing jurors are instructed on, and sworn to, is to set aside their own views of the law, or their own understanding of the law, and apply the law only as given to them by the court. That question runs the risk of a juror having outside knowledge of a federal case (perhaps interpreting a federal law, not even a state law) perhaps a federal case that was later overturned by statute, whatever, and then applying, or misapplying their outside knowledge to this case, which is a no-no. So she gave a little bit of a punt of an answer, but it basically came down to "just apply this new legal explanation that we've given you" Which was the right thing to do. Now, as amateur hour as I think not knowing about Garner is, and as bad as it makes the prosecution seem overall (which is the biggest problem with what happened, it makes it look like amateur hour) in this case it did. not. make. a. difference. Wilson's testimony did not rely on his legal authority under the fleeing felon rule, either new or old. It relied on self defense. And there was no error with the first self defense instruction. The whole case boiled down, not to a nuanced definition of fleeing felon or imminent harm to public safety (and one could argue that even under the corrected statute, Wilson would have been justified because, if you believe Wilson, a person who has threatened an Officer with a weapon is a risk to public safety...I wouldn't argue that though, as he no longer had reasonable access to the weapon...still the argument could be made.) If you believe Wilson, which the grand jury appears to have done, the self defense statute controls and Wilson is not indicted.
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Dec 21, 2014 14:36
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Tibeerius posted:True, Brown wasn't wounded from behind, but there is strong evidence that Wilson fired at Brown whilst Brown was fleeing. It would help if you specified what evidence you meant.
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Dec 22, 2014 16:59
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Hi, Equine Don, Thanks for the invite to be part of what has actually been a pretty worthwhile discussion here, and much credit for actually getting involved and trying to get a critical understanding of everything that happened in Ferguson. Unfortunately, I don't think I can participate in the discussion anymore as your token prosecutor. This comment from another thread: SedanChair posted:ActusRhesus this must be a nice relaxing break from all the real activism you do (and have been scrupulous to conceal and not discuss the details of in any way, unlike your actual job which you have given enough details about to be identified). "I need to blow off some steam," you muse. Then you post a bunch of petulant poo poo like this: has me genuinely concerned. I don't see how to read that other than as a not-so-thinly veiled threat to interfere with my career, and as my family depends on the income I receive from being part of the oppressive system of injustice loathed by so many keyboard warriors, I really can't take that risk. (For the record, the reform I suggested was "hippy bullshit" was a suggestion that murderers should be sent to therapeutic healing retreats rather than prison.) If people have legal questions, or want explanations about how things work, etc. Happy to answer them via pm, but I really can't jeopardize my career. Sorry. Hope the discussion stays fruitful. ActusRhesus fucked around with this message at 03:54 on Dec 23, 2014 |
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Dec 23, 2014 03:45
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thanks, but the fact he is mentally ill doesn't help in this case. I've had internet nutcases try IRL stalking me in the past and it wasn't fun. Maybe I'll just lay low for a week or so rather than withdrawing all together. In the meantime, still happy to answer questions via pm.
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Dec 23, 2014 04:18
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That's not entirely accurate. A campaign ribbon with one star means you went at least once, but the campaign stars are awarded based on which campaigns you participated in, not how many times you went. And because for IA deployments, they made iraq eligible for either sea service OR overseas service, it's possible to have no stars on your sea service if, for example, the campaign switched over while you were still there. And not all units got unit awards. I'm more concerned about someone who was in long enough to participate in 2 campaigns having no personal decorations. I know marines are stingy about awards compared to navy but he should at least have an end of tour award by now. Edit to add: have slept on it. gently caress Sedan Chair. I just realized that given my boss's temperament, pissing off SJWs like him would probably get me promoted. And I'm union anyway. Though I'll probably stick to places like here where people seem genuinely interested in discussing rather than circle jerking. General G's comment about them being as bad as a fox news comment section was spot on. There's a lot to discuss and there's a lot to improve abut our system, but vilifying everyone who is part of it doesn't help. ActusRhesus fucked around with this message at 15:18 on Dec 23, 2014 |
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Dec 23, 2014 14:41
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Maarek posted:Did I wander into the [Ask] me about SASS thread by mistake? Can you link to the interview, I want to have the context of the comment before I opine. (Though generally yes, suborning perjury is bad. However, there are some variances by jurisdictions as to whether you have a duty to correct,or just aren't allowed to mention it in your summation. Also a difference between "I know it's a lie" and "I suspect it's a lie." A pretty important distinction for pretty much ever defense attorney who has ever called an "alibi" witness.)
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Dec 27, 2014 21:56
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Maarek posted:http://www.stltoday.com/news/local/...93587847c7.html OK, yeah, if they knew she wasn't there at all, that's a pretty big ethical violation. I get, in theory, why they took the approach they did. At best it was done under the logic of "we are going to be criticized no matter what happens here, so just throw everything in front of the GJ and play Pontius Pilate" (which I think is a cowardly way to run a prosecution). At worst it was spiking the case. I'm inclined to believe the former. However, even with that approach, there is a difference between "I think some of what this witness is saying is inaccurate, perhaps even a lie, but the jury will be instructed that they can believe all, part, or none of the testimony" and "I know that witness is lying about everything, but whatever." Pretty much every major felony case I've handled has had witnesses who were probably lying about *something* and usually those lies were obvious...example, gang shooting. Brother of victim is an eyewitness. Can state number of shooters, clothes, direction of movement, etc. but claims he did not recognize any of them. Three hours after his brother is killed, although he "didn't recognize anyone" his mother is in the ER screaming that she wants the defendant dead, and shortly thereafter, the defendant's house is shot up. But no one saw who it was. Sure. Now we put him on because although we suspected he was lying in part of his testimony (testimony that actually helped the defense..."I didn't see who it was") he was telling truth elsewhere. So the jury got the all part or none instruction, and we were fine ethically. However, if there was evidence of a lie that *hurt* the defense, that would have to be disclosed. Looks like here, they at least put in the journal entry which severely undercut her credibility, but in my opinion, she should not have been called as a witness at all. This is one of the issues I have with grand juries. I'd get rid of them all together, or adopt more of the military Article 32 model where the defense can cross-examine witnesses. However, to answer your point, if the prosecutor knew she was lying about having been there at all, she should not have been put on the stand.
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Dec 27, 2014 23:56
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Also, I should clarify, that her mental health issues alone would not warrant keeping her off the stand, as in criminal cases having witnesses of lower socio-economic classes with more untreated mental health issues is non uncommon. that would go to the weight of her testimony, not its admissibility...but if after interviewing her, it was obvious she was not actually there, the prosecutor should not have called her. (This, however, assumes that there was witness prep done at all. Different prosecutors have different philosophies on witness prep, and some witnesses are not actually interviewed prior to their testimony.) Bottom line: If he knew she wasn't there before putting her on the stand, that's a big problem. If she said she was there, they took her word for it, and it only became clear after the fact that she was lying, that's not an ethics violation, but the would have an ethical obligation not to rely on any of her testimony in their summation, and different states would have additional obligations to either correct the false testimony, or report it to the court. I don't have a tone of knowledge about what the ethical reporting obligations for a GJ would be, because we don't use them, which is a good thing. I'm not a fan. As for charging her with perjury, unlikely because of the mental health issues.
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Dec 28, 2014 15:11
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yeah, that's a huge problem IMO. Unless she was your star witness and had information no one else could provide, I generally try to avoid putting the verifiably batshit on the stand. sometimes you have no choice. Appeal I'm working on now came down to the testimony of a mentally ill crack addict. No way around it. But it sounds like here there were a ton of other witnesses, so putting her on the stand, IMO, was not necessary at best, unethical at worst. Only possible justification I can see is sometimes, if there is a concern a witness may be uncooperative, rather than bringing them in to prep them and giving them time to reconsider cooperating, or change their story (bc if their testimony contradicts anything they told you in prep, you have to disclose that to the defense)you don't interview them ahead of time, you just subpoena them for the day of testimony and shoot from the hip with the police reports/statements as a guide. And sometimes the testimony comes out a surprise. One of the fun bits of trial work. She seems to be a pretty willing witness, though. So I'm not sure why she wouldn't have been prepped ahead of time. And if she was prepped and was obviously lying, why put her on the stand? I try to use the term "unethical" sparingly. And this is an odd case because her testimony arguably hurt the prosecution's case...so it's not the traditional prosecutorial misconduct scenario. It's hard to conduct a normal analysis under these circumstances. However, as much as I try not to monday morning quarterback and extend professional courtesy, there is a lot about this case that seems kind of amateurish. However, again, I probably would not have put her on the stand. Turn over her statements to the defense and let them use them as they see fit. (Which you can't do in a GJ, but still...again, I apologize, my brain is wired for trials and HPCs, not GJs so some of my thoughts on this may not be right for a GJ analysis) ActusRhesus fucked around with this message at 16:02 on Dec 28, 2014 |
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Dec 28, 2014 15:22
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| # ¿ May 10, 2024 09:39 |
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Maarek posted:Even if it is economical it's not going to happen in this political climate. Can you imagine the attack ads against whatever politician set up a special task force to indict and convict police officers in Missouri? Being 'tough on crime' is a big thing in state and local level politics and the kind of people who eat that poo poo up are unfortunately the ones who vote the most reliably. Best neutral way would be to make a public integrity unit that handled all public employees not just cops.
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Dec 28, 2014 21:39
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