Criminalizing feeding the homeless should be a felony

November 7, 2014

Friday, November 7, 2014

Good morning:

That which is hateful to you, do not do to your fellow. That is the whole Torah; the rest is the explanation; go and learn.

To the rhythm of protesters chanting, “Hey, Jack, what do you say? How many homeless did you starve today?” the Fort Lauderdale city commissioners passed an ordinance at 3:30 am on October 22, 2014 criminalizing feeding the homeless on public property. ‘Jack’ is Jack Seiler, the mayor who is determined to drive the homeless out his city by criminalizing charitable efforts to feed them.

The ordinance requires groups feeding the homeless to be at least 500 feet away from residential properties and 500 feet away from each other. In case there is a city block more than 500 feet long, the ordinance prohibits more than one group feeding the homeless per city block. Those who feed the homeless also are required to obtain permission to do so from the nearby property owners and, last but not least, they are required to provide porta-potties for the homeless.

Arnold Abbott, 90, a second world war veteran and founder of the interfaith Love Thy Neighbour non-profit group, has been operating a kitchen in the Sanctuary Church and feeding the homeless for more than 20 years. Abott and Duane Black, the pastor of the Sanctuary Church, and another pastor from a local church were arrested by police for violating the law on a Sunday two days after it went into effect. Police stopped the feed just after it started thereby forcing the homeless to go without.

Undeterred by the threat of fines and a jail sentence, Abbott and Pastor Black vowed to continue the street feeds.

“We have been feeding the homeless for a long time. It is our calling and our duty to not let another human being go hungry. But now it’s a crime to feed a hungry person,” Black told the Guardian.

“The city says that it creates an eyesore; they are saying that human beings being fed is an eyesore. What they are doing is wrong. It lacks all compassion.”

They were arrested a second time on Wednesday and plan to continue what they are doing in defiance of the law, no matter what happens.

Mayor Seiler opposes feeding the homeless because he says it encourages people to remain homeless, which is like saying people who are paralyzed shouldn’t have wheelchairs because it would encourage them to remain paralyzed.

Now Anonymous has announced its support for feeding the homeless.

This song is for you, Mayor Seiler.


No immunity hearing in Zimmerman case

March 5, 2013

Tuesday, March 5, 2013

At today’s hearing, Judge Nelson asked Mark O’Mara if he still needed the two weeks she had set aside in April for the defendant’s immunity hearing.

He responded, “No.”

Does this mean that the defendant will be waiving his right to an immunity hearing?

I believe the answer is, “Yes.”

Although O’Mara has previously suggested that the immunity hearing and the trial be combined, I do not believe that makes any sense for the following reasons.

The purpose of the immunity hearing is to determine whether there is any need for a trial. If the judge grants the defendant’s motion for immunity, there is no trial and no jurors need be summoned to come to court. No time has to be reserved for the trial.

There is no reason to have an immunity hearing, unless it takes place before the trial.

The defense goes first in the immunity hearing and has the burden of proving by a preponderance of the evidence that the defendant acted in self-defense, As a practical matter, this means the defendant must testify.

The defense has no burden of proof in the trial. The defendant and the prosecution must go first and the defendant is presumed innocent.

Combining the two hearings would, in effect, deny the presumption of innocence to the defendant and that would be a major constitutional error requiring reversal.

Judge Nelson and BDLR certainly know that.

The judge is not going to go through 2-3 weeks of jury selection if that is not necessary.

Therefore, MOM has in effect waived the immunity hearing.

BOTTOM LINE: The defense cannot risk putting the defendant on the stand at an immunity hearing because of the tsunami of extremely negative publicity that would result from the evisceration of the defendant on cross by the prosecution.

O’Mara does not want to admit that his client is not credible and I can understand why because the physical and forensic evidence refutes everything he says and he has given so many contradictory and inconsistent statements about what happened that with only eight exceptions, no one will believe anything he says.

The eight exceptions are:

1. I got in my truck.

2. I followed him in my truck.

3. He ran.

4. I got out of my truck.

5. Fucking coons (or if you prefer, fucking punks).

6. These assholes, they always get away.

7. Tell the officer (that was dispatched to the neighborhood) to call me on my cell phone when he gets here so that I can tell him where to find me.

8. I shot him (Trayvon Martin).

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Obama’s Vile Assassination Doctrine

March 7, 2012

President Obama’s assassination doctrine is a blatant violation of the Fifth Amendment and an insult to everyone who believes in due process of law, the rule of law, and the Constitution. No one is above the law, especially the President. That he would think and proclaim otherwise, says volumes about his arrogance and ignorance.

Attorney General Eric Holder delivered a speech at the Northwestern University School of Law purporting to justify the assassination doctrine as an acceptable form of non-judicial process that has never been reviewed, much less approved, by a court of law. Worse, the administration refuses to share and discuss the legal memorandum upon which Mr. Holder and Mr. Obama rely in claiming the assassination power.

As with everything else in this secretive administration, we are supposed to shut-up and trust them. I refuse to do so.

Support for the death penalty in this country has declined substantially due to the hundreds of innocent people wrongfully convicted and sentenced to death. Why would anyone think that the President should be trusted to get it right when he targets someone for assassination, if our criminal justice system and its vaunted trial by jury so often gets it wrong? What is to stop a president from targeting a political rival or a Reverend Martin Luther King, Jr. for assassination?

Nothing. The person is assassinated and we the people are never provided with an explanation. Absent a whistleblower, and we all know how much this president loves and welcomes whistleblowers, we would never know the president ordered the hit, much less why. Indeed, one might reasonably suppose that he or she would be next, if they asked too many questions.

I am truly disgusted and alarmed beyond words by this development. Under no circumstances will I vote for Barack Obama or any other candidate who supports his assassination doctrine.


Has Obama Decided To Start A War With Iran To Assure That He Wins The 2012 Election?

February 18, 2012

I write to warn everyone that President Obama likely intends to start a war with Iran before the November election even though two days ago,

(a) Secretary of Defense, Leon Panetta, admitted that Iran is enriching uranium for peaceful purposes and not attempting to develop a nuclear weapon; and

(b) Chief of the Defense Intelligence Agency, Lieutenant General Ronald Burgess, admitted that Iran is unlikely to start a war on its own.

Jason Ditz at antiwar.com reports today,

Officials say Obama has been telling Israel he wants to “give sufficient time” to the current round of sanctions before starting the war, though they say that in the end the result will start be a war because Iran is “behaving like sanctions don’t matter.”

Ditz further reports that,

Obama advisers are now calling September or October the “sweet spot.”

For additional information on what I believe to be Obama’s complete capitulation to corporate America’s lust for unfettered access to Iranian oil and his decision to act in “lockstep” with Israel, allowing Netanyahu to drag us into an aggressive, unnecessary and illegal war with Iran in order to assure that he defangs the eventual Republican nominee for president and wins the November election, please listen to this 24-minute interview of David Bromwich by Scott Horton at antiwar.com.

Also, please take a few minutes to read Bromwich’s article at the Huffington Post titled, Obama’s Drift Toward War In Iran.


The Real Estate Forfeiture Settlement Is A Mirage

February 11, 2012

In one of his articles yesterday at Firedoglake, David Dayen mentioned that the settlement agreement has not been reduced to writing.

That is astonishing.

Let me repeat. That. Is. Astonishing.

The biggest problem with settlement agreements in particular, and all agreements in general, is reaching a so-called ‘meeting of the minds’ regarding the details and ‘chiseling them into stone’ by reducing them to writing. As I used to warn my clients when I was practicing law, we do not have an agreement until it has been reduced to writing, thoroughly reviewed, and signed by each of the parties. That has obviously not happened in this case.

Experience has taught us that humans dealing in good faith make mistakes, no matter how careful they are, and the potential for mistakes, misunderstandings and subsequent disagreements about the terms of an agreement cannot be overestimated. That potential becomes a certainty when one or more parties to an agreement is dealing in bad faith.

That, my friends, is why we have a law called the Statute of Frauds, which requires that certain types of agreements be in writing or they are invalid and unenforceable.

For example, contracts regarding the sale of real estate must be in writing or they are invalid and unenforceable.

Given the absence of a written agreement and the vagueness regarding its terms, which is virtually incomprehensible to me, I cannot help but wonder if everyone involved in the settlement talks is being less than candid when they say an agreement was reached.

Obama would not be the first person to declare publicly that an agreement had been reached when, in fact, that was a false statement.

Why would he do that?

To pressure reluctant parties to settle. It is a variation on the old ploy, “I have scheduled a press conference in two hours at which I intend to announce that we have reached a global agreement that settles all claims in this case and provides desperately needed relief to homeowners. These discussions have gone on long enough. Agree to these terms now because they are not going to get better and if you do not, I will announce publicly that we would have had a deal except for you. Then you can explain to your constituents why there is no deal.”

Recall that he wanted to announce a global settlement during his SOTU address.

Why would the attorneys general agree?

A better question to ask would be how could they could not agree, given the severe financial limitations of state budgets these days and the practical impossibility of assembling and compensating a team of hundreds of dedicated professionals to work for many years investigating and prosecuting the numerous interstate and international crimes that have been committed. We are talking about millions of people who were defrauded during a period of close to twenty years and probably documents numbering in the hundreds of millions, if not billions. Imagine the resources that would be required to investigate and, figuratively speaking, get your arms around this vast coast-to-coast conspiracy that eventually went international in the form of exotic financial instruments of mass destruction that may yet still blow-up the world economy.

Practically speaking, only the Department of Justice has the capacity to investigate and prosecute the heinous crimes committed by the criminal banksters, and that has not and will not happen because Obama, Holder, and Breuer have decided not to do it.

This is why we have not seen a realistic and credible effort by any organization to thoroughly investigate this case. The little investigation we have seen by dedicated professionals working alone or in small groups has produced a few snapshots of wrongdoing in individual cases and resulted in a few lawsuits and indictments of low-hanging-fruit underlings, but that is all.

Having been involved in defending people in many complicated paper-intensive white collar racketeering and fraud cases, I do not believe the state attorneys general had the ponies they needed to ride in the race.Obama called their bluff and they caved.

I respect those who tried to do something, but I am not happy about their decision to not only acquiesce in approving of this apparent settlement agreement, but to try and sell it publicly. We are not stupid and we deserve to know the truth.

The truth is that Eric Holder, Lanny Breuer, and Barack Obama are corrupt and the proof is in the pudding, so to speak. The Department of Justice has refused to investigate and they casually brush aside all questions by saying no provable crimes were committed.

Come on, now. How in the hell could they know that, if they have not investigated the case? It is long past time to, figuratively speaking, slam them up against the wall, call bullshit, and hold them politically accountable for their lies. They insult our intelligence when they tell us that no provable crimes were committed.

I am an experienced trial lawyer with knowledge and experience defending people charged with white collar crimes and I know what it takes to prove a case. I am calling them on their bullshit.

I suspect Obama desperately needed two things: Money and a favorable settlement for the banks.

If you have been paying attention, you would know that Wall Street donations to Obama’s campaign for reelection have slowed to a trickle and he cannot win reelection without substantial financial support from the criminal banksters.

He needed to do something dramatic to open the spigot and restore the flow of their cash into his coffers.

He also needed to find a way to conceal their identities and how much they were giving so that we the people would not know that the money was a payoff for effectively cutting off bank liability for Forfeiture Gate.

What else has happened recently, aside from this ridiculous unwritten settlement agreement with a few numbers waved around that kind of sound impressive until one considers the vast scope of this criminal conspiracy?

Obama announced that he ‘regrettably’ must accept Super PAC money in order to compete with Romney, the presumptive Republican nominee for president. Super PACs are instruments of mass electoral corruption because there are no limits on the amount of money they can contribute and their donors can remain anonymous. That means the criminal banksters can anonymously pay him off with millions.

When I step back and look at this deal, I do not see an enforceable deal. I see the mirage of a deal. I do not believe anything has changed. The forfeitures relying on forged documents will continue. The states will get some bankster cost-of-doing-business bribe money to shut-up and few, if any, homeowners will ever see the ridiculous and insulting $1800 bribe.

And that, my friends, is yet another monstrous con.

Classic Obama extend and pretend.

And to the state attorneys general, I say: Tell us the truth and save your self-respect and professional reputations. Do not go down with this con.


The Deal

January 15, 2012

I am 64 years old. I have never been as disgusted with the political situation in the United States as I am now. On a scale from 1 to 10, I score all of the Republican candidates and Barack Obama at -1.

In other words, unfit and unqualified to serve.

Hell, I refuse to support Obama because I consider him to be a serial liar and a war criminal who supports indefinite detention, torture, and extrajudicial assassination. He’s flat out insane and dangerous. There is only one place he should be and it is not the White House. It is a prison cell.

The mind blowing fact about the campaigns of the various candidates is the absence of any acknowledgement and discussion of the important issues of these difficult times.

(1) Why empire?

(2) Why no civil liberties?

(3) Why are 2.3 million people locked up?

(4) Why haven’t all drugs been legalized?

(5) Why isn’t anything being done about unemployment?

(6) Why not single-payer health insurance for all?

(7) Why not free college and graduate education?

(8) Why forfeiture?

(9) Why no prosecutions of war criminals and criminal banksters?

(10) Why haven’t the TBTF banks been allowed to fail or taken over and broken up?

(11) Why the extreme and increasing disproportional distribution of income and what can be done to reverse it?

(12) Why oil?

(13) Why nuclear?

(14) Why coal?

(15) Why poverty?

These are some, but not all of the problems that beset us and I neither want to hear, nor will I listen to all these stupid jerk candidates babbling about bullshit.

Fortunately, OWS is starting to change the dialogue, and that gives me hope.

Which brings me to The Deal.

Listen to this tune by the Grateful Dead with OWS as The Deal.

OWS is The Deal.

The Deal

Source: The Annotated Grateful Dead Lyrics by David Dodd.

Words by Robert Hunter; music by Jerry Garcia
Copyright Ice Nine Publishing.

Since it cost a lot to win
and even more to lose
You and me bound to spend some time
wondring what to choose

Goes to show you don’t ever know
Watch each card you play
and play it slow
Wait until your deal come round
Don’t you let that deal go down

I been gambling here abouts
for ten good solid years
If I told you all that went down
it would burn off both your ears

It goes to show you don’t ever know
Watch each card you play
and play it slow
Wait until your deal come round
Don’t you let that deal go down

Since you poured the wine for me
and tightend up my shoes
I hate to leave you sittin there
composin lonesome blues

It goes to show you don’t ever know
Watch each card you play
and play it slow
Wait until your deal come round
Don’t you let that deal go down
Don’t you let that deal go down, no
Don’t you let your deal go down


Forensic Fraud (Part 2)

January 13, 2012

As I said yesterday in Part 1,

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

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

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

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

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

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

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

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

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

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

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

Could some other lab have performed the analysis?

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

Did that happen in Crane’s case?

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

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

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

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

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

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


Prosecutorial Legerdemain

December 26, 2011

The Bill of Particulars is a document, prepared and sworn to under oath by the prosecution (ie, The Commonwealth) and filed with the court. The bill discloses the evidence the prosecution intends to introduce at trial.

In Crane Station’s case, the Bill of Particulars also contained a plea offer: if she would plead guilty to all three of the pending charges, the prosecution would recommend a prison sentence of eight years (four years on the possession and four years on the tampering to be served consecutively or end to end, plus seven days for the no-drug/no-alcohol/no bad driving DUI).

We did not see this document until just before the trial, probably because Crane Station had made it clear to her attorney at the time, Will Kautz, that she would not plead guilty, regardless of any plea offer — even if it were an offer for a Caribbean vacation — so he did not show it to her, even though he had a duty to do so.

The bill contained a materially false misrepresentation, namely, that the prosecution had “no exculpatory evidence” under Brady vs Maryland (a United States Supreme Court case that requires the prosecution to disclose all exculpatory evidence to the defense), when, in fact, it had two exculpatory vitally important lab reports in its possession: (1) a Kentucky State Crime Lab report by Examiner Neil Vowels finding no alcohol in her blood sample and (2) a Kentucky State Crime Lab report by Laboratory Technician Ryan Johnson finding no drugs in her blood sample. The prosecutor who drafted and signed the bill on October 16, 2006, declaring under penalty of perjury that its contents were true is Christopher Hollowell, who is now a McCracken County District Court judge.

The first lab result, the one that the prosecution hid from the grand jury and Deputy Eddie McGuire lied about when he testified before the grand jury on July 28, 2006, was completed 14 days earlier and faxed to the prosecutor’s office on July 24, 2006, which was 4 days before the grand jury met. Note the fax stamp on the top of the page stating that the report was faxed on 7/24/2006 at 12:32 PM to FAX number 2708247029. This is the phone number of the prosecutor’s office

The exculpatory drug test result was dated and signed by Ryan Johnson September 25, 2006, which is almost a month before now Judge Hollowell signed the Bill of Particulars declaring under penalty of perjury that the prosecution did not have any exculpatory evidence. The bill was filed in the Clerk’s Office the next day on October 17, 2006.

Fortunately, Crane Station’s lawyer, Will Kautz, who knew that her blood sample had been sent to the crime lab for drug and alcohol analysis, kept demanding the lab results. The alcohol result was finally disclosed when we viewed the evidence in the evidence unit at the McCracken County Sheriff’s Department in late October or early November, but the drug result was withheld until the beginning of the suppression hearing on November 26, 2006.

We believe the prosecution deliberately withheld the exculpatory lab results from Crane Station and concealed the exculpatory alcohol report from the grand jury in an effort to mislead the grand jury in order to obtain an indictment and cause her to give up hope and plead guilty unaware of the results. We suspect but cannot prove that the prosecutor’s office routinely withholds exculpatory evidence hoping that depressed and dispirited defendants will give up and plead guilty. This shows what little regard the prosecution has for the accused, due process of law, the rule of law, the members of the grand jury whom they are misleading, and the important role of the grand jury to determine whether probable cause supports each charge in an indictment.

Consider that there is, in effect, no speedy trial rule in Kentucky and defendants who insist on a jury trial in McCracken County have to wait approximately 18 months before they go to trial. Bail bondsmen are prohibited in Kentucky. If defendants are unable to post bail, they have no choice but to rot in jail until trial. Pretrial detainees are not segregated from inmates serving sentences for misdemeanors and felonies. All are mixed together in general population in the McCracken County Jail. Frog Gravy gives you an honest unvarnished look at what that is like.

Given how prosecutors and police probably routinely ignore people’s constitutional rights, how can there be any surprise that innocent people plead guilty in McCracken County? Crane Station was fortunate to make bail, but I fear she is the exception rather than the rule.

Here are the photos:

Bill of Particulars

Bill of Particulars filed October 17, 2008 by Crane-Station on flickr.

False statement on sworn Bill of Particulars

The statement: “The Commonwealth has reviewed the material in this case and finds no material which is exculpatory under Brady vs Maryland.”

Sworn under oath

Sworn under oath and delivered.

Exculpatory evidence hidden

The hidden exculpatory lab result for alcohol (exculpatory under Brady)

Exculpatory evidence hidden

enlarged.

Exculpatory evidence hidden.

The hidden exculpatory blood test result for drugs.

Exculpatory drug test result

The hidden exculpatory drug test result (under Brady), enlarged.

These lab results have been published online in other posts as well.

Amazing coincidence that Crane-Station received an eight-year sentence after the jury trial.


The Full Text Reply Brief (Frog Gravy Legal Case)

December 25, 2011

I will also post the Commonwealth brief, sometime in the next couple of days. These documents are in the public domain.

PURPOSE OF THIS REPLY BRIEF

This Reply Brief responds to the Appellee’s Brief. Any failure to respond should not be taken as waiver of an issue or allegation.

I. The evidence should have been suppressed.

A. The 911 call.

The Appellee does not respond to Ms. Leatherman’s argument that the information in the 911 call was insufficient to establish a reasonable suspicion that she was committing a crime. Leatherman reiterates that the sum of what Deputy McGuire knew from the 911 dispatch: “a lady” was walking around in the caller’s neighbor’s yard and talked to him. TR 149. The caller did not say whether he had been present during that conversation. The caller did not tell the 911 operator that the person had seen heroin, any other drug or any sort of drug paraphernalia in the person’s car. The caller also did say that the woman appeared to be under the influence. McGuire testified that he had no idea when the woman had made contact with the neighbor. VR 4; 11/27/2006; 14:05:04.

B. Leatherman’s actions on US 60 did not provide reasonable suspicion.

The government makes the nonsensical argument because Ms. Leatherman initiated voluntary citizen-police contact; the Fourth Amendment does not apply in this situation. It then asserts “the only evidence in this case was that appellant pulled over on her own accord” and she “does not now dispute that finding.” Id. The government then argues that “other section of the revised statutes may be implicated by the improper signaling…” Id., at 6-7.

The government also claims that because Leatherman did not challenge the trial court’s first conclusion that McGuire did not initiate a stop, the finding must be accorded great weight. The government quotes from the trial court’s second suppression order that “the fact that the officer observed appellant signal a left turn and abruptly pull over to the right is reason to investigate and possibly cite for an improper turn.” Brief for Appellee, BA, at 6.

This Court need only look at the totality of circumstances in order to be shown that McGuire fully intended to pull Rachel Leatherman over at whatever point he found her. McGuire said, “I was going to [stop her], anyway [when he discovered himself overtaking her on US 60], yes. When she started to pull over, I just went ahead and turned my lights on.” VR 4; 11/27/2006; 14:07:28; emphasis added.

McGuire testified that he first checked the Queensway Drive neighborhood, hoping to see the dark blue Buick with the Washington plates. VR 4; 11/27/2006; 14:05:04. He wanted to stop her in that neighborhood if possible. He testified that as he drove toward Paducah and approached the traffic-light controlling the intersection of US 60 and Cairo Road, he suddenly realized he was passing a vehicle matching the description provided by 911.

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 that 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. VR 4; 11/27/2006; 14:07:28.

McGuire’s testimony leads to only one conclusion: McGuire intended to pull Rachel Leatherman over whether he had found her in the Queensway neighborhood, on US 60 or in Paducah. Moreover, McGuire found it unusual that the car was going slower than he was and that it had a constantly blinking turn signal. Id., 14:12:20. He also found suspicious the amount of time the turn signal flashed and the car stayed in the right lane without moving into the left. Once he overtook the car, McGuire said he then noticed a white female driving and a set of Washington state license tags. Id., 14:16:42.

After Deputy McGuire slowed and pulled in behind her car, the woman pulled over to the shoulder. McGuire thought that action was as suspicious as the woman driving in the right lane with her left turn signal blinking, so he activated his emergency lights. Id., 14:17:14.

In an attempt to bootstrap probable cause from whatever facts it can garner, the government argues that “both the wine and the beer are violations of KRS 198.530(2).” BA, at 9. At the preliminary hearing, McGuire testified that he had ruled out alcohol intoxication because the PBT had showed that she was not under the influence of alcohol. Transcript of Preliminary Hearing (hereinafter TPH) 8. At the suppression hearing, McGuire said his suspicions that Leatherman was impaired were the allegedly failed HGN test and glassy eyes and that Leatherman was “just very nervous.” VR 4; 11/27/2006; 14:20:36; 14:20:45. Shortly afterward, McGuire admitted that the HGN result by itself could not provide probable cause. Id.; 14:21:45.

Thus, McGuire was left with Leatherman’s “glassy eyes” and appearing “very nervous” as probable cause.
In Garcia v. Commonwealth, a Kentucky State Police Trooper noted Garcia’s “nervousness, lane change, failure to make eye contact, ‘death grip’ on the steering wheel, and out-of-state license plate” as what made up his reasonable suspicion to pull Garcia over. 185 S.W.3d 658 (Ky. 2006).

The Kentucky Supreme Court found such facts describe a substantial number of drivers on our highways and constitute an innocuous mirage created in an attempt to retrospectively justify the stop. If we were to accept the Commonwealth’s argument, ordinary law abiding citizens could be subjected to a stop by police based upon routine driving habits. Simply put, such routine driving habits do not warrant a police stop under Terry.

Id., 665. McGuire gave those facts in a retroactive attempt to justify the stop. He did not have reasonable suspicion or probable cause. Rachel Leatherman requests remand with instructions to suppress the evidence against her.

II. Scrimsher error

The government inexplicably argues that Ms. Leatherman did not have “standing to contest [Deputy McGuire’s] search of his own vehicle.” BA, at 9. The issue at hand has nothing to do with whether McGuire had the authority to search his own vehicle. Rather, the issue concerns the government’s motion in limine to prevent the defense from referring to statements Rachel Leatherman made after McGuire told her he found what looked like drugs next to her watch.

It is important also to review the changing nature of McGuire’s testimony before discussing this issue.
Deputy McGuire testified that as he assisted Ms. Leatherman out of the cruiser at Lourdes Hospital, he saw a baggie with what appeared to be a rock of cocaine lying underneath her watch in the seatbelt crack of the back seat. VR 2; 1/22/2008; 4:06:20. However, at the preliminary hearing, McGuire’s testimony was that the watch and baggie were not in plain view. In fact, he testified that he saw the baggie only when he moved the seat. TPH 11. At the suppression hearing, McGuire testified that the baggie and Ms. Leatherman’s watch were in plain view next to her in the back seat. VR 4; 11/27/2006; 14:25:55.

Interestingly, he also said Leatherman had told him before they went into the hospital that she had dropped her watch. Id., 14:28:15.

The government argues that “Appellant. . .does not show that a foundation was made to impeach the witness with his prior statement as to when and what he said, nor does appellant present a single instance where the court denied her the right to cross-examine the deputy on any of his prior statements nor even that an argument was made to the trial court in that regard.” BA, at 10.

Ms. Leatherman cites the following from her Brief for Appellant:

Despite the ruling, defense counsel attempted to cross-examine Deputy McGuire about the watch:

DC: How is it that you came to find the watch?

DM: Whenever she got out of the backseat, that’s when I found it.

DC: She actually asked you about the watch, didn’t she?

VR 2; 1/22/2008; 5:40:32. The government immediately objected. Defense counsel’s explanation that he did not believe the ruling applied to cross-examining McGuire regarding his direct examination answers fell upon deaf ears. The court sustained the objection. Id.

Brief for Appellant, at 16.

It is clear that defense counsel was attempting to lay a foundation to impeach McGuire when the government objected. It is clear that this is one instance where the trial court denied Leatherman’s right to cross-examine on those prior statements. It is also clear that any further argument would have been futile. The law does not require futile objections. Rachel Leatherman requests relief.

Respectfully submitted,

JULIA K. PEARSON


The Art of Cross Examination (Part 5) The Killer Cross That Never Happened

December 24, 2011

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

All rise. Court is again in session.

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

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

Counsel, you may proceed with your cross examination.

Thank you, your Honor.

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

A: No.

Transcript Suppression, page 24, lines 15-18

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

A: Yes.

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

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

A: No.

43. You told another lie, didn’t you?

A: Yes.

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

A: Yes.

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

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

A: Yes.

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

A: No, he didn’t.

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

A: 7/14/2006.

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

A: Yes.

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

A: Yes.

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

A: Yes.

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

A: Yes.

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

A: No.

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

A: No.

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

A: Yes.

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

A: Yes.

Link.

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

A: Yes.

in-dash video

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

A: Yes.

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

A: Yes.

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

A: Yes.

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

A: Yes.

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

A: No.

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

A: Yes.

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

A: Yes.

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

A: Yes.

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

A: Yes.

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

A: Yes.

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

A: Yes.

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

A: Correct.

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

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

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

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

A: Yes.

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

A: Yes.

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

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

A: No, I didn’t.

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

A: Yes.

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

A: Yes.

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

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

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

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

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

To be continued . . .


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