The Art of Cross Examination (Part 4) The Killer Cross That Never Happened

December 23, 2011

Author’s Note: This is a continuation of the Killer Cross. If you have not read the first part, please go here to read it, as it is important for the sake of continuity.

Notice that each question is a leading question. That is, the questioner, in this case the defense attorney, makes a statement and asks the witness, Deputy Eddie McGuire of the McCracken County Sheriff’s Department, to agree or disagree with it. With the exception of a few questions to which the answer is common knowledge or otherwise apparent, the statement in each question is a prior statement that the witness made in his report or a prior statement that he made under oath while testifying at the preliminary hearing, grand jury, or suppression hearing.

After the question that contains the witness’s prior statement, I provide an answer that confirms the prior statement that he made. Below the answer in italics, I provide the source for the statement.

For example, in the first question below (#25 in the sequence that started yesterday), Deputy McGuire testified at the preliminary hearing that he pulled Crane Station over because he thought she possibly had some heroin. If he had answered the question below with a “No,” the lawyer would have impeached him with his prior inconsistent statement under oath by following the formula that I presented in Part 2 of this series. Please review that procedure, if you have not read it or are uncertain about it.

As I have said previously, impeachment by prior inconsistent statement is one of the most powerful and effective tools to cross examine and destroy the credibility of a witness and your opponent’s case.

Unfortunately, Crane Station’s lawyer, Chris McNeill, refused to use this cross examination and he lost the case. However, in the strange manner that the universe works, his refusal ended up giving me this opportunity to educate all of you about something only a few of you know anything about, which is the art of cross examination.

In a subsequent post, I will discuss why I think he declined to use it.

I love teaching! and I hope you enjoy reading the Killer Cross that never happened.

All rise. Court is back in session. You may be seated.

25. Deputy McGuire, you pulled Mrs. Leatherman over because you thought she possibly had some heroin, correct?

A: Yes.

Transcript Preliminary Hearing, page 8, lines 14-15

26. Q: You have testified that you thought she possibly had some heroin on her because Mr. Wilkey called 911 and reported that she asked him if he knew where she could purchase some tar heroin, correct?

A: Yes.

Transcript Preliminary Hearing, page 7 lines 1-3

27. Q: That’s what you told the members of the grand jury on July 28, 2006, isn’t it?

A: Yes.

Transcript Grand Jury, page 1, lines 17-23

28. Q: The grand jury is a group of citizens who decide whether to indict a suspect whom a law enforcement officer, such as yourself, has arrested for a felony crime, right?

A: Yes.

29. Q: The grand jury decides whether there is probable cause, or reasonable grounds to believe that a suspect has committed a felony crime, correct?

A: Yes.

30. Q: You would agree with me that it is extremely important for a witness testifying before the grand jury to tell the truth, isn’t it?

A: Yes

31. Q: You promised to tell the truth, the whole truth, and nothing but the truth when you testified, didn’t you?

A: Yes.

32. And that is the same promise that you made to this court and this jury today, isn’t it?

A: Yes.

33. Q: Mr. Wilkey told the 911 operator that Mrs. Leatherman had a conversation with his neighbor in the neighbor’s yard in which she “mentioned something about tar heroin and all that stuff,” isn’t that correct?

A: Yes.

Transcript 911 Call, page 2, lines 8-9

34. Mr. Wilkey did not tell the 911 Operator that Mrs. Leatherman asked him if he knew where she could purchase some heroin, did he?

A: No he didn’t.

35. Q: And the 911 Dispatcher did not tell you that Mr. Wilkey had reported that Mrs. Leatherman had asked him if he knew where she could purchase some heroin, did he?

A: No, he didn’t.

Transcript of Dispatcher Tape, page 1. This transcript was first made available by the prosecution during the trial. I did not have it or include a reference to it in my proposed cross. Nevertheless, I included this question because I believed the dispatcher never would have said what the deputy claimed he said in view of what the 911 caller had said. I also knew we could request and obtain a copy of the dispatcher tape and transcribe it before the deputy testified. Both the 911 call and the 911 dispatch could have been played to complete the impeachment.

36. Q: Despite promising to tell the truth to the grand jury, you did not tell the truth when you told the grand jury that Mr. Wilkey called 911 and reported that she asked him where she could buy heroin, correct?

A: Yes.

37. Q: You also told the grand jury under oath that Mrs. Leatherman was “very unsteady on her feet,” when she got out of her vehicle after you stopped her, didn’t you?

A: Yes.

Transcript Grand Jury, page 3, lines 6-7

38. Q: That was a lie too, wasn’t it?

A: Yes.

39. Q: Lying under oath to a grand jury is a felony called perjury that is punishable by up to 5 years in prison, isn’t it?

A: Yes.

Author’s Note: If the deputy said he did not know that what he did was perjury, the lawyer could simply hand him the statute and have him read it out loud. I did not put this in the document that I prepared for Chris McNeill because any lawyer should know this.

This is called playing hardball. I designed this part of the cross to provoke the judge into interrupting and advising the deputy of his Fifth Amendment right to remain silent and refuse to answer on the ground that his answer might have incriminated him. An honest judge also would have offered to recess the trial long enough for the deputy to consult with a lawyer and decide whether to continue answering questions.

At this point, an honorable prosecutor would have, in effect, tossed a white handkerchief over counsel table into the middle of the courtroom as a symbolic gesture of surrender.

None of this happened, however, because Chris McNeill refused to do the cross because, as he put it, “the deputy was a nice young man and the jury would have been offended,” if he used my proposed cross examination.

But, let us continue. Now that we have established that the deputy is a perjurer, let’s take him all the way down. Until tomorrow, Court will be in recess.

To be continued . . .

Cross posted from my law blog.


The Art of Cross Examination (Part 3): The Killer Cross That Never Happened

December 22, 2011

Author’s Note: I have reproduced below the cross examination that I prepared for Crane-Station’s public defender, Chris McNeill. He told me that he decided not to use it because the jury “would be offended.” He said the deputy was “young and innocent and just doing his job.” I will leave it to you to decide if that explanation is credible and reasonable.

Keep in mind, as you read this proposed cross examination, that Rule 3.130(1.1) of the Kentucky Rules of Professional Conduct provides:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Rule 1.130(1.3) of the Kentucky Rules of Professional Conduct provides:

(1) A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and
dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the
means by which a matter should be pursued. See Rule 1.2. The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.

When a defense lawyer impeaches a critical prosecution witness with a prior inconsistent statement, he can take the soft approach and argue that the prosecution failed to prove its case beyond a reasonable doubt because its witness is not credible.

He can say, for example, “I don’t know whether the witness lied to you under oath or innocently forgot, but there is absolutely no question that his inconsistencies and contradictions add up to a reasonable doubt.”

The hard approach would be to use the dreaded ‘L’ word and argue that there is a reasonable doubt because the deputy is a liar. This approach, particularly when it involves attacking the police, can anger a jury and backfire unless the inconsistencies were egregious.

I have tried it both ways successfully. I opted for the hard approach in my proposed cross, but it easily could have been adapted to the soft approach.

When McNeill made the comment to me about the deputy being young and innocent, I assumed he meant that he would opt for the soft approach. I did not consider the possibility that he was opting for no approach.

When I began to type the proposed cross to reproduce it here, I discovered that it is much too long to enter in one post, so I am going to present it in a series of posts. Each post will deal with a separate topic or set of topics. This post will cover what the deputy witnessed prior to the investigatory stop.

The cross examination is organized in a question-answer format. A reference to the document or transcript containing the deputy’s previous statement is incorporated in a leading question asking for a ‘yes’ or ‘no’ answer with the source of the statement provided below the answer. If the deputy were to give an answer that was inconsistent with his previous statement in the document or transcript, the lawyer would then proceed to impeach him with that statement. I illustrated how to do that in Part 2.

I hope you enjoy the Killer Cross.

1. Q: Whenever you are considering whether to charge a suspect with DUI, you document everything you observe that would be consistent with drug or alcohol impairment, isn’t that correct?

A: Yes.

Source: Transcript Suppression lines 2-6, page 19

2. Q: Staggering or stumbling would be signs of alcohol or drug intoxication, right?

A: Yes.

Q: You did not document any staggering or stumbling in your report, did you?

A: No.

Transcript Suppression, lines 14-17, page 17

3. Q: In fact, you previously testified under oath in this case that Mrs. Leatherman had no problem getting out of her car, didn’t you?

A: Yes.

Transcript Suppression, lines 11-13, page 17.

4. Q: Difficulty producing identification and proof of insurance are signs of alcohol or drug intoxication, aren’t they?

A: Yes.

Q: You did not document in your report in the Uniform Citation that you filled out the night that you arrested her that she had any difficulty producing her identification and proof of insurance, when you asked her to produce them, did you?

A: No.

Uniform Citation

5. Q: In fact, you previously testified under oath in this case that she had no problem producing her identification and proof of insurance, didn’t you?

A: Yes.

Transcript Suppression, lines 18-22, page 15.

6. Q: You did not document that she had any difficulty speaking, did you?

A: No.

Uniform Citation

7. Q: At no time during your encounter with Mrs. Leatherman did she exhibit slurred speech, did she?

A: No.

Q: Slurred speech is another sign of alcohol or drug intoxication, isn’t it?

A: Yes

Transcript Suppression, lines 18-19, page 17.

8. Q: You did not document in your report that Mrs. Leatherman exhibited any sign of mental confusion or disorientation, did you?

A: No.

Uniform Citation

9. Q: In fact, you did not notice any signs of mental confusion or disorientation, did you?

A: No.

Uniform Citation

10. Q: Mental confusion or disorientation is another sign of alcohol or drug intoxication, isn’t it?

A: Yes.

11. Q: An odor of alcohol is another sign of intoxication, isn’t it?

A: Yes.

12. Q: You did not document in your report that you noticed an odor of alcohol emanating from Mrs. Leatherman, did you?

A: No.

13. But you did document that she passed the portable breath test (PBT) ruling out alcohol intoxication at the roadside after you stopped her, didn’t you?

A: Yes.

14. Q: Yet, two weeks later when you testified before the grand jury in this matter, you told them that she stumbled getting out of her car, was very unsteady on her feet, and was smelling of alcohol, didn’t you?

A: Yes

Transcript Grand Jury

15. Q: Inattentive driving is another sign of drug or alcohol intoxication, isn’t it?

A: Yes.

16. Q: You have previously testified under oath in Mrs. Leatherman’s case that you first noticed that her left turn signal was blinking as you passed her, isn’t that correct?

A: Yes.

Transcript Suppression, lines 4-6, page 5.

17. Q: Both of you were approaching the Cairo Road intersection, weren’t you?

A: Yes.

18. Q: The Cairo Road intersection is a traffic light controlled intersection where motorists can turn left or right, isn’t it?

A: Yes.

19. Q: If Mrs. Leatherman had moved into the left lane as you started to pass her, she would have collided with your vehicle, wouldn’t she?

A: Yes.

Transcript Suppression, lines 21-25, page 12.

20. Q: The fact that she did not move into the left lane and collide with your vehicle indicates that she was attentive, doesn’t it?

A: Yes.

Transcript Suppression, lines 21-25, page 12

21. Q: You slowed down and fell in directly behind her as soon as you realized that her vehicle, Washington plates, and the blonde hair matched the description provided by the 911 caller, didn’t you?

A: Yes.

Uniform Citation, Transcript Grand Jury, Suppression Transcript

22. Q: As soon as you fell in behind her, she activated her right-turn signal, moved over onto the shoulder of the road, and slowed down to a stop, correct?

A: Yes.

Transcript Suppression, lines 3-5, page 15.

23. Q: That would be another example of attentive rather than inattentive driving, wouldn’t it?

A: Yes.

24. Q: In conclusion, she was driving appropriately, she wasn’t weaving, and her speed wasn’t a factor when you decided to pull her over, isn’t that correct?

A: Yes.

To be continued . . .


The Art of Cross Examination (Part 2): Impeachment By Prior Inconsistent Statement

December 21, 2011

Please watch the attached clip from Witness For The Prosecution (1957), starring the incomparable Charles Laughton, Marlene Dietrich, and Tyrone Power. Billy Wilder directed the film and wrote the screenplay from a novel by Agatha Christie.

Now back to the real world.

Here is an example of how to effectively impeach a witness with a prior inconsistent statement. This is one of the most effective ways to cross examine a witness. More than once, I have demolished an opponent’s case using this method. It is relative easy to do after you have assembled all of a witnesses’s prior statements, sorted them by topic, and prepared your cross examination. As usual, there is no substitute for hard work and preparation. The end product in court is extremely dramatic, deeply humiliating and disorienting to the dishonest witness, frightening to opposing counsel, and immensely satisfying to the lawyer who pulls it off.

Author’s Note: I never got a witness to say, “Damn you. Damn you,” but I did get a witness to say, “As God is my witness, I am telling the truth,” which is almost as good. She was not as beautiful, elegant, and aristocratic as Marlene Dietrich, but hey, nobody is.

Here, I illustrate the method by using the first question of a lengthy proposed cross examination of Deputy Eddie McGuire of the McCracken County Sheriff’s Department. He arrested Crane-Station and I have previously mentioned him in several posts relative to her case.

I prepared the cross examination for Chris McNeill, the lawyer who represented Crane-Station and I delivered it to him in person the week before the trial. I respectfully asked him to please consider using it.

I said, “I respect you. I am not trying to tell you how to do your job. I love my wife and I am just trying to help out any way that I can. This is one area where I can help because I have a lot of experience in these matters. Please review it and consider using it, or some of it, as you deem appropriate.”

He never used any of it.

He later told me that the deputy was a nice young man and the jury would have been offended, if he used my proposed cross examination. I will leave it for you to decide whether that makes any sense.

Each proposed question is followed by the correct answer with a reference below the answer to the document or transcript in which the deputy made the original statement.

If the deputy gave the wrong answer to any question, the proper way to impeach him would have been to direct his attention to the source document or transcript and confront him with his prior inconsistent statement.

In tomorrow’s post, I will present the entire cross examination that did not happen. It is an engaging and easy-to-follow-story that I believe you will enjoy.

In today’s post, I will present the first question, answer, and reference to the source in order to illustrate how to effectively cross examine a witness by impeaching the witness with a prior inconsistent statement. The procedure is formulaic and would be repeated whenever the deputy gave an answer that was inconsistent with an earlier statement.

Okay, students. With that introduction, let us begin.

Q: Deputy McGuire, whenever you are considering whether to charge a suspect with DUI, you document everything you observe that would be consistent with drug or alcohol impairment, isn’t that correct?

A: Yes.

The proper answer is “yes” because that is the answer that he gave under oath at the suppression hearing. Now, let us suppose that he answered, “No.” This is how you impeach him with his prior inconsistent statement.

May I approach the witness, your Honor?

You may.

You now approach the witness and hand him a copy of the transcript of the suppression hearing that you will use to impeach him and you also hand two copies to the clerk. One is for the court file and the other is a courtesy copy for the judge. On your way back to the podium, you hand the prosecutor a courtesy copy. Resuming your position at the podium, you proceed as follows:

Q: Deputy McGuire, please take a moment to review the document that I just handed to you and let me know when you are ready to answer some questions about it.

A: Okay, I’m ready.

Q: What is the document you are holding, which Madame Clerk has marked as Defendant’s Exhibit 1?

A: It looks like a transcript of the suppression hearing in this case.

Q: Did you testify at that hearing?

A: Yes, I did.

Q: Did you swear to tell the truth, the whole truth, and nothing but the truth, before you testified?

A: Yes.

Q: Did you tell the truth?

A: Of course I did.

Q: Does that document appear to be a true and correct copy of your testimony at the suppression hearing?

A: Appears to be.

Q: Please answer the question “Yes” or “No.” Take all the time you need.

A: Yes, it’s correct.

Q: Thank you. Your Honor, I move Defendant’s Exhibit 1 into evidence for illustrative purposes.

This is the proper way to identify and authenticate an exhibit prior to moving it into evidence. Judges and lawyers call it “laying the foundation.”

Notice how the lawyer firmly, but respectfully refuses to accept the equivocal answer. This is how a lawyer asserts control over a waffling witness.

Exhibits admitted into evidence for illustrative purposes become a part of the official record of the case. They can be used by counsel to illustrate a point, but they do not go into the jury room with the rest of the exhibits during deliberations.

Should a question come up during deliberations, the foreperson can send out a note asking to see a particular exhibit that was admitted for illustrative purposes. If the judge grants the request after conferring with counsel, court will reconvene with counsel and the defendant present. The jury returns to the box and the Clerk shows the exhibit to the jury. The jury then returns to the jury room to continue deliberations and the judge declares a recess pending further notice from the jury that it has another question, or it has reached a verdict.

No talking is permitted while the jury views the exhibit. If the jurors have any questions about the exhibit after viewing it, the foreman has to submit the question(s) in writing after the jury returns to the jury room.

Judge: Mr. Prosecutor, do you have any objection to admitting the exhibit for illustrative purposes?

Prosecutor: No objection, your Honor.

Judge: Very well. Defendant’s Exhibit 1 is admitted for illustrative purposes.

Q: Deputy McGuire, directing your attention to page 19, lines 2-6 of the transcript of the suppression hearing on November 26, 2006, were you asked the following question by defense counsel and did you give the following answer under oath?

Question by defense counsel:

“So, pretty much it’s your practice, if considering DUI, is to document all of those things that would be consistent with drug or alcohol impairment?”

You answered: “Yes.”

A: Uhm, well, Yes, I guess I did.

Q: You answered “Yes,” didn’t you?

A: Yes.

Q: Thank you.

When faced with an equivocating witness, and cops and experts do like to equivocate at times, I often used the technique, which I illustrated here, of repeating the question until the witness answered it. Defensive prosecutors often rise to the bait and attempt to defend their witness by objecting on the basis that the question was “asked and answered.”

I would respond to the objection by stating, “The witness is being evasive. The question calls for a simple “yes,” or “no,” and I intend to keep asking it until he answers it.”

Usually, the judge would turn to the witness and ask him, if he could answer the question “yes,” or “no.” Every time I used this technique and got the judge to intercede, the witness answered “Yes.” Then the judge overruled the prosecutor’s improper objection and allowed me to continue and cement the answer in the jury’s collective memory accompanied by the impression that the cop or the expert was attempting to hide something and the prosecutor was attempting to assist the witness to do it.

Sharp and experienced trial lawyers can devastate their opponent’s case by impeaching their witnesses with prior inconsistent statements.

Until tomorrow then . . .


The Obamanable President: UPDATED

December 15, 2011

Even though he said he would veto it, President Obama has announced that he will sign the National Defense Authorization Bill that gives him and the military the authority to indefinitely detain U.S. citizens suspected of supporting terrorist activity. I am not surprised because Obama lies all the time about everything and he already claims to have the power to order any person in the world assassinated, no matter where situated and whether or not a U.S. citizen, if he decides that person is a terrorist or has provided material support for terrorism.

The Fifth Amendment to the United States Constitution provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Emphasis supplied.

Nothing explicit or implicit in the Fifth Amendment creates or justifies an exception to the Due Process Clause that I italicized, and if you carefully listen with your heart, you can almost hear our Founding Fathers shouting, “NO.”

Using post-conviction DNA testing, the Innocence Project, which was formed by Barry Scheck and Peter Neufeld at the Benjamin Cardozo School of Law in New York City approximately 20 years ago, has exonerated 282 innocent people who were wrongfully convicted of crimes. 17 people were on death row awaiting execution when they were exonerated.

“The Disturbing Case of Eddie Lowery” will be shown tomorrow night (Friday, December 16th) on MSNBC at 10 PM. He is one of those 282 innocent people. Mr. Lowery falsely confessed to a rape he did not commit and spent 10 years in prison before he was exonerated. You can visit the website for the Innocence Project and watch a preview of tomorrow night’s show here.

The Death Penalty Information Center issued a report today entitled, “The Death Penalty in 2011: Year End Report, which you can read here.

The Center reports that, while 1277 people sentenced to death since 1976 in the U.S. have been executed, 139 people sentenced to death have been exonerated (this number includes the 17 people exonerated by post-conviction DNA testing). That is more than 10% of the number of people executed.

The high number of post-conviction exonerations does not inspire confidence in the ability of the criminal-justice system to only convict the guilty and always acquit the innocent, despite due process of law.

Researchers have identified seven causes of wrongful convictions. They are:

1. Mistaken eyewitness testimony;

2. Police misconduct;

3. Prosecutorial misconduct;

4. Forensic fraud;

5. Ineffective assistance of counsel;

6. False confessions; and

7. Jailhouse informants.

To the extent we have information about the people detained at Guantanamo, approximately 80 to 90% are innocent. Most of the people detained by the U.S. military there and other places were identified by paid informants as terrorists and many of them confessed while being tortured.

There is no evidence-based reason to believe that the military is any better at only convicting the guilty and always acquitting the innocent than the civilian criminal-justice system. In fact, given the kangaroo-court-style military tribunal process, there is good reason to believe that there is a much higher probability of wrongful convictions by military tribunals.

Despite all of the well-documented examples of the wrongful conviction of innocent people accorded due process of law in civilian courts and the identification of the causes of those wrongful convictions, President Obama apparently would have us believe that he and his review panel would never make a mistake and order the assassination of an innocent person.

And now the U.S. Congress has granted him the authority to order U.S. citizens, whom he suspects of providing material support to terrorists, detained indefinitely by the U.S. military without access to lawyers and the civilian courts.

This is an egregious and unpardonable sin against the U.S. Constitution, Bill of Rights, Rule of Law, and we the people of the United States.

Given the secretive manner in which senators Carl Levin (D) and John McCain (R) cooked-up this law behind closed doors without conducting any hearings or calling any witnesses, I cannot help but believe that this law was enacted with the OWS protests in mind.

Everyone who participated in drafting, supporting, and enacting this horrific law is unfit to serve in government. They should be immediately removed from office and forever barred from serving in public office in the future in any capacity.

Let December 15, 2011 forever be known as America’s National Day of Shame.

Cross posted from my law blog.


Survival of the Wisest

December 12, 2011

Empathy is the basis for true morality.

Empathy is the basis for true morality
by aerie under flickr Creative Commons

Randian neoliberals, as in Ayn Rand, believe in competition and social darwinism. They claim that human life is like a vast jungle and they have adopted “survival of the fittest,” formerly known as the law of the jungle, as the guiding principle of their lives.

They adopted Grover Nordquist’s advice to privatize government as much as possible and drown what little remains of it “in a bathtub” abolishing all laws, regulations, and regulatory oversight.

They claim they want to create the free marketplace that Adam Smith wrote about in the Wealth of Nations; a mystical place controlled by the “invisible hand” of self-interest that they declare to be maximizing short-term profits.

They have elevated greed to the status of not just any god, but the god of gods. That their interpretation ignores Adam Smith’s warning that the marketplace must be regulated to protect competition from the monopolies that inevitably will develop in a truly free marketplace is no trivial matter.

They have committed an egregious sin by creating a philosophy to justify stealing from others that they put together with disparate elements of philosophy, science, economics, and religion as though selecting from different columns on a Chinese menu to feed their ravenous greed.

Survival of the fittest is not a law; it is a description of what happens when a hungry apex predator hunts, kills, and consumes its prey. If there were no other laws at work after approximately 4 billion years of evolution, only apex predators would exist, and possibly none of them either as they would have extinguished themselves by cannibalism.

Natural selection is an evolutionary process that weeds out unsuccessful genetic adaptations. Natural selection is not survival of the fittest.

In a recent study published in the peer-reviewed journal Science, research scientists at the University of Chicago reported that lab rats can show empathy. Their experiment demonstrated that free rats will work tirelessly to free caged rats. Even when presented with chocolate chips, a free rat will continue to labor on freeing the caged rat until successful. Then they share and consume the chocolate.

While survival of the fittest may dictate the outcome in most battles between a hungry predator and its prey, unless its prey outsmarts it or it is fortunate to escape, empathy occupies a far more important role in determining whether a species survives. Empathy leads to survival of the wisest and validates the age old maxim that the meek shall inherit the Earth.

Empathy is the basis of the Golden Rule.

Randian neoliberalism is junk science at its worst and should be universally discredited and the legacy of its practitioners condemned to a mere footnote in the sorry history of human greed.

Happy holidays.

Namaste


The Curious Case of the Three Suppression Orders (Part 2)

December 8, 2011

Author’s note: In case y’all missed it or want to refresh your recollection, Part 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.


Sycophant King

November 21, 2011

Occupy Mordor
by Jamison Wieser on flickr Creative Commons
h/t to Crane-Station to save my marriage 🙂

Sycophant King

He favors tailored navy blue suits that look exactly the same

And white shirts decorated with solid silk ties

Perfectly pinched below the Gordian knot

That binds him to the land of Mordor where the shadows lie.

He majored in deception and has picked many a pocket clean

Wearing his practiced smile of starched white teeth

Flashing like a strobe in an after hours club.

He reached the top the old fashioned way —

Kissing ass

Taking credit for other people’s ideas

Daggering them in the back with whispers made of lies.

No one knows what he really thinks and neither does he

Because he thinks like the people he seeks to please.

Now that he’s reached the top there is nothing left to steal

No one with whom to share a thought

Only angry ghosts seeking revenge.

Who shall shed a tear

For the sycophant king?

Cross posted at my regular blog, Firedoglake/MyFDL, and the Smirking Chimp.