Ibragim Todashev may have been unarmed when killed by FBI agent

May 30, 2013

USA Today is reporting that 27-year-old Ibragim Todashev may have been unarmed when he was shot and killed by an FBI agent in Orlando on May 22nd.

Todashev’s father Abdul-Baki Todashev told the the Moscow media that his son had multiple gunshot wounds to his torso and one to the back of his head. The elder Todashev also displayed photos he claimed were of his son’s body in a Florida morgue, according to AP.

Ibragim Todashev was the ethnic Chechen whom the FBI were interrogating regarding his association with Tamerlan Tsarnaev, the late Boston Marathon bombing suspect. Todashev was also a suspect in a triple homicide in Massachusetts two years ago.

The early reports that I read said Todashev was shot because he pulled a knife on an FBI agent.

The USA Today story quotes unnamed sources that Todashev had overturned a table but was unarmed when shot.

The Florida branch of the Council on American-Islamic Relations has called for a federal civil rights investigation into Todashev’s death.

“We have confirmed through senior sources within the FBI that Ibragim was indeed unarmed when he was shot seven times in the head, what appear to be even in the back of the head,” said Hassan Shibly, executive director of the CAIR Florida. “That’s very disturbing.”


FBI arrests three suspects in Boston Marathon bombing case

May 2, 2013

Thursday, May 2, 2013

Three college friends of Dzhokhar Tsarnaev have been arrested and charged by complaint with federal felony offenses for their conduct after the bombing.

CBS News reported yesterday that,

Azamat Tazhayakov and Dias Kadyrbayev were charged with conspiring to obstruct justice by concealing and destroying evidence. A third man, Robel Phillipos, was charged with lying to investigators about the visit to Tsarnaev’s room.

Azamat Tazhayakov and Dias Kadyrbayev have been accused of going to Tsarnaev’s room on campus after the bombing and removing a laptop computer and a backpack containing fireworks from which the explosive gunpowder had been removed. One of the young men attempted to dispose of the backpack by throwing it in the garbage. FBI agents recovered it from a landfill. They also seized the laptop.

The three young men were in federal court yesterday for their initial appearances.

In a court appearance Wednesday afternoon, Tazhayakov and Kadyrbayev waived bail and agreed to voluntary detention. Their next hearing is scheduled for May 14.

CBS Boston reports that federal Magistrate Judge Marianne Bowler admonished Phillipos in court, telling him to pay attention and not look down during the proceeding.

After the hearing, attorneys for the three spoke to the press briefly.

Harlan Protass, Tazhayakov’s attorney, said his client “feels horrible and was shocked to hear that someone he knew at UMass-Darmouth was involved with the Boston Marathon bombing.”

“[Tazhayakov] has cooperated fully with authorities and looks foward to the truth coming out in the case,” Protass said.

Robert Stahl, Kadyrbayev’s attorney, insisted his client had nothing to do with the bombing and has been cooperating with investigators.

“Mr. Kadyrbayev did not know that those items [reportedly taken from Dzhokhar’s dorm room] were of any evidential value,” Stahl said.

Whether the three young men had any foreknowledge of the bombing and did anything to assist their friend remains to be seen. As I have previously said, complaints in federal felony offenses are used to provide a legal basis to hold people until a grand jury returns an indictment.

The hearing on May 14 will be a preliminary hearing to determine whether probable cause exists to support the charges in the complaint. Magistrate Judge Marianne Bowler will preside over the hearing. An FBI agent will testify for the government regarding the factual basis for probable cause and defense counsel will have an opportunity to cross examine the agent.

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Probable cause in arrests, initial appearances, informations, and grand jury indictments

April 27, 2013

Saturday, April 27, 2013

I write today to clear up some confusion that I may have caused regarding the purpose of an initial appearance in a federal criminal case. I think I caused the problem by failing to mention that all federal court felony prosecutions must be by grand jury indictment. I cover a lot of basic material that most people do not know about our criminal justice system. This information will help you understand why Dzhokhar Tsarnaev’s initial appearance happened on Monday. I also provide basic information about grand juries, including when and why they were created. Finally, you will have a more thorough understanding of probable cause and its role in our criminal justice system.

In tomorrow’s post I will look ahead to Tuesday’s hearing in the Zimmerman case and express some choice words to describe the new low in sleaziness achieved by Mark O’Mara.

Do not confuse an initial appearance with an arraignment. An initial appearance is a judicial review of a complaint and affidavit for probable cause to determine whether the affidavit actually establishes probable cause or reasonable grounds to believe the defendant committed the crime(s) charged in the complaint. The defendant does not enter a plea at the initial appearance for the simple reason that he cannot be arraigned unless he has been indicted by a grand jury.

The Fifth Amendment provides in pertinent part:

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;

Many states, including Florida, permit prosecution by information. The Zimmerman case is a good example. Florida permits felony prosecution by information except in capital cases, which must be prosecuted by grand jury indictment. Therefore, State Attorney Angela Corey could have prosecuted the defendant for second degree murder by grand jury indictment or by information. She opted to charge Zimmerman by information thereby avoiding the cumbersome and time consuming effort required to persuade a grand jury to indict him.

Prosecution by grand jury indictment originated in England in order to prevent the king from initiating bogus criminal prosecutions against political enemies for political reasons. Transferring the power to charge people with crimes from the king to a group of citizens was a remarkable accomplishment at the time and a very important step in the long evolutionary process from governance by an unchecked monarchy to governance by elected officials.

We live in a different world where grand juries have become little more than rubber stamps signing off on indictments proposed by prosecutors. This is not surprising since grand juries meet in secret without a judge to supervise the proceedings. Hearsay is permitted because the rules of evidence do not apply and the targets of their investigations are not present. The absence of judicial oversight and the exclusion of suspects and their lawyers from participation in the process permits prosecutors to rig the outcome.

A suspect cannot be arrested or charged with a crime unless there is probable cause (i.e., reasonable grounds) to believe he committed the crime.

In the case of an arrest, the police decide whether they have probable cause. However, police are not lawyers. They can and do make mistakes even when they are acting in good faith. Although prosecution by information transfers the power to charge a suspect with a crime from the police who arrested the suspect to a prosecutor, the test remains the same. The prosecutor must have probable cause to believe the suspect committed the crime. The same is true when the prosecution is by grand jury indictment only now the grand jury is making the decision instead of the prosecutor. Finally, in our legal system we have judicial review of police decisions to arrest and prosecutor’s decisions to charge suspects with crimes. The test is still probable cause but now a judge is making the decision.

Judges also review the issue of detention after police have arrested a suspect and booked him into a jail pending a decision to charge or release a suspect by a prosecutor or the grand jury. Judicial review of probable cause and detention in federal court takes place at the initial appearance.

An arraignment is a judicial hearing that occurs after a person has been charged, whether by information or grand jury indictment. The purpose of the arraignment is to formally notify the defendant that he has been charged with a crime(s) and to record his plea. In both federal and state courts, defendants are required to plead “not guilty.”

There is a good reason for this requirement. Arraignment calendars in state and federal courts are busy affairs. Judges cannot accept a guilty plea unless they are satisfied that the defendant knows what rights he is forfeiting by pleading guilty. The defendant also must provide a statement under oath regarding what he did that is legally sufficient to support the plea. Guilty pleas can take up to 15 or even 30 minutes to complete. Therefore, they are scheduled for a different time.

Magistrate judges in each federal district conduct the initial appearances and arraignments in federal court. Initial appearances are typically scheduled in the afternoon to allow sufficient lead time for federal law enforcement agents and prosecutors to prepare the formal charging document, which we call the complaint, and the supporting affidavit (i.e., sworn statement) for probable cause. The complaint and affidavit are filed in the clerk’s office at the United States Courthouse. In turn the clerk’s office notifies the federal public defender regarding the new arrest and that office assigns the case to a lawyer in the office.

The Pretrial Supervision section of the United States Probation Office also is notified about the new case and they assign it to one of their officers. Their job is to prepare a report for the magistrate judge regarding the defendant and to recommend whether he should be released pending the outcome of the case. They also recommend the conditions of the release.

The United States Marshal’s Office is responsible for transporting the person to court for the hearing.

If this process works smoothly, the defense attorney receives his copy of the complaint and affidavit for probable cause with sufficient time to review and discuss it with the defendant in the lockup at the courthouse before the hearing.

At the beginning of the hearing, counsel for the government and the defendant identify themselves for the record and the magistrate judge informs the defendant of the charge(s) against him in the complaint and the maximum sentence that could be imposed, if convicted. He also advises the defendant of the following rights:

1. Right to remain silent

2. Anything he says can be used against him

3. Right to be represented by the lawyer he chooses, if he can afford the fee and the lawyer files a notice of appearance confirming representation

4. Right to have the court appoint counsel to be paid at public expense, if he cannot afford counsel.

5. Right to be presumed innocent.

6. Right to a jury trial

Most defendants cannot afford counsel and for that reason the clerk’s office routinely assigns the case to the Federal Defender, unless retained counsel contacts the clerk’s office and confirms that he will represent the defendant.

In a multiple defendant case, each defendant is entitled to his own lawyer because acting in the best interests of one client often is not in the best interest of the other client. Assume, for example, that you are representing both defendants. Also assume that the prosecutor contacts you and offers a benefit to one client in exchange for a guilty plea and his agreement to testify against the other client. Congratulations! You now have a conflict of interest and have to withdraw from the case, if it would be in the best interests of the first client to advise him to accept the offer because you cannot advise him to do that without violating your duty to act in the best interests of your other client.

Since your conflict of interest would extend to your law partners, the law firm that employs you, or every other lawyer employed by the Federal Public Defender if you work for them, the district courts maintain a list of experienced and qualified lawyers in private practice who have agreed to accept appointments with financial compensation at the rates set by the court. This list is called the Criminal Justice Administration Panel or CJA Panel.

In multiple defendant cases, the clerk’s office appoints the Federal Public Defender to represent the first defendant. Additional defendants in the same case are each assigned to a CJA Panel attorney. I was a CJA Panel attorney in Seattle for 20 years, so I am familiar with the process.

The process I have described is the same in every federal district in the United States.

This process would have been followed in the Boston Marathon bombing case. Since the Federal Public Defender Office would have known that it would be formally appointed to represent Dzhokhar Tsarnaev on Monday, I am reasonably certain that they assembled a team over the weekend to work on the case. The team would have included at least one or two lawyers, an investigator, and possibly a mitigation specialist.

Subsequent news reports have confirmed that a defense team was assembled over the weekend.

I imagine the lawyer or lawyers attempted to meet with Dzhokhar Tsarnaev at the hospital over the weekend, but were denied access. Law enforcement officials can do that absent a request from the suspect in custody to meet with counsel. I doubt he made that request, if he were intubated, unconscious and unable to speak.

The Magistrate Judge also would have known that she would have to conduct an initial appearance for Dzhokhar Tsarnaev on Monday, assuming he survived until then.

I am relatively certain that arrangements were made on Monday morning to conduct the hearing in the hospital at the patient’s bedside with notification to all parties concerned.

I doubt defense counsel were permitted to meet with their client before the FBI’s interrogation team completed its work.

The Fifth Amendment issue is whether the defendant’s statements will be admissible against him, since he provided them during a custodial interrogation without advice and waiver of his rights per Miranda. The government will argue that the public emergency exception exempted it from having to Mirandize the defendant. The defense will argue that the exception has not been judicially approved and did not apply.

A closely related issue is whether the defendant’s statements were voluntary or coerced, given his medical and mental condition. Was he competent to answer questions?

The Sixth Amendment issue is whether he requested a lawyer at any time before or during the interrogation. We know he could not speak and the interrogation team would have known that. Was he denied pencil and paper at the team’s request before the interrogation? Did he scribble out a request that was ignored?

The remedy for a failure to Mirandize the defendant prior to a custodial interrogation is to exclude his statements from being admitted into evidence.

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Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work.

If you like this site, please consider making a secure donation via Paypal by clicking the yellow donation button in the upper right corner just below the search box.

Thank you,

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Police violated the Fourth Amendment in Watertown house to house searches

April 23, 2013

Tuesday, April 23, 2013

Good morning:

We begin today with a history lesson purchased in blood, sweat and tears:

William Pitt declared in Parliament in 1763,

“The poorest man may in his cottage bid defiance to all the force of the crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter, the rain may enter—but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement.”

The house to house searches by police without search warrants in Watertown violated the Fourth Amendment.

The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

With the exception of a few narrow and well-delineated exceptions that do not apply to the house to house general searches in Watertown, the Fourth Amendment prohibits police searches of residences without a search warrant issued by a neutral and detached magistrate upon reviewing a sworn affidavit and finding that it establishes probable cause to believe that the residence to be searched contains evidence of a particular crime. Both the residence to be searched and the evidence to be sought must be particularly described in the affidavit and the search warrant.

Consent to search is one exception; however, consent must be free and voluntary. Mere acquiescence to authority at the point of a gun is not valid consent.

When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.

When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion—albeit colorably lawful coercion. Where there is coercion there cannot be consent.

Bumper v. North Carolina, 391 U.S. 543, 548-550 (1968).

Exigent circumstances is another exception. For example, police can lawfully enter a residence without a search warrant, if they are in hot pursuit of a fleeing suspect for whom they have probable cause to arrest or to prevent the destruction of evidence. United States v. Santana, 427 U.S. 38 (1976).

In Santana for example,

Michael Gilletti, an undercover officer with the Philadelphia Narcotics Squad arranged a heroin “buy” with one Patricia McCafferty (from whom he had purchased narcotics before). McCafferty told him it would cost $115 “and we will go down to Mom Santana’s for the dope.”

Gilletti notified his superiors of the impending transaction, recorded the serial numbers of $110 (sic) in marked bills, and went to meet McCafferty at a prearranged location. She got in his car and directed him to drive to 2311 North Fifth Street, which, as she had previously informed him, was respondent Santana’s residence.

McCafferty took the money and went inside the house, stopping briefly to speak to respondent Alejandro who was sitting on the front steps. She came out shortly afterwards and got into the car. Gilletti asked for the heroin; she thereupon extracted from her bra several glassine envelopes containing a brownish-white powder and gave them to him.

Gilletti then stopped the car, displayed his badge, and placed McCafferty under arrest. He told her that the police were going back to 2311 North Fifth Street and that he wanted to know where the money was. She said, “Mom has the money.” At this point Sergeant Pruitt and other officers came up to the car. Gilletti showed them the envelope and said “Mom Santana has the money.” Gilletti then took McCafferty to the police station.

Pruitt and the others then drove approximately two blocks back to 2311 North Fifth Street. They saw Santana standing in the doorway of the house with a brown paper bag in her hand. They pulled up to within 15 feet of Santana and got out of their van, shouting “police,” and displaying their identification. As the officers approached, Santana retreated into the vestibule of her house.

The officers followed through the open door, catching her in the vestibule. As she tried to pull away, the bag tilted and “two bundles of glazed paper packets with a white powder” fell to the floor. Respondent Alejandro tried to make off with the dropped envelopes but was forcibly restrained. When Santana was told to empty her pockets she produced $135, $70 of which could be identified as Gilletti’s marked money. The white powder in the bag was later determined to be heroin.

Santana, at 39-41

Justice Rehnquist wrote the majority opinion upholding the warrantless arrest and seizure of heroin and money from Santana thereby reversing the Third Circuit Court Of Appeals decision. He said,

In United States v. Watson, 423 U. S. 411 (1976), we held that the warrantless arrest of an individual in a public place upon probable cause did not violate the Fourth Amendment. Thus the first question we must decide is whether, when the police first sought to arrest Santana, she was in a public place.

While it may be true that under the common law of property the threshold of one’s dwelling is “private,” as is the yard surrounding the house, it is nonetheless clear that under the cases interpreting the Fourth Amendment Santana was in a “public” place. She was not in an area where she had any expectation of privacy. “What a person knowingly exposes to the public, even in his own house or office, is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U. S. 347, 351 (1967). She was not merely visible to the public but was as exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house. Hester v. United States, 265 U. S. 57, 59 (1924). Thus, when the police, who concededly had probable cause to do so, sought to arrest her, they merely intended to perform a function which we have approved in Watson.

The only remaining question is whether her act of retreating into her house could thwart an otherwise proper arrest. We hold that it could not. In Warden v. Hayden, 387 U. S. 294 (1967), we recognized the right of police, who had probable cause to believe that an armed robber had entered a house a few minutes before, to make a warrantless entry to arrest the robber and to search for weapons. This case, involving a true “hot pursuit,” is clearly governed by Warden; the need to act quickly here is even greater than in that case while the intrusion is much less. The District Court was correct in concluding that “hot pursuit” means some sort of a chase, but it need not be an extended hue and cry “in and about [the] public streets.” The fact that the pursuit here ended almost as soon as it began did not render it any the less a “hot pursuit” sufficient to justify the warrantless entry into Santana’s house. Once Santana saw the police, there was likewise a realistic expectation that any delay would result in destruction of evidence. See Vale v. Louisiana, 399 U. S. 30, 35 (1970). Once she had been arrested the search, incident to that arrest, which produced the drugs and money was clearly justified. United States v. Robinson, 414 U. S. 218 (1973); Chimel v. California, 395 U. S. 752, 762-763 (1969).

We thus conclude that a suspect may not defeat an arrest which has been set in motion in a public place, and is therefore proper under Watson, by the expedient of escaping to a private place. The judgment of the Court of Appeals is

Reversed.

Santana, at 42-43

The police who conducted the Watertown house to house searches did not apply for search warrants. They did not have probable cause to search any of the houses they searched and they did not find the suspects or any evidence to be used against them. These were general searches which are specifically prohibited by the Fourth Amendment.

Dzhokhar Tsarnaev was ultimately found hiding in a boat outside the area that the police searched. He was discovered by the owner of the boat who promptly notified police. The boat was situated on a trailer parked in the owner’s driveway.

Either we are a nation of laws or we are not.

We cannot claim to be a nation of laws when we break our laws.

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Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work.

If you like this site, please consider making a secure donation via Paypal by clicking the yellow donation button in the upper right corner just below the search box.

Thank you,

Fred


Who killed Tamerlan Tsarnaev

April 22, 2013

Monday, April 22, 2013

I write today regarding whether Tamerlan Tsarnaev was killed while in police custody, naked, and handcuffed with his hands behind his back. I was not aware of this dispute until I got up this morning and reviewed last night’s comments to yesterday’s post about Dzhokhar Tsarnaev. As all of you probably know, police have identified the two brothers as the Boston Marathon bombers.

Tamerlan (26), now deceased, is the older brother; Dzhokhar (19) is the younger brother. Police arrested him Friday night. They are holding him in a hospital where he is being treated for a gunshot wound to the throat.

Apparently, police have started interrogating him without advising him of his Miranda rights to remain silent and to be represented by counsel, even though he is intubated, medicated and listed in serious condition. This is not a surprise since the Department of Justice announced over the weekend that the interrogation would commence without Miranda warnings pursuant to the public-safety exception to the Miranda rule. I have already explained why I believe that is a bad idea and will not revisit that issue in this post.

Now to the controversy.

Tamerlan was reportedly shot by police during a shootout in which Dzhokhar escaped in a vehicle after running over Tamerlan and dragging him 30 or 40 feet.

Dzhokhar was reportedly driving a vehicle that he and Tamerlan had carjacked.

There is a CNN video that shows a naked male with his hands cuffed behind his back being escorted to and seated in the back seat of a patrol vehicle. That man does not appear to have any injuries and he looks like Tamerlan.

The video was presented here together with a gruesome still photo of a corpse riddled with bullet holes and slashes to the torso. That photograph also looks like Tamerlan.

When viewed together I believe a viewer might reasonably conclude that Tamerlan is displayed in the video and still photograph. If that is true, then it would appear that the police may have murdered Tamerlan.

However, later reports this weekend indicate that the naked man being placed in the back seat of the patrol vehicle was the driver of the vehicle that Tamerlan and Dzhokhar carjacked. If that turns out to be true, then the story was false and should be disregarded.

I lack sufficient information to answer the question I posed in the title, but it’s certainly looking like the viral story is false.

However this turns out, I think it’s important for us to realize how easy it is to fool people with photos and videos. We should already have learned that lesson with the two cell phone photos of the defendant’s face and the back of his head that show injuries not readily apparent in photos taken at the station house a few hours later in decent lighting by a professional photographer with good equipment.

I will end this post with a request. Please do not embed gruesome images in comments. Instead, bracket the link and provide a warning so that viewers will have the opportunity to decide if they want to view the image, which they can do by copying the link and pasting it into their browser.

Carry on.

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Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work. If you like this site, please consider making a secure donation via Paypal by clicking the yellow donation button in the upper right corner just below the search box.

Thank you,

Fred

H/T to Ay2Z for embedding this video in the comments:

This video is safe to watch.

EDIT: Looks like the gruesome death photo is being systematically removed from the internet.


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