Abolish grand juries and independently prosecute by information the cops who kill

December 5, 2014

Friday, December 5, 2014

Good afternoon:

Time to get rid of the grand jury (See ham sandwich, indictment of)* and demand governors appoint independent prosecutors to prosecute killer cops.

I despise secrecy, especially secret meetings attended by people who discuss and decide matters that affect others without their knowledge or consent. Democracy requires transparency. It cannot function when decisions are made in secret and carried out without the knowledge and consent of the governed. Similarly, our courts must be open to the public so that the people that it serves can observe and decide whether justice is being dispensed. Indeed, the Sixth Amendment, which is applicable to the states through the Due Process Clause of the Fourteenth Amendment guarantees an accused a right to a public trial and the First Amendment protects the public’s right to know what its government and its courts are doing.

A star chamber proceeding has no place in a democratic society; yet, that is what a grand jury does. It meets in secret and decides whether to charge people with crimes. The identities of its members are kept secret as are the identities of the witnesses and their testimony before it.

Why do we have this deplorable practice?

We need to return to not so merry old England during the 11th century when the king was all powerful and able to stifle political dissent and steal valuable lands that he wanted by accusing, imprisoning, prosecuting, convicting and killing people for crimes they had not committed. To prevent him from abusing the criminal law to satisfy his lust for wealth and power, the aristocracy of the day took away his power to decide whom to charge. Hence, the grand jury was created to make that decision and the king had to convince its members that there was a legitimate reason to accuse someone of a crime.

We live in far different times and while there remains a legitimate concern that the criminal laws will be abused to punish and silence those who dissent (fill in the names of any whistleblowers here), we do have a process to review criminal charges for legitimacy. It’s called a probable cause hearing.

What is probable cause, you ask?

The Supreme Court of the United States (SCOTUS) defined probable cause in Brinegar v. United States, 338 U.S. 160 (1949) as follows:

where the facts and circumstances within the officers’ knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.

The sole function of a grand jury today is to decide whether there is probable cause to believe that a person committed the crime charged. A prosecutor typically decides whom to charge and what crime to charge. Armed with a proposed indictment and accompanied by the police detective who ran the investigation or the officer who arrested the suspect or target of the grand jury ‘investigation,’ the prosecutor puts the detective or cop on the stand and has him or her summarize the evidence against the target. Then the grand jury votes on whether there is probable cause. Depending on the size of the grand jury, at least 9 out of 12 or 12 out of 23 ‘yes’ votes are needed to return an indictment or true bill. Otherwise, it’s a no bill.

Many states have abolished the grand jury because it’s a pain-in-the-you-know-what to deal with. Instead, a prosecutor will review a case-investigation file for probable cause, and if it’s there, file an information charging the defendant with a crime or crimes. To satisfy the probable-cause requirement they have the detective or cop who arrested the defendant sign a statement under oath setting forth the evidence in the case. The affidavit is attached to the information and submitted to a judge to review for probable cause. If the judge finds probable cause, he or she signs an order to that effect. Then the information, affidavit for probable cause and order finding probable cause are filed.

Washington State where I practiced law for 30 years uses this process instead of the cumbersome grand jury.

Florida, Missouri and New York use both procedures. In Florida, for example, Angela Corey charged George Zimmerman by information with murder 2 and Michael Dunn with murder 1 by grand jury indictment (Florida requires murder 1 prosecutions to be by grand jury indictment).

Why did the prosecutors in Missouri and New York choose the cumbersome grand jury process instead of charging by information?

The simple answer in two words is ‘political cover.’

State prosecutors, who are elected by the voters, work closely with the police. They see themselves as partners with police in fighting crime. The last thing they want to do is to prosecute a police officer for killing someone. Not only is that like prosecuting a member of your own family for murder, it’s a great way to destroy a working relationship with police officers and lose the next election. In other words, they have a conflict of interest and it’s way too easy to succumb to temptation and use the secret grand jury to avoid charging and prosecuting a police officer.

State prosecutors who work with grand juries know how to get them to do their bidding. There are all sorts of ways. For example, in the Michael Brown shooting case, prosecutor Kathy Alizadeh went so far as to gently lead Officer Darren Wilson through 4 hours of testimony without ever challenging him on anything he said and she provided the grand jury with a statute favorable to him that the SCOTUS declared unconstitutional in 1985. The only witnesses challenged were the eyewitnesses who said Michael Brown had his hands up. As I warned long ago before the grand jury began hearing witnesses, the process was rigged and the outcome never in doubt.

The same is true in the Eric Garner case, except we are not going to see the prosecutor’s fingerprints at the scene of the crime because he is not going to release any evidence, except maybe the cop’s testimony, because he is going to play I’ve got a secret.

We are seeing an epidemic of cops killing unarmed civilians. There was another one in Phoenix last night.

White, brown or black, male or female, adult or child, we the people are being terrorized by militarized cops and state prosecutors are using secret grand juries to protect the killer cops and escape the political consequences for their wrongdoing.

We need to eliminate their political cover by getting rid of the grand jury and then we need to demand governors to appoint independent prosecutors to prosecute these cases.

Failure to do so will eventually lead to the people taking the law into their own hands and that is a result we must avoid.

*Charlie Pierce at Esquire Magazine came up with this expression.


Grand Jury Testimony Unlikely To Be Released in Michael Brown Shooting

November 24, 2014

Monday, November 24, 2014

Good morning:

Prosecuting Attorney Bob Culloch has publicly stated that a transcript of the proceedings before the grand jury investigating the Michael Brown shooting will be released, if the grand jury decides not to indict Officer Darren Wilson.

Jason Sickles at Yahoo reports,

For three months, prosecuting attorney Robert McCulloch has said he would seek a rare court order from Judge Carolyn Whittington immediately releasing nearly all evidence should Ferguson Police Officer Darren Wilson not be charged. Grand jury proceedings usually remain secret.

“We’ve asked the judge to do that, and the judge has agreed that she will do that, if there is no indictment,” McCulloch said during a radio interview with KTRS in September. “There’s no probably about it, it will be released.”

On Sunday, however, the court said, “Judge Whittington has entered no such order and has made no such agreement,” according to director of judicial admnistration Paul Fox.

I do not believe Judge Whittington will order the evidence released.

Grand jury proceedings are secret in order to protect witnesses from potential public criticism, condemnation and retaliation. Not even their identities can be disclosed, much less their testimony, especially in an extremely controversial case like this one where threats to kill have been uttered and public officials are preparing for a war to break out. The situation is so tense that Governor Nixon has preemptively declared a state of emergency and called out the National Guard.

Under these circumstances, where public disclosure of witness identities and testimony could be a death sentence, I cannot imagine that a judge would lift the veil of secrecy. I certainly would not risk people’s lives to provide political cover for McCulloch’s decision to try Wilson in secret.

There is only one way to handle this case properly and that is to charge Wilson with murder and accord him a public trial with due process of law.

To be clear, I have never believed McCulloch was operating in good faith.

Since August 9th when Darren Wilson killed an unarmed Michael Brown at noon on a quiet residential street in Ferguson before witnesses who described an execution, he has been working diligently to protect Wilson by shepherding him through a secret grand jury investigation.

I believe he knew the transcripts would not be released to the public, but chose to assure everyone that they would be released in order to place public attention on the judge who would refuse to release them and thereby conceal his misconduct.

Voters need to get rid of this racist schemer next time around.


Defense of #Ferguson grand jury as a crucible for truth fails straight-face test

November 18, 2014

Tuesday, November 18, 2014

Good morning:

Paul Callan, a former prosecutor, ironically calls for sanity in his article at the Daily Beast yesterday titled, There’s No Conspiracy in Ferguson’s Secret Jury. I say ‘ironically’ because his argument is based on the fundamental Sixth Amendment rights of an accused to be represented by conflict-free counsel who cross examines prosecution witnesses in a public trial, not a secret grand jury proceeding.

As he well knows, the target of the grand jury investigation is Officer Darren Wilson. Neither Wilson nor his lawyer have a right to be present when the grand jury hears evidence about his case. They have no right to know who the witnesses are or what they say and there is no right to cross examine. There is no judge and the rules of evidence do not apply. The prosecutor decides what the charge or charges should be and he controls what evidence the grand jury gets to hear. He can introduce evidence that would not be admissible in court, such as hearsay or inadmissible civilian and expert opinions. He has no obligation to present exculpatory evidence. For all of these reasons, grand juries have been called star-chamber proceedings. Critics are only half-kidding when they say that a prosecutor can persuade a grand jury to indict a ham sandwich.

The flaw in Callan’s argument is that he assumes that the prosecutor will play the traditional role of defense counsel in a public trial to aggressively, thoroughly and effectively expose the truth in the crucible of cross examination. That assumption is false because a prosecutor’s job is to represent the people by obtaining an indictment to prosecute the defendant, not defend him. If, as in this case, the prosecutor has close ties to police — his father was a white police officer who was killed by a black male and he has a history of sympathy for white cops and antipathy for black defendants — there is a reasonable and legitimate concern that he has a conflict of interest.

The unstated premise in Callan’s call for ‘sanity’ is no one should worry about the outcome of the grand jury because the prosecutor is going to play the role normally entrusted to an aggressive, thorough and effective defense lawyer using cross examination to expose the black eyewitnesses for the ‘liars’ that they are.

The grand jury’s job is limited to deciding if probable cause exists to believe Darren Wilson murdered an unarmed Michael Brown. The answer is “Yes,” and we have known that since August 9th, a few hours after the shooting.

Whether he is guilty or not guilty should be determined by a jury after a full and fair public trial presided over by a judge who correctly applies the rules of evidence.

Read this excerpt from Callan’s call for sanity and let us know what you think.

In a high-profile matter like the Brown case, the prospect of a witness getting his or her name and image in the newspaper or on TV by embellishing the story is for some an irresistible temptation. Repeating an embellished story before a grand jury while under oath is an entirely different matter. The grand jury inquiry affords opportunity to test accuracy of witness accounts. If the witness did in fact witness such a terrible crime, the testimony will survive in the crucible of cross-examination. If true, it will have a discernable [sic] consistency with the forensic evidence. Was the witness really in the time and place to have made the claimed observations? Was the suspect raising his hands in a surrender gesture or could the arm placement have been viewed from a different angle as an aggressive “tackle” gesture? How close was Michael Brown to Officer Wilson when he turned in Wilson’s direction? How much time did the officer have to react? Do the varied autopsy reports support or contradict witness testimony? Did Michael Brown have a motive to violently attack the officer?

Experienced prosecutors can recount case after case of witnesses recanting or altering colorful public statements under cross-examination. Witnesses also make unintentional errors sometimes based on what they have heard from others. Once again focused inquiry by the prosecutor and even the grand jurors who have the right to ask their own questions, can clarify ambiguous or inaccurate points.

By the way, I happen to know a lot about grand jury practice and procedure because I have represented many clients who were targets, subjects or witnesses during my 30-year career as a felony criminal defense lawyer.

To say that a grand jury is an ideal way to discover the truth does not pass the straight-face test because it cannot be said without laughing.


Grand Jury decision in Michael Brown shooting will be illegitimate

November 13, 2014

Thursday, November 13, 2013

Good morning:

St.Louis County prosecuting attorney Bob McCulloch, aided and abetted by a compliant news media, is intentionally violating the public’s First Amendment right to know whether Officer Darren Wilson killed Michael Brown in self-defense or murdered him.

Since August 9th when Michael Brown died in the street and six eyewitnesses said he had his hands up when he was shot, there has been probable cause to believe the officer murdered him.

In essence, he is defending the officer and concealing what he is doing by trying Michael Brown in a secret grand jury proceeding where he controls what they get to consider while his minions selectively leak evidence that is spun in a manner favorable to the officer.

For example, Mother Jones reports today,

The autopsy, which was leaked to the St. Louis Post-Dispatch, revealed Brown had been shot in the hand at close range with Wilson, putting into question whether Brown had had his hands up in the air, as some witnesses claimed.

(emphasis added)

The italicized portion of the statement is false. Dorian Johnson, who was with Brown, stated that Brown received a gunshot wound to his hand fired at close range inside the vehicle while the officer was seated holding Brown with one hand and a gun with other. Johnson’s statement is consistent with the gunshot residue found on Brown’s hand and the bullet wound described in the autopsy report.

The wound to Brown’s hand and the presence of the gunshot residue does not make it more or less likely that Brown’s hands were up when the officer shot and killed him after getting out of his vehicle and chasing Brown down the street recklessly squeezing off shots in a crowded residential neighborhood. To suggest otherwise is at best grossly irresponsible.

Let’s return to basics.

The purpose of the grand jury is not to try this case. The purpose is to decide in secret whether there is probable cause to believe that Wilson murdered Brown. If so, the grand jury should indict him for murder. If indicted, the Sixth Amendment would come into play.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

(emphasis supplied)

Last week the Arizona Court of Appeals reminded Maricopa County Superior Court Judge Sherry Stephens about the importance of public trials in the Jodi Arias case, such that despite the defense request to exclude the media and the public from the courtroom, the public has an overriding First Amendment right to know what is going on in her resentencing hearing. That is, the public and the media cannot be excluded.

The public’s right to know what is happening at any given time and what the government is doing is protected by the Freedom of the Press Clause in the First Amendment.

Secret trials are prohibited by the First and Sixth Amendments. Yet, that is exactly what is happening in St.Louis and the news media is aiding and abetting that secret proceeding.

Since the prosecutor determines what evidence to present to the grand jury, the grand jury proceedings are secret, no judge is present, and the rules of evidence do not apply, we do not know what evidence has been presented or the quality of that evidence.

Only a fool would believe the grand jury is getting an objective look at the evidence, given the selective leaks by ‘unnamed officials’ that only favor the officer.

The prosecuting attorney, who has taken an oath to uphold and enforce the law, has violated the public’s right, which is our right to know what is going on.

There is no way that a secret grand jury proceeding can ever substitute for a public trial, ever.

The grand jury’s decision will be illegitimate and not entitled to any deference or respect.


The Grand Jury investigation of the Michael Brown shooting has been hopelessly corrupted

October 23, 2014

Thursday, October 23, 2014

Good morning:

The Los Angeles Times is reporting this morning that the United States Department of Justice has condemned the selective leaking by “unnamed officials” of information provided to the grand jury investigating the Michael Brown shooting as an attempt to improperly influence public opinion. According to Andrew Hart at the Huffington Post, Attorney General Eric Holder is ‘exasperated’ by the selective leaking.

I am more than exasperated. I am disgusted because I have never seen anything this blatant.

Yesterday, I asked who is responsible for this over-the-top effort to influence public opinion.

Only one answer makes any sense.

I accuse Bob McCulloch, the St.Louis County Prosecuting Attorney, the office that he directs and supervises and for which he is accountable, and the Ferguson Police Department and Officer Darren Wilson of conspiring to selectively leak information that is exclusively within their possession, custody and control in order to influence public opinion in favor of Officer Darren Wilson, who shot and killed Michael Brown.

The grand jury should have indicted Wilson for second degree murder two months ago because no one can credibly deny that probable cause (i.e., reasonable grounds) existed to believe that Wilson murdered Michael Brown.

Wilson’s self-defense claim revealed for the first time by the leakers is a laughable self-serving tangle of scripted nonsense designed to fit the known facts.

We have a name for that. We call it subornation of perjury and it is a felony.

Today, we need to ask the next question.

Is there any reason to believe that the blatant and shocking effort to improperly influence public opinion in favor of Darren Wilson by selectively leaking information to the print media and spinning it in his favor is not also being used to influence the grand jury not to indict him for second degree murder?

Is the nation not being groomed and conditioned to passively accept a grand jury decision not to charge Wilson?

We are witnessing such massive corruption and abuse of the grand jury that its decision next month not to indict Wilson will have no legitimacy.

The people responsible for corrupting the grand jury need to be identified, prosecuted, sentenced to prison and disbarred.

The whole world is watching this wretched perversion and it’s time to end it.

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Thank you.


St.Louis Prosecuting Attorney Bob McCulloch is subverting justice in Michael Brown case

October 4, 2014

Saturday, October 4, 2014

Good morning:

I write today to clarify the role of the prosecutor and grand jury in the Michael Brown murder investigation.

State grand juries have jurisdiction to investigate and charge people with state crimes committed within the county in which they are located. State or county prosecutors submit cases to them for consideration. Grand juries can also initiate their own investigations by subpoenaing witnesses, but they rarely do that.

Federal grand juries work the same way, but they deal with with federal crimes committed within the federal district in which they are located.

Jurisdiction to charge and prosecute drug offenses overlaps because both state and federal statutes have criminalized drug crimes. To avoid doubling up, the feds handle the more serious drug cases and the states handle the less serious ones. By seriousness, I am referring to the amount of drugs involved.

Jurisdiction rarely overlaps in murder cases because jurisdiction in murder cases depends on where the crime was committed. For example, the State of Missouri has jurisdiction to prosecute Darren Wilson for killing Michael Brown, but the feds do not since the shooting did not happen on federal property, such as a military base. But they would have jurisdiction to indict him for committing a hate crime or violating Michael Brown’s civil rights, since they have jurisdiction to charge those crimes wherever they are committed.

Federal prosecutors in the Central District of Florida, which is where George Zimmerman shot and killed an unarmed Trayvon Martin, apparently have decided not to seek an indictment charging Zimmerman with a hate crime or a civil rights violation.

A St.Louis County grand jury has jurisdiction to indict Darren Wilson because the shooting happened within that county.

There is no statute of limitations in murder cases. Therefore, if the grand jury’s term expires before it decides whether to indict Darren Wilson, a new grand jury can be convened to continue the investigation.

As I see it, St. Louis County Prosecutor Bob McCulloch does not want to prosecute Darren Wilson for murdering Michael Brown, so he is deliberately dragging his feet to prevent the grand jury from indicting him.

I have reached that conclusion because I can think of no valid reason why Wilson has not been indicted. Approximately ten witnesses who do not know Brown, Wilson or each other have all described Wilson shooting Brown after Brown stopped running away, turned and raised his hands. No one described Brown bull-rushing Wilson, although one witness described Brown stumbling toward Wilson after being shot and dropping to the ground.

His body was 95 feet away from Wilson’s vehicle.

A grand jury need only find probable cause (i.e., reasonable grounds) to believe Wilson murdered Brown in order to indict Wilson.

Wilson should have been indicted weeks ago because there is far more evidence against him than is necessary to establish probable cause.

Our legal system is designed to have trials in cases like this so that the community can witness the legal process proceed toward a just result as we just witnessed in the Theodore Wafer and Michael Dunn cases.

Bob McCulloch is attempting to subvert that process and by doing so he is subverting justice.

The good people of Ferguson know what he is doing and they are expressing their dismay peacefully by public protest.

That could change, if he continues to subvert justice.

For more information on the role of grand juries, click on “grand jury” in the index of categories that appears in column on the right side of the web page.

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Superintendent of Steubenville schools indicted for obstructing justice in rape case

November 25, 2013

Monday, November 25, 2013

Good afternoon:

BIG NEWS out of Ohio.

The New York Times is reporting:

Michael McVey, the superintendent of Steubenville City Schools in Ohio, was indicted by a grand jury on felony counts of obstructing justice and tampering with evidence. Three other adults, including an elementary school principal, were indicted on lesser charges.

“While this started out being about the kids, it is also just as much about the parents, about the grown-ups, about the adults,” said Mike DeWine, Ohio’s attorney general, in announcing the charges. “How do you hold kids accountable if you don’t hold the adults accountable?”

Check it out.


Analysis of the prosecution’s case against Philip Chism

November 22, 2013

Danvers High School ...item 1a.. Pictured: Boy, 14, 'caught on camera dragging teacher's body into woods' (23 October 2013) ...item 1b.. UPDATED: 16:55 EST, 21 November 2013 ...

Creative Commons on Flickr by Marsmettn Tallahassee

Friday, November 22, 2013

Good afternoon:

Go to this link to read the 9-page affidavit filed in support of the application for a search warrant in Philip Chism’s case. Warning: Contains graphic details.

Today I am going to analyze the prosecution’s case against Philip Chism and ask readers to indicate which of three alternative ways of proving first degree murder they would select, if they were to prosecute this case.

The prosecution is not limited to proving only one theory. Separate verdict forms can be submitted as to each alternative way of proving first degree murder. To convict him of first degree murder, the prosecution need only prove one alternative. Proving one, two or all three alternative methods of committing a crime only proves one crime and only one sentence may be imposed for that one crime.

Even though Philip Chism is only 14-years-old, he will be prosecuted as an adult because Massachusetts has a statute that mandates the prosecution as adults of all juveniles over the age of 13 who are charged with murder. If convicted, he cannot be sentenced to death because Massachusetts does not have a death penalty.

He also cannot be sentenced to life without possibility of parole (LWOP) because the Supreme Court of the United States (SCOTUS) has prohibited sentencing juveniles under the age of 16 to LWOP.

He cannot be prosecuted as an adult for the charges of aggravated rape and armed robbery unless the juvenile court declines jurisdiction. Therefore, he will have to be arraigned in juvenile court on those charges.

After the arraignment, the prosecutor will file a motion asking the juvenile court to decline jurisdiction and to transfer those two charges to adult court for adjudication on the grounds that, if convicted, the court lacks the resources to rehabilitate him before he turns 21 and the alleged crimes are an inextricable part of a single criminal episode that includes the murder over which the juvenile court lacks jurisdiction. Readers can reasonably expect the juvenile court will grant the prosecution’s request.

Philip Chism will be arraigned on the three charges in adult court. Pleas of not guilty will be entered on his behalf and his counsel will be provided with discovery.

Eventually, he will have to decide whether to go to trial and contest the charges or plead guilty.

Every defendant in a criminal case has a right to be presumed innocent and go to trial, even if he committed the crime(s) charged, and the jury must be instructed to return a verdict of not guilty as to each charge, if the prosecution fails to prove it beyond a reasonable doubt.

Given his confession that is confirmed by the videotape from a hallway camera showing him entering the women’s bathroom while wearing a jacket, hat and gloves and departing sometime after that with her body in a recycling bin, little doubt exists that he killed her while acting alone.

First degree murder in Massachusetts is defined by Chapter 265, Section 1 as:

Murder committed with deliberately premeditated malice aforethought, or with extreme atrocity or cruelty, or in the commission or attempted commission of a crime punishable with death or imprisonment for life, is murder in the first degree.

Notice that there are 3 ways to commit this crime:

(1) Murder committed with deliberately premeditated malice aforethought;

(2) Murder committed with extreme atrocity or cruelty; or

(3) Murder committed in the commission or attempted commission of a crime punishable with death or imprisonment for life.

Analysis of the statute

The prosecution may be able to prove that he committed the murder by each of the following three methods.

He came to school with a box cutter, balaklava ski mask, gloves and multiple changes of clothing strongly suggesting that he premeditated the murder with malice aforethought.

The second option does not require proof of intent to kill or premeditation, if the murder itself demonstrated extreme atrocity or cruelty. The use of a boxcutter to slash her throat from behind while gripping her hair and pulling her head back suggests extreme atrocity or cruelty as would the use of the box cutter ante mortem to penetrate and slash her vagina (see below).

The third option is a felony-murder rule that does not require proof of intent to kill or premeditation, if the murder occurred during the commission of a felony that can result in a life sentence. Aggravated rape and armed robbery are felonies that can result in life sentences, so a murder committed during the commission of either those felonies would be a first degree murder.

Aggravated rape requires proof of penetration of the vagina, no matter how slight, with the penis or finger(s), or an object and proof of the use of force or threatened use of force. Massachusetts defines penetration of the mouth or anus as “unnatural sexual intercourse.”

Proof beyond a reasonable doubt of any of the following three felonies will satisfy the use-of-force element:

(1) assault with a dangerous weapon; or

(2) robbery; or

(3) armed robbery.

According to the news report last night, the prosecution has alleged that he penetrated her vagina with an object. If the object is the box cutter used ante mortem, that would likely establish that the murder was committed with extreme atrocity or cruelty.

Her body was found in the woods supine with her legs spread and a tree branch inserted into her vagina. Since this staging occurred post mortem, it should not be considered as evidence establishing that the murder was committed with extreme atrocity or cruelty.

Police also found a note with the body that said, “I hate you all.”

If you were prosecuting this case, which alternative way of proving first degree murder would you choose (assuming you had to choose one)?

Or, which alternatives are the easiest and weakest to prove and why?

Here’s a link to a Boston Globe story about the affidavit.


Philip Chism indicted by grand jury today for first degree murder, aggravated rape and armed robbery

November 21, 2013

Thursday, November 21, 2013

Good evening:

A Massachusetts grand jury returned an indictment today against 14-year-old Philip Chism.

The Boston Globe has the story.

Philip D. Chism was indicted by an Essex County grand jury today on charges of first-degree murder, aggravated rape and armed robbery, according to Essex District Attorney Jonathan Blodgett’s office. Chism allegedly attacked Ritzer when she stayed after school to talk with him about an upcoming exam, according to prosecutors and students who were in the building that day.

“The indictments returned today detail horrific and unspeakable acts,” Blodgett said in a statement. “This is the first step in a long process to secure justice for Ms. Ritzer and her family.”

/snip/

Chism allegedly sexually assaulted the victim with an object. The aggravated rape charge is brought when there was serious bodily harm or when the rape was committed during another violent felonious crime or both, prosecutors said.

Prosecutors also allege that Chism, armed with a box cutter, robbed the victim of credit cards, an iPhone, and her underwear.

Ugly, ugly crime.

This is our 765th post.


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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