Prosecutorial Legerdemain

December 26, 2011

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

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

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

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

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

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

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

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

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

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

Here are the photos:

Bill of Particulars

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

False statement on sworn Bill of Particulars

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

Sworn under oath

Sworn under oath and delivered.

Exculpatory evidence hidden

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

Exculpatory evidence hidden

enlarged.

Exculpatory evidence hidden.

The hidden exculpatory blood test result for drugs.

Exculpatory drug test result

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

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

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


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

December 24, 2011

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

All rise. Court is again in session.

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

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

Counsel, you may proceed with your cross examination.

Thank you, your Honor.

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

A: No.

Transcript Suppression, page 24, lines 15-18

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

A: Yes.

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

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

A: No.

43. You told another lie, didn’t you?

A: Yes.

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

A: Yes.

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

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

A: Yes.

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

A: No, he didn’t.

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

A: 7/14/2006.

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

A: Yes.

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

A: Yes.

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

A: Yes.

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

A: Yes.

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

A: No.

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

A: No.

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

A: Yes.

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

A: Yes.

Link.

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

A: Yes.

in-dash video

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

A: Yes.

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

A: Yes.

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

A: Yes.

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

A: Yes.

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

A: No.

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

A: Yes.

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

A: Yes.

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

A: Yes.

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

A: Yes.

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

A: Yes.

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

A: Yes.

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

A: Correct.

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

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

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

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

A: Yes.

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

A: Yes.

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

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

A: No, I didn’t.

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

A: Yes.

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

A: Yes.

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

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

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

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

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

To be continued . . .


Occupy: What To Do If You Are Subpoenaed To Testify Before A Federal Grand Jury

October 23, 2011


Lawyers, Guns, and Money by Warren Zevon

Author’s Note: I published this at Firedoglake/MyFDL on October 6, 2010 just after people, who had protested at the Republican National Convention in Minneapolis in 2008, were subpoenaed to testify before a federal grand jury in Chicago investigating them to determine if they had provided material support to terrorists and/or a terrorist group.

I am reposting it here a little over a year later because I suspect it may be useful information to some of our readers, especially those in the Occupy Everywhere movement.

I was a criminal defense lawyer for 30 years and a law professor for 3 years. I represented many clients over the years in federal court, so I have a lot of experience representing people subpoenaed to appear before a grand jury.

State grand juries generally work the same way but are significantly less often used aggressively as federal prosecutors typically use them.

Namaste Read the rest of this entry »


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