Criminalizing feeding the homeless should be a felony

November 7, 2014

Friday, November 7, 2014

Good morning:

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

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

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

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

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

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

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

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

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

Now Anonymous has announced its support for feeding the homeless.

This song is for you, Mayor Seiler.

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 . . .

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.