Smoking Gun

August 11, 2014

Monday, August 11, 2014

Good afternoon:

Voila! A smoking gun that reads like a manner-and-means section of a conspiracy indictment in federal court.

Page 1: https://www.flickr.com/photos/66500846@N05/14878116961/
(Note the September 27, 2007 fax stamp at the top of the page and the defense attorney’s Bates stamp in the bottom right-hand corner)

Page 2: https://www.flickr.com/photos/66500846@N05/14694518239/in/photostream/

Page 3: https://www.flickr.com/photos/66500846@N05/14901028283/in/photostream/

This is a draft of a three-page supplementary order on suppression that the prosecutor, Jim Harris, faxed to Crane’s defense attorney, Chris McNeil four months before trial on September 27, 2007. This order purportedly supplements a previous order denying the motion to suppress.

The draft order contains a set of proposed findings of fact that contradict what the 911 caller reported to the dispatcher and the sworn testimony of Deputy Eddie McGuire, the arresting officer and sole witness at the preliminary and suppression hearings and before the grand jury.

This scripted new set of facts was introduced at the trial without objection by Crane’s defense attorney who did not cross examine the 911 caller or the arresting officer about their prior inconsistent statements. The most glaring inconsistencies were:

(1) The 911 caller testified at trial that Crane asked him if he knew where she could buy heroin, but he told the 911 dispatcher that she was writing stuff down in a notebook and having a conversation with a neighbor in the neighbor’s yard which she mentioned something about tar heroin and all that stuff. He wrote out a statement the next day in which he never mentioned heroin or any other drug and said he had a conversation with Crane about where to acquire barrels to use as planter boxes.

(2) The arresting officer testified at trial that he did not pull her over; rather, he noticed her slow driving with her left-turn signal on as he approached her from behind. As he drew near, she pulled over into the emergency lane and stopped. Because her driving was suspicious, he pulled in behind her to stop and investigate. However, he testified at the suppression and preliminary hearings that her driving was okay and he pulled her over because he thought she possessed heroin. Her lawyer did not cross examine him about his previous testimony that he stopped her.

He also testified at trial that, after he arrested and transported Crane to the hospital for a blood draw, he saw a plastic baggie containing an apparent controlled substance in plain view in the seat-belt crack next to Crane, who was sitting in the back seat on the driver’s side of his police cruiser with her hands handcuffed behind her back. He said her watch was also in plain view next to the baggie. However, he had previously testified at the preliminary hearing that he found the baggie under the back seat after she told him that her watch had fallen off her wrist during the transport and slipped behind the seat. She asked him to retrieve it for her and he found her watch and the baggie after he moved the back seat. He also admitted that he could not have seen the baggie and her watch without moving the seat.

Before the arresting officer handcuffed Crane and placed her in the back seat of his cruiser, a female officer searched her and did not find the baggie containing the suspected controlled substance. She searched Crane thoroughly at the scene of the stop, including searching her pockets with her hands and visually searching her breasts and crotch in full view of passing traffic.

At the request of the prosecutor and without objection from her defense attorney, the trial judge prohibited the defense from mentioning Crane’s request to retrieve her watch. He also did not cross examine the deputy about his prior inconsistent testimony that her watch was not in plain view.

A toxicological analysis of Crane’s blood sample (drawn after she was pulled over, searched and arrested) using gas chromatology and mass spectrometry (GCMS) detected no drugs or alcohol.

Nevertheless, the jury convicted her of DUI, possession of crack cocaine and tampering with evidence. She was sentenced to 8 years in prison.

The draft supplemental order, which uncannily predicted the material changes in the 911 caller’s and the deputy’s trial testimony 4 months before trial, was filed 3 days after the trial concluded.

Chris McNeill told Crane and me that the judge issued the order sua sponte (i.e., on his own) and he had no knowledge about it until he received a copy from the clerk’s office after the order was filed.

Although I asked him many times to file a motion to set it aside for relying on the scripted trial testimony, he never did.

To this day, he continues to deny that he knew about this order before it was filed.

I described the draft of the supplemental order as similar to a manner-and-means section of a federal grand jury indictment because it showed the manner and means by which the prosecutor and her own defense attorney conspired to rig the outcome of her trial.

Her defense attorney’s role in the conspiracy was to assure a guilty verdict by not cross examining the witnesses and by his denial of any knowledge of the supplemental order until after it was filed and his refusal to file a motion to set it aside.

Chris McNeill should be disbarred and prosecuted for conspiracy to violate her civil rights.

Stay tuned. In our next post, we will take down the crime lab.

This is our 1175th post. If you appreciate what we do, please make a donation.

Thank you,

Fred


Arresting officer commits perjury

May 29, 2014

Thursday, May 29, 2014

Good morning:

Today we are going to review the plain-view rule and demonstrate that,

(1) The arresting officer in Crane-Station’s case committed perjury at her suppression hearing and again at trial;

(2) Her lawyer, Chris McNeill knew it and refused to expose his perjury at the trial.

The Plain View Rule

Pursuant to the plain-view rule, a police officer may seize any item without consent or a search warrant, if she:

(1) has a right to be where she is;

(2) sees it in plain view; and

(3) recognizes it to be evidence of a crime.

For example, if a police officer were to pull someone over and notice an ounce of cocaine in plain view on the console of the vehicle, she could seize it and arrest the driver for suspected possession of a controlled substance, provided, she had a right to be where she was.

In other words, if she had a reasonable suspicion to believe that the person she stopped was committing, had committed, or was about to commit a crime, the stop was lawful and she had a right to be where she was when she saw the suspected controlled substance in plain view. But if she did not have a reasonable suspicion, the stop would be unlawful and both her seizure of the suspected controlled substance and arrest of the driver would be unlawful.

The plain view rule is an exception to the search warrant requirement and every police officer knows it. During my 30-year-career as a criminal defense lawyer, I cannot even estimate the number of times that a client told me that an incriminating item seized by police was concealed and definitely not in plain view even though the arresting officer claimed that it was.

Police know that they are going to win swearing contests when it’s their word against the defendant’s and they are right.

The plain view rule is such a well known exception to the search warrant requirement that I cannot imagine any officer would testify under oath that he seized an item that was not in plain view and months later testify under oath in another hearing that the item was in plain view.

Yet, that is exactly what happened in Crane-Station’s case.

No competent criminal defense attorney would fail to confront a police officer who did that, yet that is exactly what her attorney, Chris McNeill, did.

His failure to do that was a violation of his duty to vigorously defend his client and he should be suspended or disbarred for doing that.

Deputy McGuire’s testimony at the preliminary hearing

At the preliminary hearing one week after the arrest, Deputy Eddie McGuire testified:

A. So you couldn’t just–the seat comes in and out, obviously, easily because it’s detached for the purposes of searching. And I just moved the seat back, and it was sitting right there.

Q. You couldn’t see it if you were standing outside the car looking in?

A. Right. I don’t believe you could.

Deputy McGuire’s testimony at the suppression hearing

Q: And what—At that point, what did you see?

A: I just seen the watch and then the small baggy sitting–it was in plain view right there in the crack where the seat belt comes up.

Q: So you could see both?

A: I could see both, yes sir.

Crane-Station here, with supporting documents. Official court reporter transcripts.

Click on the document for an enlarged view.

Preliminary hearing title page:
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Preliminary hearing, page 11:
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Suppression hearing title page:
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Suppression Hearing page 24:
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-now, the substance has moved, and it is in plain view.

Suppression hearing page 25:
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If you think this is bad, tune in again tomorrow. It gets worse. Much worse.

Please donate, if you have not already done so.


Kentucky Public Defender hides 53 photos in Sober DUI and drug case [photos]

May 26, 2014

Good afternoon. We continue our analysis of the Sober DUI and drug case that is now published and affirmed precedent in Kentucky. This is part 3.

Part 1 is here.

Part 2 is here.

A lawyer has a duty to represent his client to the best of his ability, vigorously. He also has a duty to keep his client informed.

Chris McNeill violated both of those duties on a regular basis

In this chapter we present two egregious examples.

Photographs of the back seat of a police cruiser

On January 16, 2008, which was one week before trial, Deputy Eddie McGuire obtained the drug exhibit from the evidence unit at the McCracken County Sheriff’s Office. He took it to a prearranged meeting with prosecutor Jim Harris and defense counsel, Chris McNeill, in the department parking lot.

The purpose of the meeting was to conduct an experiment to determine (1) if Rachel Leatherman’s request for assistance in retrieving her watch from behind the seat was consistent with the configuration of the back seat and the location of the safety belt hole through which the safety belt attached to the body of the vehicle beneath the back seat, and (2) to determine if the deputy’s claim that he saw her watch and the suspected controlled substance together in plain view in the opening to the seat belt hole was credible.

They removed the back seat from the cruiser and took 53 photographs. They certainly did not need to remove the back seat to photograph the suspected drug in plain view in the seat belt hole.

The photographs support Rachel Leatherman’s claim and for that reason they were material exculpatory evidence.

Any competent criminal defense lawyer would have introduced the photographs into evidence in support of her claim because that is required by the rules of professional conduct in order to represent the client to the best of your ability, vigorously.

Not only did he fail to do that, he also failed to inform her about the photographs or the experiment in the parking lot thereby violating his duty to keep her informed about her case.

Chris McNeill is an incompetent lawyer.

The Photos

Crane-Station here. As Fred explains, McNeill never informed me of anything about my case, let alone this. In the next post, we will explain why it was important, that they changed their story at trial, to reflect that a drug was in plain view and on top of the seat, at trial, but in hearings prior to trial, it was underneath the seat and out of view. Obviously no one would direct an officer’s attention to underneath the seat, and to ask the officer to get a watch, if there were drugs, next to the watch. We will refer to this photo set, in future posts. And stay tuned, Chris McNeill gets even worse. Far worse, in fact.

First page, a to-do list from the case file, bates page stamped 1114, dated 1/15/2008, one day before:
IMG_0001
In the middle of the list is the word “car” and at the end is the deputy Eddie McGuire’s phone number, redacted.

Page 2, 2 photos:
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Page 3, 2 photos:
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Seat has been easily removed from the car.

Page 4, 2 photos:
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Page 5, 2 photos:
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Page 6, 2 photos:
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Taking the seat completely out of the car and snapping multiple dozens of photos is not something one would bother to do, to prove that something seized was in plain view. On the night of my arrest, I directed the officer to look under the seat and get my watch, and that is what he did.

And all of the people at the drug and camera meeting on January 16, 2008 knew it, or else, McNeill would not have hidden fifty-three exculpatory photographs from me.


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