Things I Learned About Crime

September 13, 2013

Mean Dog
Image by Lucid Nightmare on flickr under creative commons.

Things I Learned About Crime

by Crane-Station for Frog Gravy

While I was locked up, I learned that the home of some of my close family in Seattle was burglarized, and things were stolen. Since I was in Crime Graduate School at the time, I wrote them a letter. I based the letter entirely on things that I had heard in jails and in prison. Your opinions and experiences may differ.

1. A dog is more effective at preventing burglary than a fancy alarm system. I have heard this from several sources. Cat burglars will avoid dogs. Dogs make a lot of noise, and sometimes they have a tendency to tear off the arms and legs of intruders, and then retire to the yard to gnaw on the limbs, while the intruder slips and slides around in his own blood.

2. Cat burglars sometimes actually love that people post those signs in the front lawn, stating the type and model of alarm system, because then, the burglar knows what he or she is dealing with.

3. If you have not recently tested or checked that your alarm system is working, you may want to do that.

4. Consider a gate for a recessed driveway.

5. Burglars don’t care for cameras.

6. If your out-of-date electronics and older model computers go missing, they are most likely at the recycle center and not the pawn shop. Out-of-date electronics have little or no pawn value. Currently, from what I have read, catalytic converters and, sadly, cemetery bronze vases are targets for thieves.

7. Jewelry does have pawn value, of course. Silver in particular is popular in this declining economy, and there are any number of places that buy it. If you own a lot of valuable stuff like this, get a safe.

8. Okay. Your stuff is locked in the safe. What is left to steal? Checks. Many thieves are in the business of stealing checks and cashing them, or selling them on the street. This practice is called ‘check kiting,’ and it is also called the ‘paper’ business, and it can be lucrative. Know the day that your checks will arrive from the bank, and immediately retrieve them from the mailbox or else consider a mailbox lock as an alternative.

9. Don’t end up in jail yourself by getting involved in a Nigerian check scam. To be honest, I am not even really sure how this scam works…but just don’t cash a check if you do not know where it came from. The older version of the Nigerian check scam is called the Spanish Prisoner.

10. Do not leave museum-quality copper pots and other copper items in places where these items are readily visible. The same goes for those long, thick orange extension cords, any and all tools, household wiring and household plumbing.

11. Aluminum is worth a fortune. Put the aluminum ladder away.

12. Some folks say that if you are moving to a city, cul-de-sacs, because of decreased in-and-out access, are less likely to be targeted for theft.

13. Parrots are worth money, and believe it or not, they get stolen and sold to less-than-ethical bird dealers. If this happens with parrots, it stands to reason that it can happen with other pets as well.

14. Another thought: If you have elderly parents or family members who have a physical disability, consider getting one of those push-button boxes that will alert an ambulance, in case of a physical emergency.

15. I believe that the idea that poor people use their food stamps to somehow buy street drugs is the stuff of urban legend. I have never heard of anyone doing such a thing. If you are on food stamps, you cannot even use them to get a cup of hot coffee to drink at five in the morning while you are waiting in line at Labor Ready; I don’t know how people equate food stamps with drug use.

____________________________________

Off-topic thoughts:

Dr. Bao has balls of iron, and I hope he can make some headway into shining the light of day onto our broken courts.

Also, not sure who to hat tip for this, but I came across it in my WordPress reader, Sting and Stevie Wonder. Lovely.

on Sting’s 60th birthday, 10/1/2011


FOX News pimps for defendant in Trayvon Martin murder case

February 28, 2013

Thursday, February 28, 2013

The beat goes on as Mark O’Mara continues to shamelessly pimp for his client.

Edmund DeMarche of Fox News writes:

George Zimmerman, the Florida man who fatally shot an unarmed Florida teenager last year, wears a disguise and a bulletproof vest whenever he is in public, his attorney said.

“He never feels safe,” Mark O’Mara, his lawyer, told FoxNews.com. “His security has been cut and he stays inside his secure location all day long due to threats.”

As a result of the confinement, Zimmerman’s health has taken a turn for the worse, O’Mara said. He gained about 100 pounds in six months and is stressed about the threats and his upcoming murder trial, which is set to begin on June 10.

“If I was confined to four rooms all day I bet I’d gain a lot of weight, too,” O’Mara said.

Next time you see the Michelin Man wearing sunglasses while standing in line at the Donut Shop, be sure to tap him on the shoulder and ask him for his autograph. Maybe he will give it to you for free, although I would not bet the ranch.

On second thought, we don’t need you to do that because this Afro Peruvian descendant of African kings might pull out a gun and blow away your heart.

Now prepare yourself for this fine example of journalism at its finest:

Last year, Zimmerman spotted Trayvon Martin walking through his neighborhood, a gated community, in Sanford, Fla. Martin was walking back to a house he was staying at in the community after a trip to a convenience store.

Zimmerman started to follow him because he thought he looked suspicious. Despite a police dispatcher telling him “you don’t have to do that,” Zimmerman got out of his truck to pursue Martin.

They got into a fight and Martin was shot.

You gotta love that integrity.

But wait, there’s more:

O’Mara said he talks with Zimmerman every day. He said the couple relies on donations to survive since neither one can hold down a job.

He said Zimmerman, who previously aspired to be a judge, looks forward to the trial to begin, but has been disenfranchised about the legal proceedings thus far.

To be sure, even if his client is acquitted, O’Mara said he will likely never feel safe in his hometown or Florida.

“He’d have to go somewhere where nobody knows him,” O’Mara said.

So, O’Mara and his client are a “couple” and poor George is wearing bulletproof vests and disguises while he steadily eats himself to death because he doesn’t get to vote on the outcome of his trial.

Excuse me, while I cry me a river of tears.

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CNN article promotes racist description of Trayvon Martin case

February 27, 2013

Wednesday, February 27, 2013

Thanks to all who participated in yesterday’s memorial to Trayvon Martin.

I write today to express disgust and dismay regarding this excuse for journalism by Steve Almasy of CNN, Zimmerman’s lawyer works to dispel racial overtones in Trayvon Martin case.

The focus of the piece is Mark O’Mara’s “struggle” to get people to pay attention to the evidence instead of racism.

Whatever the outcome of the Trayvon Martin case, it will be viewed less as a determination of the shooter’s guilt or innocence and more as a victory or loss for civil rights, George Zimmerman’s lawyer fears.

Mark O’Mara said he has been busy trying to dispel the racial overtones in the case by getting out more evidence about his client.

Thereafter, we get the usual he-said-she-said description of the case interspersed with O’Mara’s unchallenged mischaracterizations of the evidence followed up with this description of Benjamin Crump as a rabble rousing troublemaker pushing the race card.

O’Mara indicated at trial he will dissect the recording of Zimmerman’s 911 call and point to evidence of the wounds Zimmerman said he suffered that night.

“I believe, you know, again, the evidence is what it is and that’s for a jury to determine,” O’Mara said. “But a close reading or looking at that tape and all the evidence that followed, particularly George’s injuries and Trayvon’s lack of injuries but for the fatal gunshot, suggest that George did not begin the fight, did not continue the fight and actually was the victim of the attack rather than the other way around.”

But a lawyer for the Martins said the fight against “senseless gun violence” will continue.

“He went home and slept in his bed the night he killed Trayvon,” attorney Benjamin Crump said. “And that wasn’t equal justice.”

Crump then led a chant of “Hoodies up! Hoodies up!” at the vigil.

This false concoction is presented with a cherry on top in the form of the optically distorted and likely photoshopped digital photo of the defendant seated in the back seat of a patrol vehicle with a bump on his nose and blood on his mustache. CNN has no excuse for not knowing that the photo presents a false picture because the police photos taken at the station house a few hours later with a much better camera under good lighting show a barely visible injury with little or no swelling or distortion to the shape of the nose.

As all of us know, despite conceding that his client was the aggressor, O’Mara has been shoving his demonstrably false “bloody” photograph in front of every camera he can find in pursuit of his easy-to-disprove false narrative that the peaceful and nonviolent Trayvon for no apparent reason attacked and attempted to kill the defendant with his bare hands in the middle of his phone conversation with his girlfriend after successfully running away from the defendant who had been stalking him in a vehicle and then on foot contrary to a police dispatcher’s warning.

The simple truth is this defendant has no defense and the only mystery in this case is why anyone believes that the he did not hunt, confront, and murder Trayvon Martin for the heinous crime of walking while Black in the rain with his hoodie up.

I said long ago and I will repeat it today:

Anyone who believes the defendant is innocent is a racist and anyone who contributes money to his defense is a stupid racist.

Let there be no mistake: Although he claims otherwise, Mark O’Mara and his client are deliberately appealing to racial hatred and fear of young Black males to literally get away with murder.

That is what this case is all about and shame on CNN for not reporting the truth.


Zimmerman: 13 Questions Searching for an Answer

July 25, 2012

The shooter in a self-defense case with an unarmed victim usually claims that he thought the person he killed was armed and reaching for a weapon when he shot and killed him.

GZ has not made that claim with the exception of his first “apology” to TM’s parents in court at the first bail hearing when he said he thought TM might be armed.

I have been wondering why he hasn’t been claiming all along that he thought TM was armed.

As he was sitting in his vehicle, GZ told the dispatcher that TM was reaching into his waistband as TM was approaching him. He said TM walked past the vehicle, broke into a run, and disappeared from GZ’s view. This statement set up the I-thought-he-was-armed defense.

After he shot and killed TM a few minutes later, he patted him down for a weapon, but did not find one.

He did not admit patting him down. Instead, he said TM was lying face down. He mounted him from behind, grabbed his hands, and stretched TM’s arms out to the side in a Y-position to prevent TM, who was still struggling and cursing him at that point, from reaching his (GZ’s) gun lying nearby in the grass.

We know this story is a lie because TM’s hands were underneath his body when the police arrived at the scene. Both of TM’s lungs were collapsed and he could not push any air through his vocal cords to utter a sound, much less speak a word. More important, TM would have lost consciousness and died instantly after the gunshot destroyed his right ventricle and collapsed both lungs.

A witness told the police that she saw the large man straddling the boy, who was lying face down in the grass, and running his hands up and down the boy’s back. Her description sounds like a search for weapons.

These two established facts lead me to believe that GZ thought TM was armed with some sort of weapon when he got out of his vehicle and set off in pursuit of him to prevent this particular “asshole” and “punk” from getting away like all of the others.

Because GZ believed TM was armed, I have a difficult time believing GZ did not pull his gun out of his holster before he spotted TM and approached him.

I surmise that when he realized after the shooting that TM was not armed, he decided not to claim that he believed TM was armed because such a claim would have been inconsistent with the struggle and screaming. That is, if TM were armed, he would have drawn his weapon during the fight. A claim that he believed TM was reaching for his (TM’s) weapon and he (GZ) killed him to prevent TM from killing him would not withstand scrutiny.

GZ only had a minute or two to scramble together a story to tell the police before they arrived. I think he decided to reject the I-thought-he-was-armed defense, since TM did not have a weapon, and he decided instead to go with the-psycho-Black-gangsta-Mofo-jumped-and-attempted-to-kill-me-with-his-bare-hands defense because he (GZ) had some bleeding injuries from his struggle with TM. Then he replaced the I-thought-he-was-reaching-for-his-gun narrative with the I-felt-him-reaching-for-my-gun-in-my-holster story to conceal that he had already drawn his gun before the physical encounter started.

Because he must have known that an aggressor cannot claim self-defense, he conveniently left out the part that he attacked and attempted to restrain TM. To justify using deadly force in self-defense, he claimed TM attacked him and was slamming his head against the concrete in an effort to kill him. Unfortunately for him, the wounds to the back of his head and the pattern of blood flow depicted in the photograph of the back of his head taken at the scene of the shooting disprove this scenario.

I have been wondering why GZ’s key chain and little flashlight were found next to the N/S sidewalk a few feet south of the T-intersection and close to the tree. This is Item 1 on the Total Station. The flashlight was on.

The rest of the items, including the tan 7/11 bag (Item 2), spent casing (Item 6), GZ’s black tactical flashlight (Item 5) and TM’s cell phone (Item 7) were found close to TM’s body approximately 40 feet south of the intersection.

Why is the key chain and flashlight up near the intersection instead of with the rest of the items?

I have never believed TM attacked GZ at the intersection. I suspect he was hiding in the shadows one or two houses down from the intersection talking to DeeDee on his cell phone when GZ spotted him from the intersection.

I think GZ most likely was running or jogging E/B on the cut-through sidewalk from RVC, where he went to see if TM was running S/B toward the rear entrance to the neighborhood. When he did not see him, he realized TM must have run into the area between the two rows of townhouses. He turned around and retraced his route spotting TM from the intersection.

Here are my 13 questions searching for an answer.

1. Did GZ unholster his gun when he spotted TM and dislodge or drop his key chain and flashlight?

2. Did he grab the flashlight with one hand and the gun with the other?

3. Did he need two hands to grab the gun and drop the flashlight unintentionally as he grabbed the gun?

4. Where was it?

5. Was it hooked to his belt or a belt loop on his pants?

6. Was it in a pocket?

7. Was he holding it?

8. Was it turned on?

9. Why would he risk turning it on, possibly making himself a target, if he believed TM might be armed?

10. If so, when did he turn it on and why?

11. Did he even know that he dropped it?

12. Did he run into the tree, bump and bloody his nose or did TM hit his nose during their struggle?

13. Why is GZ’s 6-inch tactical flashlight near TM’s body?


Was Trayvon Martin Attempting to get Away when George Zimmerman killed Him?

July 15, 2012

Amy L. Siewert is a Crime Laboratory Analyst employed by the Florida Department of Law Enforcement Crime Laboratory. She examined TM’s Fruit of the Loom dark gray hooded sweatshirt (Exhibit ME 12) and the light gray Nike sweatshirt (Exhibit ME 8) that he was wearing underneath the hoodie when GZ shot and killed him

In her report dated March 22, 2012, she concluded:

The sweatshirts each display a hole located in the upper chest area. The areas around these holes were microscopically examined and chemically processed for the presence of gunshot residues. Both holes displayed residues and physical effects consistent with a contact shot.

In her bench notes, which the prosecution released in the recent document dump last Thursday, she specifically noted that her microscopic examination of the the light gray sweatshirt (ME 8) “shows results consistent with a contact shot (tearing a hole, sooting around the hole, burning/singeing, no powder pattern, vaporous Pb surrounding the hole). She also noted that the hole exhibited “stellate” tearing. She described the hole in the hooded sweatshirt (ME 12) identically, but noted L-shaped tearing.

These are the classic signs of a contact shot. That is, the muzzle of the gun was in contact with the outer hooded sweatshirt with the light gray sweatshirt immediately behind, or in contact with it.

She also test fired GZ’s gun into squares of cloth cut from both sweatshirts and verified that the muzzle of the gun was in contact with the sweatshirts.

She also noted that the holes in the sweatshirts align with each other.

She also measured the vertical distance from the hole up to to the neck seam at approximately 7 inches. The horizontal distance to the shoulder seam was approximately 7 1/2 inches.

Although these holes align with each other, they do not align with the entry wound in TM’s chest. According to the autopsy report, the entry wound is 1 inch left of the midline and 1/2 inch below the left nipple.

Therefore, the entry wound is approximately 3 1/2 inches below and 2 1/2 inches closer to the midline than the holes in the sweatshirts.

Also significant is that the entry wound was caused by a gunshot in which the muzzle of the gun was at an intermediate range of 2-4 inches.

What does this mean?

I believe it means the sweatshirts were being pulled down or being held by GZ as TM was pulling back or attempting to stand up (and probably screaming for help as he did so) when GZ pressed the muzzle of his gun against the hooded sweatshirt and pulled the trigger. The two sweatshirts were in contact with each other (i.e., gripped together) and approximately 2-4 inches from his chest.

The trajectory of the shot would have been straight through neither varying up or down nor left or right, if TM were leaning forward while attempting to get away, but restrained from escaping by GZ’s grip on his sweatshirts.


The Curious Case of the Three Suppression Orders (Part 2)

December 8, 2011

Author’s note: In case y’all missed it or want to refresh your recollection, Part 1 is here.

Deputy McGuire testified at the suppression hearing that he was dispatched by 911 to investigate a call by a citizen who reported that, “There’s this lady walking around in my neighbor’s yard talking to my neighbor and writing stuff down in a notebook and she mentioned something about tar heroin and all that stuff.”

The caller identified himself and described the woman and her vehicle. He also reported that the vehicle had a WA license and provided the number. He did not indicate if he had spoken with the woman; if he was present when the conversation took place; who told him about it if he was not present; or what she was writing down.

When he arrived in the area, the deputy searched for but he did not find the woman or the vehicle and he cleared the call without talking to the 911 caller. As he was approaching the traffic-controlled Cairo Road intersection in the passing lane on Highway 60, he noticed that he was passing a vehicle with its left turn signal blinking. The vehicle had WA plates and both the driver and the vehicle matched the description provided by the caller. He decided to pull her over and investigate.

He slowed down, allowing her to move ahead, and then he fell in directly behind her. She reacted by activating her right turn signal and moved over into the emergency lane along the right shoulder of the highway. As she did, he activated his emergency lights, moved over with her, and stopped behind her.

Upon request, she produced her license, registration, and proof of insurance without difficulty.

When he ordered her to get out of her vehicle, she did so without stumbling, and she followed his instructions without exhibiting any confusion or mental impairment. Other than “glassy” eyes and nervousness, he saw no signs of possible impairment. He administered a portable breath test (PBT) that she passed, effectively ruling out alcohol intoxication. Although she “failed all six clues” on the horizontal gaze nystagmus test (HGN), he administered the test improperly, according to the National Highway Transportation and Safety Administration (NHTSA) because he positioned her facing the headlights of oncoming traffic and his patrol cruiser’s emergency lights. NHTSA, which developed the test, warns police not to do that because the lights produce a false nystagmus.

The deputy conceded that he did not witness any bad driving and her blinking left-turn signal could have been due to her intending to move into the left lane, but his approaching vehicle in that lane prevented her from doing so.

After he placed her under arrest for DUI, he transported her to a hospital for a blood draw and discovered an apparent rock of crack next to her watch in the seatbelt crack of his back seat next to where she was sitting.

Author’s note: In another post we discussed his prior testimony under oath at the preliminary hearing and the grand jury in which he said he found her watch and the rock of crack under his back seat. In other words, he did not find it in plain view on the seat beside her. He said he pulled the back seat forward to look for her watch after she told him that it had fallen off and slipped behind the seat. She asked him to retrieve it because she was handcuffed and could not do it herself.

The trial judge entered three suppression orders.

1. The First Order.

On January 11, 2007, Judge Clymer issued his first order denying the motion to suppress evidence. Although all of the material findings of fact and conclusions of law were clearly erroneous, one finding of fact and its corresponding conclusion of law merit special consideration. In Finding of Fact 5, Judge Clymer wrote,

When Defendant first exited the [her] vehicle the Deputy observed a wristwatch in close proximity to a baggie with apparent controlled substance inside the car. Defendant denied the apparent controlled substance was hers but acknowledged the wristwatch was hers.

This did not inspire confidence as one can only wonder how the judge forgot or became confused and thought that the rock of crack was discovered in her vehicle rather than the police cruiser.

Not to worry, we thought. We pointed out that and other errors and asked him to reconsider his order, which he agreed to do.

2. The Second Order

On January 18, 2008, Judge Clymer entered his second order concerning the defense suppression motion. He found that while driving “in a right hand traffic lane with her left turn signal activated, [the appellant] did not turn but pulled to the right side of the roadway and stopped.” (Finding of Fact 3) “The deputy pulled in behind the stopped vehicle and activated his emergency lights.” (Finding of Fact 4) He concluded that the arresting officer “did not conduct a stop of the appellant’s vehicle” because she “pulled off the roadway and stopped” before “he pulled in behind her and turned on his emergency lights so as to investigate.” (Conclusion of Law 1)

Author’s note: We have already discussed whether this was an investigatory stop initiated by a police officer or a voluntary citizen initiated contact with a police officer. This was an investigatory stop.

Judge Clymer also concluded that “[t]he combination of a report of an unknown person, driving a Washington state licensed vehicle in a Paducah, Kentucky residential area, asking about tar heroin, later observed to signal a left turn but pull off the roadway to the right, constitutes reasonable suspicion to investigate and possibly cite for improper signal.” (Conclusion of Law 2)

Author’s note: A person who calls 911 to report a possible crime is presumed to have provided reliable information if he identifies himself and provides a current address. Since the caller in this case provided the requisite information, he would be presumed to have provided reliable information. However, even if one assumes that his information was accurate and reliable, he did not describe criminal activity. In addition, the judge’s findings of fact conflict with the information provided by the caller and the deputy’s testimony, which described an alert driver operating her motor vehicle in compliance with the traffic laws. He could not have cited her for “improper signal” because no such statute exists. Since the information provided by the presumptively reliable caller and the deputy described lawful activity, the judge erroneously concluded that the deputy had a reasonable suspicion “to investigate and possibly cite for improper signal.”

Regarding the appellant’s arrest, he found as fact that the appellant admitted that she had taken several prescription medications, including Clonazepam. (Finding of Fact 6) He also found that “[t]he maker of Clonazepam warns that it should not be used when driving a vehicle and that the drug causes abnormal eye movements.” (Finding of Fact 7) He concluded, “[d]efendants inquiring about heroin, failing an HGN test, signaling a left turn and pulling off the road to the right, and stating she was taking medication that would cause her to fail the test, constitutes probable cause to arrest for DUI.” (Conclusion of Law 4).

Author’s note: We have already discussed the HGN and Clonazepam issues noting that the product insert does not warn “that it should not be used when driving a vehicle and that the drug causes abnormal eye movements.” It advises physicians to warn their patients for whom they first prescribe Clonazepam to be careful because the drug might cause drowsiness and impair their ability to operate a motor vehicle or other machinery. If that happens, the dosage can be lowered to avoid impairment. This is actually a common warning given for many drugs that are prescribed to improve functioning. Clonazepam is such a drug and it is prescribed to enhance function by reducing anxiety and to control seizures. Dosage is critical. Assuming the judge was honest, the rest of the finding establishes that he was thinking of a different case when he crafted this effort.

To be continued.


The Curious Case of the Three Suppression Orders

November 23, 2011

Author’s note: This diary is part of the Frog Gravy legal case and will be posted in three parts beginning today and ending on Thursday, which is Thanksgiving. In this part I explain basic pretrial legal procedure that is common in criminal cases. Specifically, I explain suppression hearings, which most of you probably have heard about, but might not know some of the finer details. This information will be helpful to understanding the incredibly bizarre events that followed; events that will be the subject of the next two parts. Now, get comfortable, buckle your sealtbelt, and get ready for your ride down the rabbit hole.

If you have not already done so, I recommend you watch the embedded video, in which a 16-year-old white girl is ordered to stand trial for murder as a 300-pound black man, to get yourself in the proper frame of mind. And, now here is The Curious Case of the Three Suppression Orders

The Fourth Amendment prohibits unreasonable searches and seizures. The exclusionary rule prohibits the prosecution from using evidence against a defendant, if that evidence was seized by police in violation of the Fourth Amendment.

A suppression hearing is a pretrial hearing in which a defendant asks the court to suppress evidence that the prosecution intends to introduce at trial against the defendant. If the court grants the request and orders the evidence suppressed, the prosecution is prohibited from introducing it or referring to it during the trial.

Suppression hearings are held before trial to resolve legal issues relating to the admissibility of evidence allegedly seized in violation of the Fourth Amendment, because in many cases, especially drug cases, the prosecution would be unable to try the case, if the court were to order the evidence suppressed. If that were to happen, the prosecution would be forced to dismiss the case and there would be no need for a trial.

Normally, a court issues a written order granting or denying the motion to suppress and sets forth findings of fact and conclusions of law that support the order. Findings of fact, as the term implies, are findings regarding what happened. They are the facts of the case upon which the conclusions of law must be based.

For example, let us suppose that Archie testified that a traffic light was green and Gillian testified that it was red. Whether the light was green or red would be a disputed fact and the judge would have to find as fact one or the other. If both witnesses agreed that the light was red, that would be an undisputed fact and the judge would have to find as fact that the light was red.

Normally, there is only one suppression order and it is entered before the scheduled trial date. Usually, the prevailing party drafts the order and provides opposing counsel with a copy. If opposing counsel agrees to the proposed order, the trial court will enter it as an agreed order without a hearing, unless the judge wants to change something. When that happens, the judge will schedule a hearing to finalize the order. The prosecutor, defense counsel, and the defendant appear for the hearing, hash out their differences, and the judge makes a final ruling. In other words, the process is transparent and ex parte contact with the judge (by one lawyer without the other present) is prohibited.

When suppression orders are appealed, the appellate courts review challenged findings of fact to determine if they are “clearly erroneous.” That is, unsupported by any evidence. Appellate courts uniformly refuse to second-guess a trial court’s challenged finding of fact, as long as there is some evidence to support it, even if the appellate judges might personally disagree with the trial court. Their reluctance to second-guess the trial court is based on the well-founded notion that they are not in as good a position to judge witness credibility since they were not present when the witness testified.

Conclusions of law are reviewed de novo. That is, they are reviewed anew without any deference to the trial court.

Crane-Station’s lawyer filed a motion, which is a formal request, to suppress all of the evidence seized by police after she was pulled over while driving down the highway and arrested for driving under the influence of drugs. Her lawyer argued for suppression on the grounds that:

1. The stop violated the Fourth Amendment because police pulled her over without a reasonable suspicion to believe that she had committed, was committing, or was about to commit a crime; and even if they did have a reasonable suspicion;

2. The subsequent arrest violated the Fourth Amendment because police lacked probable cause to believe that she had committed a crime.
The suppression hearing took place on November 27, 2006. Only one witness testified, Deputy Eddie McGuire of the McCracken County Sheriff’s Department.

We have already recounted his testimony in some detail and will not repeat it here, except to briefly summarize and note that there were no disputed facts, since he was the only witness who testified. Therefore, it should have been relatively easy for a sentient being, especially an educated judge who took an oath to uphold the Constitution and impartially follow the law, to come up with a set of findings of fact that were supported by the evidence.

Alas, it was not to be.

To be continued

Cross posted at Firedoglake/MyFDL and the Smirking Chimp.


Investigatory Stop Or Voluntary Citizen Initiated Contact With Police?

November 11, 2011

An interesting Fourth Amendment issue arises from time to time regarding whether a police officer initiates a contact with a person operating a motor vehicle by pulling it over, or the driver voluntarily initiates the contact by stopping the vehicle and signals for assistance by turning on the vehicle’s blinking hazard lights, as might be the case for example, with a health emergency, a flat tire, or running out of gas.

With few exceptions, the first situation is prohibited by the Fourth Amendment, unless the officer has a “reasonable suspicion” that the motorist has committed, is committing, or is about to commit a crime. A reasonable suspicion is more than a mere hunch because it must be supported by an articulable set of objective facts and circumstances that would cause a reasonable person to suspect that the individual being observed had committed, was committing, or was about to commit a crime. In the standard drunk driving case, for example, an officer would have a reasonable suspicion to believe the operator of a motor vehicle was impaired by alcohol if the vehicle was weaving, crossing the center line, exceeding the speed limit, and speeding up and slowing down erratically. The courts apply a flexible totality of the circumstances test in determining whether the officer’s suspicion was reasonable in any given case. The courts will not consider information acquired after a stop because the officer did not know it prior to the stop and could not have relied on information he did not know.

The second situation is not subject to the Fourth Amendment because there is no seizure when a police-citizen contact is initiated voluntarily by the citizen, or the citizen appears to require assistance. This means that an officer does not have to have a reasonable suspicion to contact a citizen who initiates the contact, or otherwise appears to require assistance. This distinction certainly makes sense when one considers, for example, the plight of a motorist who may have suffered a heart attack, turned on the hazard lights, pulled over, and stopped the vehicle before lapsing into unconsciousness. It would not make any sense to require a police officer to have a reasonable suspicion to believe that the apparently unconscious person was committing a crime to justify stopping to check on the person.

Unfortunately, however, the distinction between an investigatory stop that requires a reasonable suspicion under the Fourth Amendment and the voluntary citizen initated contact with a police officer that is not subject to the Fourth Amendment is not always easy to determine. As with the reasonable suspicion test, the courts consider the totality of the circumstances and ask whether a reasonable person in the same set of circumstances faced by the person in the case under review would have believed that he was free to terminate the contact at any time and drive away rather than remain and submit to the authority of the law enforcement officer until released.

This issue was raised by the prosecution in Crane-Station’s case. The trial judge agreed with the prosecution and ruled that the arresting officer, McCracken County Sheriff Deputy Eddie McGuire, did not require a reasonable suspicion to pull her over because she had voluntarily initiated a citizen-police contact to which the Fourth Amendment did not apply.

Consider the following evidence, apply the legal rules that I have set forth and explained for you, and see if you agree with the trial judge’s conclusion.

At the suppression hearing on November 27, 2006, Deputy McGuire testified that he was dispatched to investigate a 911 call. After he arrived, he checked the neighborhood for a few minutes looking for a dark blue Buick LeSabre with Washington plates that was described the caller. When he did not find it, he cleared the call and headed back toward town on U.S. Highway 60.

(Note: The content of this call has been discussed in a previous article (link). Briefly, the caller told the 911 dispatcher that the driver of the vehicle had mentioned “something about tar heroin and all that stuff” while talking to his neighbor in the neighbor’s yard and writing in her notebook. Since this information, even if true, describes what someone said to another person that may or may not have been witnessed by the caller and it does not describe a crime or an attempt to commit a crime, the call was insufficient to cause a reasonable person to suspect that the person described by the caller had committed, was committing, or was about to commit a crime. To conclude otherwise would be to hold that police officer may lawfully seize and investigate any person who mentions the name of a controlled substance to another person. Such a rule not only would dispense with the requirement that the suspected behavior be criminal in nature, it would violate a person’s right to freedom of speech under the First Amendment.)

As McGuire approached the traffic-light controlled intersection at U.S. Highway 60 and Cairo Road, he suddenly realized that he was passing a vehicle that matched the description provided by the 911 caller. After admitting that he did not know how fast he was driving as he approached and drew alongside her vehicle (Suppression Transcript p. 13), he said,

As I was passing the vehicle she had her left blinker on as if she was going to turn out in the passing lane, but she never did.

And then as I was going to go ahead and go past her, I noticed that the license plate – it was a Washington license plate was the description that was also given at the time of the call. So when I noticed that, I slowed down and let her go back by me, and then when I pulled in behind her, she pulled over.

(Suppression Transcript p. 6)

The prosecutor asked him when he turned on his emergency lights and he said,

I just pulled in behind her, and she started to pull over. That’s when I lit her up.

(Suppression Transcript p. 6)

On cross-examination, defense counsel asked McGuire if she “was driving appropriately.” He said,

I was going – yes. She didn’t bring my attention as far as weaving or nothing like that. Speed wasn’t a factor.

(Suppression Transcript p. 13)

Defense counsel focused on the blinking left-turn signal with a few questions.

Q: Okay. And apparently, your testimony is that she had on her turn signal?

A: She had her left-turn signal on as if she was going to come into the left lane. That’s what brought my attention to that vehicle to begin with. And then as I was passing her, I noticed it had Washington tags.

Q: So I guess there’s at least a possibility she was going to move into the left lane and –

A: Right.

Q: — saw your vehicle and elected not to?

A: Correct. That’s possible.

(Suppression Transcript pp. 12-13)

Defense counsel asked him to describe when she activated her right-turn signal. He said,

A: She turned her other turn signal on when she was going into the emergency lane just to stop.

Q: When she was getting ready to pull over?

A: Yes.

(Suppression. Transcript p. 15)

When defense counsel asked him if he activated his lights “even before she came to a complete stop,” McGuire answered, “Correct.” (Suppression Transcript p. 14)

Q: So, technically, you did stop the vehicle?

A: I was going to, anyway, yes. When she started to pull over, I just went ahead and turned my lights on.

Q: When you fell in behind her, she pretty much –

A: She – yeah. I suppose she assumed I was going to stop her, so she went ahead and pulled over anyway.

Q: Safe assumption under those circumstances?

A: Right.

(Suppression Transcript 14-15)

Consider also that Deputy McGuire wrote in his Uniform Citation and Offense Report that he stopped her, which he confirmed in testimony under oath at the Preliminary Hearing and before the Grand Jury.

In addition, on October 17, 2006, Assistant Commonwealth’s Attorney (now a McCracken County District Court judge) Christopher B. Hollowell prepared and filed the Commonwealth’s Bill of Particulars declaring in pertinent part under penalty of perjury that Deputy McGuire “stopped” her vehicle.

(Note: this is also admissible non-hearsay as a declaration by a party opponent that arguably should be dispositive of the legal issue. See Part 1 of my four-part series on the hearsay rule.)

The critical question then is whether a reasonable person in Crane-Station’s position would have pulled over into the emergency lane and subsequently stopped her vehicle after a police officer, who had pulled alongside her, slowed down, fell in immediately behind her, and activated his emergency lights as she moved over into the emergency lane?

We do not believe the answer to this question is reasonably debatable, especially since the officer who pulled her over wrote in his report and consistently testified under oath at three different pretrial hearings that he “stopped” her. Finally, in the suppression hearing, he testified that he intended to stop her and he conceded that her reaction to his behavior by pulling over and stopping was reasonable under the circumstances.

He was the only witness who testified at the suppression hearing.

We believe that only outcome driven judicial mendacity by the trial judge and the Court of Appeals, aided and abetted by a strong dose of prosecutorial legerdemain in formulating an argument unsupported by the police officer, who was the only witness, could conclude on this set of undisputed facts that Crane-Station voluntarily initiated a citizen-police contact.

Author’s disclosure: Crane-Station is my wife. We were married and I was a law professor when this incident intruded into our lives.

Cross posted at Firedoglake/MyFDL and at the Smirking Chimp.


Horizontal Gaze Nystagmus (HGN) And The Frog Gravy Legal Case

October 25, 2011

In Crane Station’s case, the Court of Appeals said,

In the present case, we hold that Deputy McGuire had probable cause to arrest Leatherman for DUI. Deputy McGuire testified that Leatherman appeared to be under the influence of something, despite his observation that she was not driving erratically or weaving. Furthermore, Leatherman failed the HGN test, which reveals intoxication by alcohol or some other drug, although she later passed the breathalyzer test. Finally, the product information for Klonopin (Clonazepam) attached to Leatherman’s brief states that patients taking that medication “should be cautioned about operating hazardous machinery, including automobiles, until they are reasonably certain the Klonopin therapy does not affect them adversely.” Therefore, the observation of Leatherman’s glassy eyes and odd behavior coupled with her admission that she was taking prescription medication that included a warning about driving was sufficient to provide Deputy McGuire with probable cause to arrest her for DUI. Therefore, Deputy McGuire’s warrantless arrest of Leatherman did not deprive her of her constitutional rights against illegal search and seizure.

As we shall soon see, this conclusion is unsupported by the evidence and makes no sense.

The Court begins its analysis of the evidence by noting that the deputy

testified that Leatherman appeared to be under the influence of something, despite his observation that she was not driving erratically or weaving.

. So, the Court concedes that there was nothing improper about her driving and it does not say that she was unsteady on her feet, smelled of alcohol, or that she exhibited any mental confusion. In other words, she exhibited no physical or mental impairment.

The Court continued,

Furthermore, Leatherman failed the HGN test, which reveals intoxication by alcohol or some other drug, although she later passed the breathalyzer test.

So, in other words, she passed the breathalyzer test ruling out alcohol intoxication. (Actually it was a portable breath test, or PBT, that the deputy administered to her at the roadside before he handcuffed her and placed her in the back of his patrol vehicle.)

Therefore, with the exception of the HGN test result that I will discuss next, the Court has conceded that the deputy did not see any bad driving or physical evidence of alcohol or drug impairment.

What about the HGN?

HGN is an acronym for horizontal gaze nystagmus. The test was described recently by the Supreme Court of Illinois in People v. McKown, 924 N.E.2d 941 (2010):

Nystagmus is “an involuntary, rapid, rhythmic movement of the eyeball, which may be horizontal, vertical, rotatory, or mixed, i.e., of two varieties.” Dorland’s Illustrated Medical Dictionary 1296 (30th ed.2003). The medical dictionary lists 45 types of nystagmus. For example, ataxic nystagmus is unilateral and occurs in individuals with multiple sclerosis. Dorland’s Illustrated Medical Dictionary 1296 (30th ed.2003). Congenital nystagmus “may be caused by or associated with optic atrophy, coloboma, albinism, bilateral macular lesions, congenital cataract, severe astigmatism, and glaucoma.” Dorland’s Illustrated Medical Dictionary 1296 (30th ed.2003). Gaze nystagmus, which is at issue in the present case, is “made apparent by looking to the right or to the left,” as opposed to fixation nystagmus, “which appears only on gazing fixedly at an object,” or latent nystagmus, “which occurs only when one eye is covered.” Dorland’s Illustrated Medical Dictionary 1296 (30th ed.2003).

The methodology employed by law enforcement officers for conducting an HGN testing as a part of field-sobriety testing is explained in detail in our earlier opinion. In brief, the officer first questions the subject to determine whether he or she has any medical condition or is taking any medication that might affect the results of the test. If not, the officer performs a preliminary test to determine whether the pupils of the subject’s eyes are of equal size and whether the eyes “track” equally as an object is moved, at eye level, from side to side. If so, the HGN test itself is performed. The officer looks for three “clues,” assessing each eye separately. The three clues are lack of smooth pursuit, distinct nystagmus at maximum deviation, and the onset of nystagmus at an angle less than 45 degrees. One point is assigned for each clue that is present in either eye. Thus, the maximum score is six, which would indicate all three clues present in both eyes. A score of four or more is considered “failing” and indicative of alcohol impairment. McKown I, 226 Ill.2d at 249-50.

After reviewing all of the evidence presented by the prosecution and the defense relative to the HGN Test and whether it is generally accepted as an indicator of alcohol or drug impairment [the Frye test or standard for the admissibility of scientific evidence], the Supreme Court concluded,

1. HGN testing satisfies the Frye standard in Illinois.

2. HGN testing is but one facet of field sobriety testing and is admissible as a factor to be considered by the trier-of-fact on the issue of alcohol or drug impairment.

3. A proper foundation must include that the witness has been adequately trained, has conducted testing and assessment in accordance with the training, and that he administered the particular test in accordance with his training and proper procedures.

4. [Testimony regarding] HGN testing results should be limited to the conclusion that a “failed” test suggests that the subject may have consumed alcohol and may [have] be[en] under the influence. There should be no attempt to correlate the test results with any particular blood-alcohol level or range or level of intoxication.

5. In conjunction with other evidence, HGN may be used as a part of the police officer’s opinion that the subject [was] under the influence and impaired.” (Emphasis in original.)

(Emphasis supplied)

What exactly must a police officer do to properly administer the HGN test? The Illinois Supreme Court details the NHTSA procedure in its earlier decision remanding the McKown case to the trial court with instructions to conduct a Frye hearing. People v. McKown, 875 N.E.2d 1029, 1032 (2007):

Because alcohol consumption can cause nystagmus, police officers have been trained to check a person’s eye movements when attempting to determine if a driver has been driving while impaired by alcohol. The National Highway Traffic Safety Association’s (NHTSA) DWI Detection and Standardized Field Sobriety Testing Instructor Manual sets forth the procedure for administering an HGN test in the field. First, the officer is required to ask the subject if he or she wears contact lenses or has any medical impairment that would affect the test results or prohibit the subject from taking the test. If the subject claims to wear hard contacts, or have natural nystagmus or any other condition that may affect the test results, the officer should note the condition but still administer the test if possible. NHTSA DWI Detection and Standardized Field Sobriety Testing Instructor Manual, ch. VIII, at 6-18 (2002).

After these preliminary questions, the officer asks the subject to focus on an object, such as a pen, held just above eye level, about 12 to 15 inches from the subject’s nose, and to follow the object as the officer gradually moves it from side to side.

While conducting the test, the officer looks for six nystagmus “clues,” three in each eye, that, according to the NHTSA Manual, indicate impairment. If four or more clues are present, the subject is determined to have failed the test and be impaired. The clues are (1) lack of smooth pursuit; (2) distinct nystagmus at maximum deviation, meaning any nystagmus exhibited when the eyeball is looking as far to the side as possible; and (3) angle of onset of nystagmus prior to 45 degrees, meaning any nystagmus that occurs before the object reaches a point that the officer determines to be 45 degrees from the center of the suspect’s face. No measuring apparatus is used in the 45-degree test. The officer is then instructed to have the subject perform the walk-and-turn field-sobriety test and the one-leg-stand field-sobriety test, compile the results of the three tests, and then make the decision whether to arrest the subject. NHTSA DWI Detection and Standardized Field Sobriety Testing Instructor Manual, ch. VIII, at 6-18 (2002).

How did Deputy McGuire administer the HGN test? This is how her lawyer described it in the brief she filed in the Court of Appeals:

McGuire should not have administered the test in the first place. McGuire did not testify to any clue Rachel Leatherman gave that she was impaired. She drove in compliance with traffic laws. She produced her license and registration quickly after he asked for them. Her eyes were not watery or bloodshot. Her pupils were not pinpoint or dilated. She was not scratching as some persons who inject drugs might. She did not have a runny nose as is common with some cocaine users. She did not have scabs or needle marks, also common with intravenous drug users. She was not coughing or short of breath; she was not sneezing or sweating. She did not complain of nausea or chest pains. Her face was not flushed. She was alert.

McGuire admitted at the suppression hearing that the HGN result by itself could not provide probable cause. Unfortunately, even assuming arguendo that other indicators had been present, McGuire improperly administered the test.

The National Highway Traffic Safety Administration (NHTSA) is an administrative agency housed within the United States Department of Transportation. NHTSA oversees and regulates all matter related to traffic safety. Since 1977, NHTSA has studied various field sobriety tests in order to develop a standardized set of field sobriety tests. As a result of those tests, NHTSA warned police officers to position DUI suspects so that they do not face blinking cruiser lights or oncoming traffic because the lights can create a false nystagmus (optokinetic nystagmus). Horizontal Gaze Nystagmus: The Science and the Law, A Resource Guide for Judges, Prosecutors and Law Enforcement.

The field video shows that McGuire positioned Rachel Leatherman facing the blinking cruiser lights and the oncoming traffic. The test was neither administered properly nor documented [he never documented what he did and any of the angles when nystagmus occurred; he simply testified that “she failed all six clues”].

McGuire testified that Leatherman told him she had a prescription for Metoprolol because she had hypertension. Documentation for Metoprolol shows that a side effect can be nystagmus. Under those circumstances, McGuire finding “all six clues” should be found legally meaningless.

As if the Court had not even bothered to read her brief, it ignored her powerful and outcome dispositive legal argument without comment.

Instead, the Court focused on Clonazepam.

Finally, the product information for Klonopin (Clonazepam) attached to Leatherman’s brief states that patients taking that medication “should be cautioned about operating hazardous machinery, including automobiles, until they are reasonably certain the Klonopin therapy does not affect them adversely.”

Notice that the warning does not say that Clonazepam causes physical or mental impairment and no one who takes it in any dosage should ever operate hazardous machinery, including automobiles.

Clonazepam is a benzodiazepine that is routinely prescribed as an anti-seizure medication and to control anxiety. In other words, it is prescribed to make people feel normal so they can lead a normal life doing normal things like driving motor vehicles. The warning only applies to the initial dosage that can be adjusted if it’s too strong. There was no evidence in this case regarding the dosage or how long she had been taking it.

The Court’s refusal to mention, discuss, or distinguish her argument regarding the legally invalid HGN test and its reliance on a misinterpretation of the warning on the product insert for Clonazepam borders on mendacity.

The Court of Appeals concluded,

Therefore, the observation of Leatherman’s glassy eyes and odd behavior coupled with her admission that she was taking prescription medication that included a warning about driving was sufficient to provide Deputy McGuire with probable cause to arrest her for DUI.

Well, excuse me. Odd behavior. What odd behavior? Deputy McGuire testified at the suppression hearing that he did not witness any odd behavior, or he would have noted it in his report. There was no reference to any odd behavior in his report and he was the only witness at the suppression hearing.

Apparently, operating a motor vehicle in full compliance with all traffic laws without speeding, weaving or swerving, and quickly pulling over and stopping in the emergency lane beside the road when signaled to do so by a police officer in a marked police vehicle constitutes probable cause to arrest in Kentucky.

As we like to say in the blogosphere, the Court of Appeals has some splainin’ to do.

Author’s note: People v. McKown is an Illinois Supreme Court case and not binding legal precedent in Kentucky. I used it because it is well written and it lays out the NHTSA procedure for conducting the HGN that Crane-Station’s lawyer included with her brief, together with the NHTSA publication that explicitly warns law enforcement officers not to position suspects facing police cruiser lights and oncoming traffic. See: Horizontal Gaze Nystagmus: The Science and the Law, A Resource Guide for Judges, Prosecutors and Law Enforcement. Kentucky follows the same rule, but the opinion is not recent and not well written.

Cross posted at Firedoglake/MyFDL and the Smirking Chimp.


Conspiracy

October 24, 2011

The crime of conspiracy consists of an agreement between two or more people to commit a specific crime and one of the members of the conspiracy commits an act in furtherance of the conspiracy.

For example, let’s revive the characters in our hearsay hypothetical and say Beauregard, who is still married, has a thing for Amanda that resembles a pickle in his pocket, but she loves Peter Piper. In fact she told Beauregard that she had just moved into Peter Piper’s apartment. They are living together and discussing getting married.

Poor Beauregard! Unrequited love is difficult, but not as difficult as being married to Zelda, who is a trust fund baby and a dominatrix to boot, literally. The money is nice, but he loses access to it, per the prenup, if he leaves her. Talk about golden handcuffs. My oh my!

Over a few beers one night, make that quite a few beers, Beauregard confesses his love lust for Amanda to his friend Igor Ivarson and they agree that Peter Piper needs to die.

Amanda and Peter Piper do not know Igor, so Beauregard and Igor agree that Igor will shoot Peter Piper when Peter and Amanda arrive home from work the next day.

Beauregard tells Igor that he has another friend, Bernie the Zipper, who knows how to keep his mouth shut, and Bernie has a knack for obtaining guns with obliterated serial numbers. So, the deal is Beauregard will acquire an untraceable gun from Bernie and give it to Igor. When Igor commits the murder, Beauregard will be with Zelda doing what comes naturally, to her. Thus, he will have an alibi.

Pleased with themselves and their plan, they have another beer, and drink to better days.

Beauregard calls Bernie the next morning and tells him he wants to buy a gun and Bernie being Bernie, he agrees to sell him one that’s untraceable, but it’s going to take some time to find one. Bernie tells Beauregard that he’ll call him when he’s ready to deliver.

Later in the day after he sobers up, Igor calls Beauregard and tells him that what seemed like a cool idea no longer is a good idea. In fact, he thinks the idea is crazy and he just called the cops and spilled the pickles, er beans. They are on their way to pick him up for questioning.

What, if any, are the legal consequences?

First, ask yourself what are the elements of the crime of conspiracy? Elements, by the way, are what a prosecutor must prove beyond a reasonable doubt to obtain a conviction.

Elementary, my dear Watson. Eh, what?

The first element is proof of an agreement to commit a specific crime. Check. Beauregard and Igor agreed to participate in a murder with each of them performing specific acts to make it happen.

Is that it?

Nope, you forgot the overt act. Remember the phone call.

Beauregard called Bernie and told him he wanted to buy an untraceable gun. While the call by itself was not illegal, Beauregard called him to facilitate the commission of the crime. Therefore, he committed an overt act in furtherance of the conspiracy.

Now what?

Well, the crime of conspiracy was completed with the overt act.

Does it matter that the object of the conspiracy was not completed, or that it was impossible to complete, given Igor’s decision to withdraw from the conspiracy and call the police?

No. Impossibility is not a defense.

Does it matter that Igor Ivarson did not know that Beauregard had called Bernie the Zipper before he called the police?

No, if it was reasonably foreseeable that Beauregard would call Bernie, which it was because Beauregard told him that he was going to call him.

By calling the police, did Igor withdraw from the conspiracy in timely fashion so that he is not guilty of conspiracy?

Yes, to withdraw from a conspiracy, a member of the conspiracy must contact the police and inform them of the conspiracy and then stop participating in the conspiracy.

Did Bernie join the conspiracy?

No, he did not know why Beauregard wanted the gun and did not agree to provide it so that it could be used to kill someone. He did not know that there was a conspiracy to kill Peter and did not agree to join it.

Since a conspiracy requires at least two people and Igor withdrew from the conspiracy, can Beauregard be convicted of conspiracy when he is the only member?

Yes, because the crime of conspiracy came into being after the agreement to kill Peter when he committed the overt act in furtherance of the agreement by calling Bernie the Zipper.

Does Beauregard have a defense to the charge based on voluntary intoxication or diminished capacity?

No, because his effort the next morning to contact Bernie the Zipper demonstrated that he recalled what he agreed to do and he followed up on what he agreed to do when he was sober.

The crime of conspiracy is easy to prove. Conspiracies typically begin to unravel when a member of the conspiracy is arrested and agrees to inform on his coconspirators in exchange for leniency. In drug cases, the cooperating coconspirator usually introduces an undercover cop to his fellow coconspirators as an interested buyer or seller of drugs. Several deals are negotiated and then the big bust happens during a deal involving sufficient drugs to trigger minimum mandatory sentences.

Under federal law (the United States Sentencing Guidelines), the sentences are based on the total amount of drugs dealt over the course of the conspiracy and each member of the conspiracy is liable for the whole amount even though they may not have known about some of the deals. In this way, wives and girlfriends who relay messages to their husbands and boyfriends from coconspirators generally knowing that the messages relate to drug dealing, find themselves in a hell of a jam when the bust goes down because they are liable for all the drugs dealt by all members of the conspiracy, even though they knew very little about what was going on.

We also have been seeing federal prosecutions for conspiracy to commit acts of terrorism where the feds have inserted an undercover informant into a group of malcontents who talk about revolution in order to get them to do what they like to talk about doing. The informant facilitates the offense.

Does that constitute entrapment, which is a defense?

Depends on whether the malcontents were predisposed to commit the offense and the undercover informant merely provided them with an opportunity to do what they already were predisposed to do. If so, entrapment is not a defense.

To keep fear alive so that the government can continue to eliminate our civil rights without a peep in protest, the feds continue to seek out malcontents and infiltrate them with instigators to get their periodic busts and the attendant headlines. They operate as close to the line on entrapment as they can and sooner or later they are going to cross it.

Cross posted at Firedoglake/MyFDL and the Smirking Chimp.


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