Arresting officer commits perjury

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:

Preliminary hearing, page 11:

Suppression hearing title page:

Suppression Hearing page 24:

-now, the substance has moved, and it is in plain view.

Suppression hearing page 25:

If you think this is bad, tune in again tomorrow. It gets worse. Much worse.

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The mother, her baby and the man

by Crane-Station for Frog Gravy

Frog Gravy is a nonfiction account of incarceration in Kentucky, in jails and in prison, during 2008 and 2009, and is reconstructed from my notes.

Frog Gravy contains graphic language.

Inmate names are changed, except for nick names that do not reveal identity.

The mother, her baby and the man

McCracken County Jail Cell 107, sometime in February, 2008.

Before my trial, my husband, a retired criminal defense attorney with thirty years of experience, actually tried to help my court-appointed local attorney, who was about as useless as a cat with side pockets.

My husband advised the following:

1. Never ask a question that you do not know the answer to. Each and every question has a reference-at-the-ready in the transcript, wherein the deputy previously testified under oath. He did not quite go so far as to suggest my attorney to say something like, “So. Were you lying then? Or are you lying now?” But it was pretty close.

2. Never allow the witness any wiggle room. Only ask questions that can be answered “yes” or “no.”

Had my lawyer been even marginally competent, and had he any integrity whatsoever, I may not have been given the opportunity to sit in this cell and write this. My husband describes Chris McNeill’s performance as “abysmal.” I believe this is too kind. I believe the man was actually working with and for the prosecution, and at least one Frankfort attorney that I know of does not deny this possibility.

For some reason, I now wear a towel on my head at all times. I have spent hours planning my hat for the Kentucky Derby, still months away, but I will wear jail-issue underpants on my head for the event. Wrapped just right, they look like a white do-rag, and they go quite nicely with the cornrows I am also planning.

I also have a solid plan to obtain an extra pair of socks, and I tell Christie, “Check this out. My sock has a big hole in it, right? So, I ask the guard for new socks, but I wrap the ones with holes into the rest of my laundry. She brings me new socks. I take the elastic threads from the old pair and make them into hair ties. Come to Mama!”

“It won’t work,” says Christie.

“What do you mean it won’t work? This is the rock-solidest plan I’ve ever had. I got this.”

“She’ll take them. She’ll take them home, sew the hole, and bring back the old pair.”

“Who the hell does that shit?”

Sure enough, this is exactly what the guard does. She brings the old, now-sewn socks back. She has a male Class D inmate in tow to do some work in the cell, and they begin a conversation about drug court.

The guard says, “All I know is that drug court is really hard.”

“Drug court sucks,” says the Class D.”I got kicked out. Two of us got five years on one check. I was clean. I am a contractor on the outside. I was called for a UA when I was working in Murray. I told them I’d go to the hospital or the jail in Murray, and give them a urine, and pay for it myself. They refused. they sent me to rehab. The day I was discharged I missed an appointment they never told me about, so they violated me. I’ve got eight years on the shelf.”

“Huh,” I say, adjusting the towel on my head. “Funny. I asked for drug court and they denied me, and just gave me eight years without all the bother. Drug court is a scam though, I agree. They probably did me a favor, denying me drug court. Come to think of it, I should have just killed someone. I’d be doing way less time.”

“So, you took it to trial then,” says the Class D.

“Here it comes,” I say.

“Never take anything to trial in McCracken County,” says the Class D. “Everybody knows that.”

“She didn’t know. Not from here,” Christie offers.

Lea says, “Drug Court’s a buuuunch of bullshit. I got kicked out and now I’m doing a nine-month flop in this hole.”

Down the hall, Harry shouts from his isolation cell, “HELP! Let me OUT! HelpmehelpmehelpmeHELP!”

Sirkka, the 4’8″ 105 lb self-described crack whore is, at times, oddly stuck in infancy, and she asks Lea to rub her legs and burp her like a baby. Lea snaps, “You ain’t no damn baby. You are a grown woman!”

The guard says, to Lea, “Well, I guess McCracken is better than Hickman.”

Lea says, “Fulton’s worse. Ricky’s World.”

“Hickman’s worse,” says the Class D.

“Yeah, Hickman,” says the guard. “It’s a dungeon. My sister was there and they feed you, like hog guts, what’s that called?”

“Chitlins?” I offer.

“Tripe?” says Tina.

“Tripe. That’s it.”

“Is that a gland?” I ask.

“Rub my legs,” says Sirkka to me.

“You need to quit. I’m not a pedophile. Really.”

Lea says, “I never shoulda done drug court.”

Later in the day, I find comfort in writing because I find my friend Tina’s case so upsetting that I do not know what else to do.

As near as I can tell, Tina met a man and moved in with him three weeks later, with her two-year-old son. Over time, the child showed various bruises, but she was unconcerned because “of course he had bruises. he was an active little boy.” At some point, there was a bizarre story about the man doing the Heimlich maneuver on the boy. This resulted in a spleen injury, but it seemed to Tina anyway to be the result of a good-faith effort to prevent the boy from choking.

The man was the boy’s caretaker while Tina was at work. One morning in August she went to work at 6AM and received a call at 10 AM, that the man had called 911. He initially reported that he was wrestling with the baby and there was an accident.

The baby was flown to Vanderbilt (the nearest Level One trauma center), where he was later declared brain dead, with “global” brain injury, a broken neck, a bruised intestine and a damaged spleen. He was removed from life support and became an organ donor.

The man later admitted to the murder, and claimed that he himself was a “sociopath.”

Tina, who was at work that day, is charged with complicity to commit murder.

I become close friends with Tina, here and later in prison. I know her as an artist, a deeply religious and spiritual woman with a sense of humor and capacity for love and caring. She was not only crushed by the violent death of her son, but now she is forever marked as a violent criminal. Exhausted and grief-stricken, she often resorts to balling herself up in the corner of the shower, to moan and cry. For court appearances, the jail staff chains her onto the same chain gang as her son’s confessed murderer, and when she returns to the cell in tears, we console her.

Tina’s public defender, who is useless, allows the Commonwealth to threaten her with 60 years if she does not take a plea. Tina tells me one day, “I can’t fight them. I am done. I am out done.” She takes a plea for seven years on lesser charges, and she will serve 85% of that.