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:

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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Craig Michael Wood Preliminary Hearing

May 22, 2014

Thursday, May 22, 2014

Good afternoon:

The preliminary hearing is scheduled to start at 1 pm. I do not believe it will be televised or live streamed, so we are going to follow it on twitter. Unfortunately, that means we will be relying on descriptions of what is happening, rather than watching it ourselves.

A preliminary hearing is not a trial and no jury will be present. Do not expect Mr. Wood to testify because defendants almost never do.

The purpose of a preliminary hearing is to have a judge consider evidence presented by a prosecutor, cross examined by defense counsel, and determine whether there is probable cause to believe that the defendant committed the crimes charged. The rules of evidence are relaxed and hearsay is admissible.

If the judge decides there is probable cause as to each charge, the case will continue.

If the judge decides one or more charges are not supported by probable cause, that charge or charges will be dismissed without prejudice, which means the prosecutor can recharge the defendant, if he gets more evidence.

So, pop some corn, settle back and read the tweets and comments.

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Did Craig Michael Wood give a false confession in Hailey Owens case

May 19, 2014

Monday, May 19, 2014

Good morning:

Craig Michael Wood is scheduled for a preliminary hearing on Thursday, May 22nd. The hearing was originally scheduled for April 24th, but the judge reset the hearing at the request of Wood’s attorneys because they wanted additional time to consider two new charges added by the prosecution to the three original charges: first degree murder, kidnapping and armed criminal action.

The two new charges are rape and sodomy. The prosecutor said they are based on recently available information obtained at the autopsy.

As most of my regular readers know, Wood is accused of kidnapping 10-year-old Hailey Owens as she was walking home. There appears to be no doubt that he is guilty because neighbors witnessed the abduction and described the kidnapper’s pickup truck, including providing a license plate number. Police used that plate to identify the registered owner, who turned out to be Wood’s father and he provided them with Wood’s address. They found her dead body a few hours later in the basement of Wood’s home. She had been shot in the back of the head.

I believe all of us suspected a sexual motive for the abduction and the addition of the two charges confirms our worst suspicions. Wood has apparently confessed to the crime, but his statement has not been released to the public.

Because this will almost certainly be a death penalty case, the court has appointed Patrick J. Berrigan and Thomas Jaquinot to represent Wood. Berrigan and Jaquinot are death-penalty lawyers who work for the Capital Division of the Missouri Public Defenders Office. Berrigan has considerable experience handling death cases and an excellent reputation.

They have filed a motion to exclude Wood’s statement asserting that he was drunk, drugged and mentally ill when police took him into custody, that they failed to advise him that he had a right to remain silent and refuse to answer their questions, that they ignored his request to consult with counsel before answering their questions and that they coerced him into providing a statement by promising they would go easy on him, if he cooperated and told them the truth.

Assuming for the sake of argument that the assertions are true, the statement would be inadmissible because it was involuntary and obtained in violation of the Miranda rule.

Whenever the prosecution seeks to use a defendant’s confession against him to prove guilt, one should immediately consider whether the confession contains truthful information. As the video at the beginning of this article demonstrates, false confessions are a reality and one of the causes of wrongful convictions of innocent people.

While the evidence against Mr. Wood appears to be substantial, I recommend against assuming he is guilty. For example, eyewitness identifications are notoriously unreliable and we do not know if someone else might have been involved. Forensic fraud is another major cause of wrongful convictions as are police and prosecutorial misconduct.

Therefore, watch the video and let’s see if there is any evidence that he was coerced into confessing to a crime he did not commit.

Finally, “The System with Joe Berlinger,” which premiered last night on Al Jazeera America, will explore the complexities of the U.S. criminal justice system in an eight-part series that uses real cases to question the effectiveness of laws. Looks to be an excellent documentary. Check it out.

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Rape and sodomy charges added against Craig Wood

April 22, 2014

Tuesday, April 22, 2014

Good afternoon:

The Kansas City Star is reporting today that the prosecution has amended the complaint against Craig Wood adding rape and sodomy charges. Because of this new development, the defense will be asking for a continuance of the preliminary hearing that is set for Thursday.

The prosecution claims that it will not be introducing any of his statements at the preliminary hearing, so the motion to suppress his statements is moot and should be denied.

Horrific case just got much worse.

Craig Michael Wood moves to exclude confession that he killed Hailey Owens

April 19, 2014

Saturday, April 19, 2014

Good morning:

I write today to update readers regarding Craig Michael Wood, 46, who is charged with kidnapping and murdering 10-year-old Hailey Owens in Springfield, MO. I have three new facts to report:

(1) He has new counsel who are experienced death penalty lawyers;

(2) Hailey Owens was sexually assaulted; and

(3) He confessed to police.

Wood has a preliminary hearing scheduled for Thursday, April 24th. The purpose of the hearing is to determine whether probable cause exists to support the charges.

The test for probable cause is whether the evidence introduced at the hearing would warrant a reasonable person to believe that the defendant committed the crimes charged. Judges rarely dismiss charges at preliminary hearings and I expect no deviation from that practice on Thursday. A finding of probable cause will permit the State to keep Wood in custody until a grand jury indicts him. The indictment will set forth the final set of charges.

Defense attorneys usually have not received any discovery before preliminary hearings, so they use them to discover information about the prosecution’s case and lock witnesses into their testimony.

Because child welfare records obtained pursuant to a state FOIA request by the News Leader reveal that Hailey Owens was sexually assaulted, I am expecting the defense will inquire into that subject matter.

I also expect the grand jury indictment will contain a sexual assault charge.

Although the prosecuting attorney, Dan Patterson, has not announced whether he will seek the death penalty, I do not believe there is any doubt whether he will do so. The case is too egregious not to seek it because, if a state is going to have a death penalty, it’s going to use it to execute people who kidnap, sexually assault and murder a child.

Because this will almost certainly be a death penalty case, the court has appointed Patrick J. Berrigan and Thomas Jaquinot to represent Wood. Berrigan and Jaquinot are death-penalty lawyers who work for the Capital Division of the Missouri Public Defenders Office. Berrigan has considerable experience handling death cases and an excellent reputation.

They have already done something unusual that suggests they are diligent and know what they are doing. Yesterday, they filed a motion to suppress (exclude) Wood’s statements to police. The motion is not unusual, but the timing certainly is. These motions are typically filed after indictment, but before trial. I have never seen a motion to suppress filed before indictment and scheduled to be considered at the preliminary hearing.

Do not be surprised if the judge declines to consider it on the ground that he is not a circuit court judge and lacks the authority to do so. If he does consider it, I doubt there is any chance he will grant it, assuming he wants to keep his job.

However, he may permit defense inquiry far beyond the permissible scope of inquiry in a normal preliminary hearing where the scope of inquiry is limited to whether probable cause exists. I suspect that is the real reason defense counsel filed the motion. If so, it was a brilliant move to not only broaden the scope of inquiry, but to lock police witnesses into their testimony about what Wood said and the circumstances that existed when he said it.

Defense counsel assert in the motion that Wood was drunk, drugged and mentally ill when police took him into custody, that they failed to advise him that he had a right to remain silent and refuse to answer their questions, that they ignored his request to consult with counsel before answering their questions and that they coerced him into providing a statement by promising they would go easy on him, if he cooperated and told them the truth.

Assuming for the sake of argument that the assertions are true, the statement would be inadmissible because it was involuntary and obtained in violation of the Miranda rule.

We have been watching Gerrie Nel, an excellent prosecutor, and now we are going to have an opportunity on Thursday to watch an excellent death penalty lawyer, Patrick Berrigan.

You will not want to miss this hearing, so please join us for the live stream on Thursday and check-in with us each day between now and then for updates and reports on other cases.

If you appreciate what we do and have not yet made a donation for this month, please do so today. You will not find more knowledgeable in depth no-nonsense coverage of legal matters anywhere else on the internet.

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Craig Wood preliminary hearing April 2nd at 9 am

March 15, 2014

Saturday, March 15, 2014.

Good evening:

The court scheduled a preliminary hearing for Craig Michael Wood on Wednesday, April 2nd at 9 am.

Although a judge has already reviewed the lead detective’s affidavit summarizing the evidence against Mr. Wood at his initial appearance after his arrest and determined that probable cause (i.e., reasonable grounds) exists to believe that he committed the crimes charged in the complaint, Mr. Wood has a right to revisit the probable cause issue at a preliminary hearing.

A preliminary hearing is not a trial. The hearing will be before a judge without a jury and the rules of evidence will be relaxed.

The issue the judge must decide is the same. That is whether probable cause exists to believe Mr. Wood committed the crimes charged in the complaint. The difference is that the decision must be based on the evidence presented at the hearing by the prosecution, as opposed to the initial appearance when no witnesses testified and the judge based his decision on reviewing the affidavit for probable cause.

Since hearsay is admissible at a preliminary hearing, prosecutors generally call only a few witnesses. In most cases they only call the lead detective who wrote the affidavit for probable cause. He or she is placed under oath and answers the prosecutor’s questions.

The defense gets to cross examine the witness after the prosecution finishes the direct exam.

Defense counsel know they are unlikely to win a probable cause argument, so they use cross examination to discover potential vulnerabilities in the prosecution’s case and to lock the witness down on any facts that may be favorable to the client’s case.

Therefore, you will often hear the prosecutor object to the relevance of any question asked by defense counsel that is not probative of probable cause.

I have already written about a potential vulnerability in the prosecution’s case regarding the first entry into Mr. Wood’s house. He was not present and they apparently did not have a search warrant. They may have lacked probable cause to believe she was in the house and their safety sweep of the premises may have exceeded the limited scope of a safety check.

Questions regarding that subject matter would likely trigger a relevancy objection, since the sole issue before the judge will be whether probable cause supports the charges, not whether police unlawfully entered the house.

Do not be surprised, however, if the grand jury returns an indictment against Mr. Wood before the preliminary hearing. Should that happen, the grand jury would have already determined that probable cause supports the charges in the indictment and there would no longer be any need for a preliminary hearing.


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Theodore Wafer ordered to stand trial for killing Renisha McBride

December 19, 2013

Thursday, December 19, 2013

Good evening:

MSNBC is reporting today that a Michigan judge ordered Theodore Wafer, 54, to stand trial for murder in the second degree and manslaughter for shooting Renisha McBride, 19, to death in the face with a shotgun on November 2nd.

He is white and she was black.

Judge David Turfe said Thursday that based on the evidence presented, Wafer made a poor decision in shooting McBride, and he failed to pursue other “reasonable opportunities to defend himself,” including calling the police for help.

“He chose to shoot rather than not answer the door,” the judge said.

McBride had been drinking heavily earlier in the evening and crashed her vehicle into a parked car approximately a half-mile from Wafer’s house three hours before she knocked on Wafer’s door.

The New York Daily News is reporting:

A witness said McBride was bleeding and holding her head, but that she walked away from the scene before an ambulance arrived. It’s still unclear, at least publicly, what she did between the time of the car wreck and her arrival on Wafer’s porch.

An autopsy found McBride had a blood-alcohol level of about 0.22, more than twice the legal limit for driving. She also had been smoking marijuana.
Her best friend, Amber Jenkins, 18, said they were drinking vodka and playing cards seven to eight hours before the shooting was reported to 911.

Wafer opened the inner door and shot her through the screen door in the face from a distance of about two feet.

Assistant Wayne County Medical Examiner Kilak Kesha testified that her injuries were so severe that he “couldn’t even reconstruct the brain.”

The result of this preliminary hearing is not surprising because she was unarmed and Wafer had admitted to police that he shot her after he opened the door in response to her knocking on it.

The purpose of the hearing was for the judge to determine whether probable cause existed to believe Wafer committed the crimes charged. There was zero chance that the judge would have dismissed the charges on that set of facts.

Defense counsel did what defense counsel all over the country do at a preliminary hearing. They used it to obtain discovery about the prosecution’s case and cross examine their witnesses under oath locking them into their stories.

Defendant did not testify and defense counsel did not put on any witnesses at the preliminary hearing. This is standard operating procedure, so no surprises there. Nothing good can come from locking your client into his story and opening him up to cross examination by a great white shark in a dress before you know if the prosecution has the ace of trumps.

That would be malpractice.

Wafer and his defense team appear to have a choice-of-defense dilemma. He initially told police that he accidentally fired his shotgun. However, his lawyers argued that the judge should dismiss the charges because the evidence introduced at the hearing was consistent with self-defense.

I did not get that impression and neither did the judge. Unless a person is predisposed to believe that an unarmed black female teenager knocking on their door at 4:30 am is a threat and should be shot in the face, and I am talking about white racists, I do not believe the evidence supports a claim of self-defense.

The prosecutor didn’t mess around; She went for the jugular.

Wayne County assistant prosecutor Danielle Hagaman-Clark said it’s “ridiculous” to believe that Wafer was deeply afraid but still decided to open the door and fire instead of first calling the police.

“He shoved that shotgun in her face and pulled the trigger,” Hagaman-Clark said.

And that was the end of that.


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