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#Ferguson: Darren Wilson’s prearrest silence may be admissible

By: Masoninblue Saturday August 23, 2014 10:36 am

Cross posted from Frederick Leatherman Law Blog

Saturday, August 23, 2014

Good afternoon:

BettyKath asked the following question in the comments to yesterday’s post, Grand Jury should indict Darren Wilson because his claim of self-defense is contradicted by autopsy results and all eyewitnesses.
05a.StopOpenSeason.WhiteHouse.WDC.13August2014

Didn’t the Supreme Court rule that maintaining silence before the Miranda warning, i.e. before being arrested, can be interpreted as a sign of guilt?

This is an excellent question regarding the admissibility of prearrest silence and my answer is the subject of today’s blog.

Yes, prearrest silence can be interpreted as evidence of guilt unless the suspect/defendant specifically invokes his fifth amendment right to remain silent. In Jenkins v. Anderson, 447 U.S. 231 (1980), the defendant did not report the killing to the police until he turned himself in to police two weeks later. He told them that he stabbed the victim to death in self-defense. At trial, the prosecutor cross examined him regarding his failure to report the killing and to claim self-defense when it happened. He also commented on his silence in closing argument claiming that it was evidence of guilt.

The Supreme Court of the United States (SCOTUS) affirmed his conviction rejecting his argument that the comments on his prearrest silence violated his fifth amendment right to remain silent. The Court held that his silence was admissible because a defendant must expressly claim his right to remain silent for it to apply.

See also Salinas v. Texas, 133 S. Ct. 2174 (2013).

Pursuant to Jenkins and Salinas, Wilson’s failure to fill out the incident report (i.e., his silence) will be admissible against him at trial unless he expressly refused to do so citing his fifth amendment right to remain silent.

Apparently, he did not do that because the cover sheet is filled out, but the section where his narrative report should be is blank.

If he orally invoked his right to remain silent when he turned in his blank incident report, his prearrest silence will not be admissible.

In any event, the prosecutor doesn’t have to comment on Wilson’s silence to get an indictment because, as I stated yesterday, he can obtain it by merely calling the eyewitnesses and presenting the autopsy report.

Although Wilson’s prearrest silence will not be admissible at trial, assuming he expressly invoked his right to remain silent, we also have to consider whether his oral statements to others that he shot in self-defense will be admissible.

No, they are not admissible because they constitute inadmissible self-serving hearsay.

That leaves Darren Wilson between a rock and a hard place.

He must testify in order to get his ‘bum-rush’ defense into evidence and a self-defense instruction. However, if he testifies, none of the eyewitnesses saw a ‘bum rush’ and if he tells a different story, he can be confronted with his ‘bum rush’ story.

Not an enviable situation to be in even with $225,000 in donations for his defense.

 

Should we tolerate shooting through locked doors in self-defense

By: Masoninblue Friday August 1, 2014 9:03 am

Cross posted from Frederick Leatherman Law Blog

Friday, August 1, 2014

Good morning:

A Pistorius-ügy - mi történt valójában?

Reeva Steenkamp and Oscar Pistorius

With the Theodore Wafer trial on hold until Monday at 9:00 am, we return our attention to Oscar Pistorius.

You Magazine is reporting that he sold his house for R4.5 million ($420,000) to pay his escalating legal bills. The buyer is Louwtjie Louwrens, a Boksburg mining consultant who plans to rent it out.

Prosecution and defense have submitted their written closing arguments and Judge Thokozile Masipa has set aside Thursday and Friday next week for their oral summations.

We are fortunate to have the opportunity to witness a conjunction of two media intensive criminal cases that present the same issue:

Whether a person can justifiably kill another person in self-defense when that other person is on the other side of a locked door.

In the Pistorius case, the other person was his girlfriend, Reeva Steenkamp. Pistorius claims that he mistook her for an intruder after he was awakened by the sound of the bathroom window opening and the door to the toilet cubicle closing.

In the Wafer case, the other person was Renisha McBride, an intoxicated 19-year-old girl who had crashed her car into a parked car about 1 mile from Wafer’s house and walked away from the scene of the accident dazed and bleeding approximately 3 hours earlier. Wafer was awakened by McBride banging on his door. He unlocked and opened his inner front door and fired his shotgun through his locked outer screen door. Wafer first claimed that the gun fired accidentally and later switched to self-defense.

Neither Pistorius nor Wafer said anything to the person on the other side of the door before shooting.

In the Pistorius case, the prosecution claims Pistorius killed Steenkamp in a rage after she locked herself in the toilet cubicle to get away from him during an argument. Then he lied about it to escape responsibility for killing her.

The law of self-defense is similar in both cases. A person may justifiably use deadly force in self-defense, if they reasonably believe they are in imminent danger of death or serious injury.

The word “reasonable” in both cases refers to whether a reasonable person in the same situation as the shooter would have believed he was in imminent danger of death or serious injury.

In both cases, a locked door separated the victim from the shooter. The situation differs in that the victim in the Pistorius shooting could unlock the door whereas the victim in the Wafer shooting could not.

Both victims were unarmed.

Race is a probable factor in the Wafer case. He is white and she was black. Many people believe, myself included, that he would not have feared imminent death or serious injury, if she had been white.

South Africa does not have jury trials. Judge Theokile Masipa will decide the case assisted by her two assessors who can overrule her verdict, if they disagree with her conclusion.

The 12-person jury will decide whether Wafer is guilty or not guilty.

Join us in the comments below and let us know whether you believe we should tolerate shooting through locked doors in self-defense.

Over Easy: #TheodoreWafer Will Have to Testify During Defense Case

By: Masoninblue Wednesday July 30, 2014 4:14 am
A gavel

Wafer will be forced to testify about the death of Renisha McBride.

I will be covering for Crane today. T am updating you on the Theodore Wafer trial

There is no live stream coverage.

For reasons that follow, I believe defense motions to dismiss the charges in the Theodore Wafer trial, after the prosecution rests, will be denied and he will have to testify during the defense case.

The prosecution might conclude its case-in-chief late today, although tomorrow is more likely. I say this because the standard operating procedure for presenting evidence in a murder trial is to close with the medical examiner’s testimony. I see no reason for the prosecution to vary from that practice.

We teach trial lawyers to finish their case with a knockout punch and the best way to do that in a murder trial is to call the medical examiner.

The medical examiner’s opinion regarding cause of death must be based on the evidence obtained during the autopsy. Graphic color photos taken during each step of the autopsy are used to document what the medical examiner did in order to establish the necessary foundation for the opinion regarding cause of death.

Autopsy photographs are gruesome and difficult to look at because of the injuries displayed with their associated trauma. People who have have never seen a dead body are usually traumatized when they look at autopsy photos because a violent death, as opposed to a cleaned-up cinematic version of death presented in film, is graphic, shocking and disturbing. The emotional storm triggered by viewing autopsy photos can be upsetting and difficult to forget.

After the prosecution rests, Judge Hathaway will send the jury to the jury room so that she can hear argument from counsel regarding what I have previously described as a defense “halftime motion” to dismiss the charges. We use the word halftime to describe it because the defense raises it after the prosecution rests and before the defense presents its case.

This motion is a standard practice, regardless of the strength of the prosecution’s case, because a failure to raise it at that time precludes a challenge to the sufficiency of the evidence at a later time. The motion is rarely granted because the prosecution need only have presented some evidence that, if assumed to be true together with all of the reasonable inferences that flow from it, would be enough to support a verdict of guilty. In other words, the motion raises a threshold question by asking the judge to decide if enough evidence has been admitted in support of a particular charge to allow the jury to consider and decide whether the defendant is guilty or not guilty of that charge.

Much of the witness testimony and evidence admitted in the case so far is not very helpful in determining whether Wafer is guilty or not guilty. For example, I do not believe McBride’s intoxication and conduct banging on doors is helpful to deciding Wafer’s guilt or innocence because, if we assume for the sake of argument that it was so loud that everyone in the City of Detroit was awakened by it, Wafer’s use of deadly force would still not be justified.

Why?

Theodore Wafer Did Not Fear Death Or Injury When He Killed Renisha McBride

By: Masoninblue Sunday June 22, 2014 10:47 am

Cross posted from Frederick Leatherman Law Blog

A judge's gavel

An upcoming trial will determine whether the shooting of Renisha McBride was self-defense or murder.

Theodore Wafer did not fear imminent death or serious injury on November 2, 2013 when he opened his locked front door and shot 19-year-old Renisha McBride in the face through a locked screen door with a 12 gauge shotgun, killing her.

She was alone and unarmed.

She had collided with a parked car about a half mile from his house approximately 3 hours earlier and left the scene of the accident before police arrived. No one knows where she was or what she was doing until she started knocking on Wafer’s door around 4:30 am.

Witnesses who saw her at the scene of the accident, described her as dazed and bleeding from an apparent head injury.

The Detroit Free Press reports:

McBride’s blood alcohol level was 0.218%, and marijuana was detected in her system, according to the toxicology report released today by the Wayne County Medical Examiner’s Office.

Wafer is charged with second degree murder. He claims self-defense. The trial, which is expected to last three weeks, is scheduled to start July 21st.

Wafer is white and McBride is black.

Police officers who investigated the crime scene at Theodore Wafer’s residence neglected to seize the screen door, which is one of the most important items of evidence in the case. Fortunately, they photographed it before leaving the scene and returned later to recover it.

The Voice of Detroit explains how that happened:

Wayne County Prosecutor Kym Worthy had to order the Dearborn Heights police, who first released Wafer without charges, to do a more thorough investigation of the case. They did a second crime scene review Nov. 11, during which they discovered a key piece of evidence, the perforated front door screen, in Wafer’s basement.

The exact condition of the screen door is important because the racist right-wing-hate-machine has been spreading a false story over the internet that McBride was ripping the screen door off its hinges when Wafer opened the inner door and shot her in the face, killing her, to prevent her from breaking into his house.

Here’s the police officer’s report describing the condition of the screen door when he arrived at Wafer’s residence in response to Wafer’s 911 call:

Northern most West side door was locked and no obvious sign of tampering to that door (partially collapsed wooden steps leading up to door).

The front entry door was open (no signs of prying, kicking or tampering) and the front screen door was closed/locked. The front screen was popped out with a tear in the screen (Cpl. Zawacki had photographed that upon arrival).

On the carpet near front door lay a Mossberg Model 500A 12 ga. pistol grip pump shotgun, black in color. I unlocked screen door while ME took photograph of shotgun through screen door. ID for Renisha Marie McBride on her person. TOT DHPD at scene. I popped screen back in place (held in loosely by one screwed in tab at the top and rested in the channel at the bottom of storm door) so Cpl Zawacki could photograph it in place with a tape measure, as shotgun blast could have blown screen out of place.

[Emphasis supplied]

Here’s the photograph of the screen door displaying the rip caused by the shotgun blast.

As everyone can plainly see from the officer’s report and the photograph, the door frame was intact, closed and locked when the officers arrived.

Furthermore, here’s a photograph of the inner door and front porch. A peephole is visible in the expected position and a white globe-style porch light is visible above and to the right of the door.

I believe we can reasonably assume that Wafer would have turned on the light, unless it was on, and looked through the peep hole before he opened the door.

Why did he open the door, if he feared imminent death or serious bodily injury?

Why did he claim the gun went off by accident, if he feared imminent death or serious bodily injury?

Where are we 60 years after SCOTUS decided Brown v Board of Education

By: Masoninblue Sunday May 18, 2014 6:54 am

US Supreme Court building - July 1976
Photo of the United States Supreme Court by Don Taylor Creative Commons flickr

Cross posted from the Frederick Leatherman Law Blog

Sunday, May 18, 2014

Good morning:

Yesterday was the 60th anniversary of the SCOTUS decision in Brown v. Board of Education, 347 U.S. 483 (1954).

Chief Justice Earl Warren wrote the unanimous court decision. He said,

These cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware. They are premised on different facts and different local conditions, but a common legal question justifies their consideration together in this consolidated opinion

In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment. In each of the cases other than the Delaware case, a three-judge federal district court denied relief to the plaintiffs on the so-called “separate but equal” doctrine announced by this Court in Plessy v. Ferguson, 163 U. S. 537. Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate. In the Delaware case, the Supreme Court of Delaware adhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools because of their superiority to the Negro schools.

/snip/

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

/snip/

We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment

We have the following comment to consider, in response to this PBS News Hour article, Have we abandoned the goals of Brown v. Board of Education?

What we are seeing today should be more aptly termed separation, not segregation. of course those of us who actually lived through segregation, Selma, and MLK being assassinated, who remember seeing these atrocities on the nightly news; we are glad for the progress that has been made. it is important to describe what is going on today accurately, and it is not segregation by law, it may be de-facto segregation, but let’s call it what it is.

Today’s new segregation is a result of socio-economic circumstances, and more importantly how schools are funded. people get a good address for their kids to go to better schools because schools are generally funded by property taxes, so therefore better neighborhoods have better schools. a solution to better schools for poor children may be found in reforming the way schools are funded, or in revitalizing poor neighborhoods.

What do you think?

Idaho Candidate #HarleyBrown Loves Jesus, Hates Political Correctness & You

By: Masoninblue Friday May 16, 2014 6:54 am

Cross posted from the Frederick Leatherman Law Blog

In our continuing effort to establish ourselves as serious commentators about the end times, Crane and I bring you Harley Brown, a Republican candidate for governor of the great state of Idaho.

Except he really wants to be president. President of what, you ask? Why, the United States, of course. God came to him in a vision while he was living in Fat Jack’s basement and told him that he wants him to be President of the You-Nighted-States.

And you know what?

He’s got a letter from an African Bishop that says that’s what God wants.

What does that have to do with running for governor of Idaho, you ask?

Simple, you moran. He needs the practice.

So let it be written.

So let it be done.

Here’s Harley Brown, as described by the New York Daily News.

‘I don’t like political correctness. Can I say this? It sucks! It’s bondage,’ Brown, who had a cigar firmly placed into his shirt pocket the whole time, told the cameras.

‘I’m going for the vote of the real people out there, not these bondage-type who don’t have a clue about picking up strangers at night and hauling them God-knows-where,’ he added.

After claiming he had ‘a Master’s in raisin’ hell,’ he told viewers his plan to seize power.

‘You bind those evil spirits behind the feds with the blood of Jesus, the name of Jesus, the power of entombment of the Holy Spirit, the power of agreement, the word of God. Take air superiority, and then roll in with your tanks on the ground, like … lawsuits. Blitzkrieg!’

Yumpin’ Yiminy,

Only in America.

Willful Ignorance is A Serious Threat to Human Survival

By: Masoninblue Thursday May 15, 2014 11:25 am

Cross posted from the Frederick Leatherman Law Blog

A dunce cap on a stool in a corner.

Willful ignorance endangers human survival.

I believe willful ignorance is a serious threat to human survival and we need to do something about it.

I also believe religious fundamentalists, racists, people who worship authority while demonizing those who do not, global-warming and climate-change deniers, people who exploit others for profit, and the right-wing-hate-machine form a category 5 hurricane of dense stupidity that we must penetrate and dissipate with light and love or perish.

Consider three examples:

(1) Al Jazeera reports: On Sunday in Khartoum, Sudan, Mariam Yahia Ibrahim Ishag, 27, was sentenced to death by hanging for committing the crime of apostasy by marrying a Christian man. She was also convicted of adultery and sentenced to 100 lashes because the Islamic court does not recognize her marriage and she is eight months pregnant pregnant with her husband’s child. The court gave her until today to agree to leave her husband and renounce her Christian faith, but she refused. She told the judge,

I am a Christian and I never committed apostasy.

The judge imposed this willfully ignorant, bizarre and inhumane decision because sharia demands it, even though she was raised by her Christian mother and considers herself a Christian. Her father was Muslim and absent from her life. The sentence will be carried out after the child is born.

The goddess Ma’at is not amused by this fool’s effort to do justice.

(2) The Business Standard reports on a new study published today in Nature that documents a poleward shift of 33 to 39 miles per decade over the past 30 years of the geographical location where tropical cyclones reach their maximum intensity. This shift increases the probability and associated risk of extreme damage caused by winds, surges and floods to heavily populated coastal cities.

This unsettling news must be considered together with the recently reported news by scientists at NASA and the Jet Propulsion Laboratory that the meltdown of the West Antarctic Glacier is an unstoppable chain reaction that will raise world sea level.

A new study by researchers at NASA and the University of California, Irvine, finds a rapidly melting section of the West Antarctic Ice Sheet appears to be in an irreversible state of decline, with nothing to stop the glaciers in this area from melting into the sea.

The study presents multiple lines of evidence, incorporating 40 years of observations that indicate the glaciers in the Amundsen Sea sector of West Antarctica ‘have passed the point of no return,’ according to glaciologist and lead author Eric Rignot, of UC Irvine and NASA’s Jet Propulsion Laboratory in Pasadena, California. The new study has been accepted for publication in the journal Geophysical Research Letters.

These glaciers already contribute significantly to sea level rise, releasing almost as much ice into the ocean annually as the entire Greenland Ice Sheet. They contain enough ice to raise global sea level by 4 feet (1.2 meters) and are melting faster than most scientists had expected. Rignot said these findings will require an upward revision to current predictions of sea level rise.

‘This sector will be a major contributor to sea level rise in the decades and centuries to come,’ Rignot said. ‘A conservative estimate is it could take several centuries for all of the ice to flow into the sea.’

Meanwhile, a willfully ignorant, bizarre and inhumane Marco Rubio announced this week that he does not believe in global warming or climate change and he’s ready to be president:

Oscar Pistorius Ordered to Undergo Psychiatric Evaluation

By: Masoninblue Wednesday May 14, 2014 7:19 am

Cross posted from the Frederick Leatherman Law Blog

Welcome to The Game Within The Game in which I explain why lawyers and judges are making certain strategic decisions.

Oscar Pistorius greeting fans on the track after a race

Judge Masipa granted a prosecution request ordering Oscar Pistorius to undergo psychiatric evaluation.

Judge Masipa has granted a prosecution request to order Oscar Pistorius to undergo a comprehensive psychiatric evaluation by a panel of state experts. The evaluation will take place over a 30 day period at a state institution. The trial will be suspended until the evaluation has been completed.

Pistorius will not be held in custody during the 30 day period.

Prosecutor Gerrie Nel requested the evaluation after Dr. Merryll Vorster, a defense psychiatrist, testified that Pistorius suffers from General Anxiety Disorder (GAD), a mental health disorder defined in the DSM V. She described the disorder as a pervasive state of anxiety that began when his legs were amputated below the knees at the age of 11 months, was exacerbated by his mother’s death at age 14, and continues to this day.

She said it manifests as a heightened fear of crime and obsession with personal security and guns with which to protect himself. She also said it likely contributed to his mistaken perception that an intruder was present when he heard a window slide and the toilet door slam, his decision to confront rather than flee from the intruder, and his decision to shoot through the toilet door without attempting to decide who was in the toilet cubicle before he squeezed the trigger.

The prosecution’s theory of the case is that Pistorius invented the story about an intruder to conceal that he lost his temper during an argument with Reeva Steenkamp and intentionally killed her when she threatened to leave him.

Until Dr. Vorster testified, the defense had not argued or presented any evidence to explain why Pistorius might have mistakenly believed that an intruder was in the toilet cubicle. Assuming his version of events that night is true, her testimony potentially bridges the gap between a normal person’s reaction to the sounds he heard and his apparent overreaction. That is why Gerrie Nel asked Judge Masipa to suspend the trial and order the 30 day observation and evaluation.

Judge Masipa granted his request explaining that, because she is not a mental health expert, she is not equipped to determine if Dr. Vorster’s diagnosis is correct and what role his mental state may have played in his perceptions and decisions that night. The evaluation will assist her to make that determination and that is why she ordered it.

I suspect her decision should be filed in the better-to-be-safe-than-sorry category because Gerrie Nel savaged Pistorius on cross examination catching him in several material lies that substantially increase the probability of his guilt, so much so that his GAD may satisfactorily explain why he killed her (i.e., because she was going to leave him) and why he offered such a lame excuse (i.e., yee olde intruder) to cover-up what he did. Consider it a form of insurance.

While the referral for observation may yield information that helps Pistorius, it’s more likely that it will not and in the end justice will appear to have been done, as no stone will have been left unturned leaving no credible argument that Pistorius was the victim of a railroad job.