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.


Sycophant King

November 21, 2011

Occupy Mordor
by Jamison Wieser on flickr Creative Commons
h/t to Crane-Station to save my marriage 🙂

Sycophant King

He favors tailored navy blue suits that look exactly the same

And white shirts decorated with solid silk ties

Perfectly pinched below the Gordian knot

That binds him to the land of Mordor where the shadows lie.

He majored in deception and has picked many a pocket clean

Wearing his practiced smile of starched white teeth

Flashing like a strobe in an after hours club.

He reached the top the old fashioned way —

Kissing ass

Taking credit for other people’s ideas

Daggering them in the back with whispers made of lies.

No one knows what he really thinks and neither does he

Because he thinks like the people he seeks to please.

Now that he’s reached the top there is nothing left to steal

No one with whom to share a thought

Only angry ghosts seeking revenge.

Who shall shed a tear

For the sycophant king?

Cross posted at my regular blog, Firedoglake/MyFDL, and the Smirking Chimp.


Mic-Check, MIC-CHECK!

November 20, 2011

Anaconda
photo by Madaise, Creative Commons on Flickr

After Obama slithers back to the United States from his free-trade sellout of the 99% on behalf of the 1%, he should be welcomed at his first public appearance with the following:

Mic-check;
MIC-CHECK!

I want to be very clear

I WANT TO BE VERY CLEAR

in calling upon the Egyptian authoritie­s

IN CALLING UPON THE EGYPTIAN AUTHORITIES

to refrain from any violence

TO REFRAIN FROM ANY VIOLENCE

against peaceful protesters­.

AGAINST PEACEFUL PROTESTERS

The people of Egypt

THE PEOPLE OF EGYPT

have rights that are universal.

HAVE RIGHTS THAT ARE UNIVERSAL.

That includes the right to peaceful assembly and associatio­n,

THAT INCLUDES THE RIGHT TO PEACEFUL ASSEMBLY AND ASSOCIATION,

the right to free speech,

THE RIGHT TO FREE SPEECH,

and the ability to determine their own destiny.

AND THE ABILITY TO DETERMINE THEIR OWN DESTINY.

These are human rights.

THESE ARE HUMAN RIGHTS.

And the United States

AND THE UNITED STATES

will stand up for them everywhere­.

WILL STAND UP FOR THEM EVERYWHERE.

Mr. President

MR. PRESIDENT

Put your money

PUT YOUR MONEY

where your mouth is.

WHERE YOUR MOUTH IS.

(h/t to commenters Psychonalystus and ex-PFC Chuck @ nakedcapitalism for reminding me of Obama’s speech. See the comment @
http://www.nakedcapitalism.com/2011/11/on-the-narrative-of-pepper-spray-at-uc-davis-or-mike-check-for-president.html
comment 11/20 @12:45 am & 1:22 am)


Vast Amounts of Time

November 18, 2011

Stunned by thunder out of the sun

A woman wearing a hooded black shawl

Kneels and wails

Weeping bloody dew.

She clutches a slippery chunk of bone and flesh

All that is left.

Her child or her husband?

Both were laughing a moment ago.

Waiting at the gate.

He was reaching toward his father to pick him up.

Now they ride the shoulders of shadows,

Somewhere . . .

Their bodies silenced, seared and shredded by drones.

There will be no hungry bellies to feed tonight

Only pain

And time

Vast amounts of time

To paint her dreams with tears.

Cross posted at my regular blog, Firedoglake/MyFDL, and the Smirking Chimp.


OCCUPY

November 17, 2011

Grand Canyon
Under creative commons on flickr by Moyan_Brenn

OCCUPY is the “prime directive” (h/t shekissesfrogs). I dreamed this poem into being last night after writing a short comment to a diary by Frank Lee Speaking.

OCCUPY

We decide

what matters.

We lead

but we are leaderless.

We act

and wait for no one to save us.

We save ourselves.

Sometimes a drop

sometimes a tsunami,

we are everywhere and we are nowhere.

National boundaries do not separate us;

Language does not separate us;

Religion does not separate us;

Skin color does not separate us.

Anything that separates us,

we go around

wear it down

disappear it.

We are becoming . . .

there is no force in the universe that can stop us.

we are an idea taking form

We are becoming . . .

Birthing a new world

No one imagined a year ago.

We are becoming . . .

Let he who doubts the power in a drop of water

leap into the Grand Canyon.

In the beginning there was the word.

We know that word today:

OCCUPY.

Cross posted at my blog Firedglake/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.


Racketeer Influenced And Corrupt Organizations (RICO)

November 9, 2011

The term “criminal banksters” has become an established part of our language to refer to the people who operate the too big to fail (TBTF) multinational Wall Street banks that practice an especially virulent and destructive form of worldwide predatory capitalism in which their profits are privatized to pay multimillion dollar bonuses to their CEOs disbursing the rest to investment managers and bank shareholders while their losses are socialized. That is, covered by the United States taxpayers without their consent.

This relationship basically functions like a super efficient vacuum cleaner sucking all the wealth out of the economy and redistributing it among the wealthiest 1% of the population, and especially the top 0.1%. As such, it imperils the economy and constitutes a clear and present danger to the Rule of Law, particularly the notion of equal justice under law, the Constitution, the Bill of Rights, and democracy itself.

This parasitic relationship came into being during the Reagan Administration when regulatory oversight of the banks relaxed and disappeared as enforcement of the banking laws ended with the exception of an occasional slap on the wrist that amounted to a forgettable mosquito bite-sized chunk of money removed from a massive flow of capital cascading through a fire hose under high pressure.

Coupled with the repeal by the United States of the Glass-Steagall Act that prohibited investment banks from lending money and their development and sale of novel and exotic financial instruments based on real estate mortgage backed securities as a form of insurance with which to hedge bets in the world wide casino, the banks invented and financed a new game to play in which the sky was the limit and the risk of failure all but extinguished. Or so they thought.

This get-rich-quick scheme was founded on the belief that the real estate market in the United States was the most secure investment in the world and the surest way to insure against investment losses in the thrilling world casino was to bundle real estate mortgages together into a package and sell them as insurance. The effort to sell this “insurance” and the demand to purchase it led to a massive systemic practice of inflating real estate appraisals and rounding up and signing up warm bodies to buy real estate financed by so-called “liars loans” in which the information in the loan applications was unverified and in many instances faked by the original lenders. The mortgages securing these loans were rarely, if ever, recorded with the title as required by law. Instead, the banks invented a new recordation system called MERS, which was nothing more than an electronic spreadsheet referencing the original mortgage. Meanwhile, the mortgages, which were basically worthless, were sliced and diced, bundled and rebundled to form worthless securities that were then sold and resold as insurance to institutional and international investors. This was and continues to be the greatest Ponzi scheme in history and sooner or later the music was destined to stop and bring the market crashing down.

Why? Because it created an enormous bubble in the housing market in the form of ever higher divorced-from-reality prices such that investors eventually realized that only hot air supported the value of the real estate.

Millions of homes have been forfeited unlawfully because the banks holding the mortgages had not recorded them properly and could only show that they owned the mortgage by manufacturing fraudulent and perjured loan documents using so called robo-signers to falsely claim to be persons in authority who supposedly signed the original loan documents that no longer existed and were never recorded.

Despite having been exposed for their wrongdoing in many states, and most recently by the Massachusetts Supreme Court, the banks that are saddled with many trillions of dollars of these worthless mortgages persist in seeking the unlawful forfeiture of millions more homes.

President Obama recently said that the banks have not violated any federal laws and cannot be prosecuted.

I am calling bullshit.

The CEOs of the banks can and should be prosecuted for violating the federal RICO statute. See 18 USC 1961, et seq. The banks meet the definition of enterprises and their CEOs engaged in a pattern of racketeering activity within a 10-year period under the federal statute by committing two or more of the crimes listed in the statute, including bribery, extortion, bank fraud, securities fraud, wire fraud, and money laundering.

Each count is punishable by a sentence of up to 25 years in prison and a $250,000 fine. In addition, all proceeds obtained from the pattern of racketeering activity may be seized and forfeited by the government, which can obtain a pretrial order freezing all of the personal assets of the defendants and their banks pending the outcome of the case in order to prevent them from dissipating, transferring, or hiding the assets to prevent their recovery.

Consider the case of Michael Milliken who was indicted for RICO on 98 counts of racketeering and fraud relating to an investigation into insider trading. He was accused of using a wide-ranging network of contacts to manipulate stock and bond prices. He pled guilty to six lesser offenses rather than face spending the rest of his life in prison.

Wikipedia reports:

Milken’s employer, Drexel Burnham Lambert, was also threatened with a RICO indictment under the legal doctrine that corporations are responsible for their employees’ crimes. Drexel avoided RICO charges by pleading no contest to lesser felonies. While many sources say that Drexel pleaded guilty, in truth the firm only admitted it was “not in a position to dispute the allegations.” If Drexel had been indicted, it would have had to post a performance bond of up to $1 billion to avoid having its assets frozen. This would have taken precedence over all of the firm’s other obligations—including the loans that provided 96 percent of its capital. If the bond ever had to be paid, its shareholders would have been practically wiped out. Since banks will not extend credit to a firm indicted under RICO, an indictment would have likely put Drexel out of business.

I have represented people indicted in federal court for violating the RICO statute and plaintiffs in civil litigation who sued defendants under the provisions of the civil RICO statute.

I do not see any problem, other than lack of political will or a desire to profit from the illegal scheme by preventing a prosecution, that would prevent President Obama from ordering his Attorney General to commence an investigation and prosecution.

Every American, regardless of political persuasion, has a fundamental and legitimate interest in assuring that the President and his Attorney General enforce the law.

Nothing less than our livelihoods, lives, and democracy are at stake.

Cross Posted at Firedoglake/MyFDL (http://my.firedoglake.com/mason/2011/11/09/racketeer-influenced-and-corrupt-organizations-rico/) and the Smirking Chimp.


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