What is a “Person of Interest?”

May 26, 2017

The Washington Post and the New York Times reported last week that Donald Trump’s son-in-law, Jared Kushner, is a “person of interest” to the FBI in its investigation of “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” along with “any matters that arose or may arise directly from the investigation.” This includes false statements to investigators (18 USC 1001), obstruction of justice (18 USC 1503) and conspiracy to obstruct justice (18 USC 371).

Kushner is not a “person of interest” because it is a state law enforcement term that the FBI declines to use. The FBI says he is “under scrutiny,” which means he is a person of interest to the investigation, but not a “person of interest.” Confused? As a former criminal defense lawyer with 30 years experience defending people charged with felonies in state and federal courts, I can set you straight.

State law enforcement officials created the term to evade the Miranda rule and federal law enforcement officials declined to play that game.

A confession is powerful evidence of guilt, but only if it is voluntary. Coerced confessions are presumptively unreliable and inadmissible. The line between a voluntary and a coerced confession is indistinct and difficult to define.

To eliminate a well-documented state police practice of obtaining confessions from suspects during seemingly endless confrontational custodial interrogations, the SCOTUS created a new rule in Miranda v. Arizona, 384 US 436 (1966), that required police to warn suspects under arrest that they had a right to remain silent (Fifth Amendment) and a right to consult with counsel before answering any questions (Sixth Amendment). The rule further required police to obtain a voluntary acknowledgment and waiver of those constitutional rights from the suspect before commencing an interrogation. A statement obtained in violation of the rule is not admissible in court.

Many state law enforcement officials were furious about the Miranda rule and determined to come up with a work-around. They eventually decided to instruct police to avoid a situation that might be characterized as a “custodial interrogation” by doing the following:

  1. Refer to the suspect in official reports as a “person of interest” instead of as a suspect;
  2. Instead of placing the suspect under arrest, give him a cigarette and a cup of coffee while engaging him in a conversation that gradually turns into an interrogation, if he doesn’t confess;
  3. When cross-examined by defense counsel, insist that the POI was always free to go, until he confessed.

Jared Kushner is represented by Jamie Gorelick, a former Deputy Attorney General of the United States from 1994-97, during the Clinton administration. She has offered to make Kushner available to be interviewed, accompanied by counsel, of course. The interview will not be a custodial interrogation, so Miranda will not be implicated.

Federal prosecutors and the FBI use the following three categories to describe people they investigate:

  1. Target: a person (or persons) who is suspected of being a major participant in the crime as a boss, organizer or director of others;
  2. Subject: a person who is suspected of participating in the crime, but not as a director or major participant and is regarded as someone to potentially flip into cooperating with law enforcement to make the case against the target and testify against him before the grand jury and at the trial;
  3. Witness: a person who has information about the crime, but is not suspected of committing the crime (also called a fact witness).

Michael Flynn and Paul Manafort have been have been described as “subjects” of the investigation.

“Under scrutiny,” means that FBI investigators believe Kushner’s relationship to Trump (confidant and son-in-law) and his position as a Senior White House Advisor and gatekeeper to Trump (the “Trump Whisperer”) means that he has significant information relevant to their inquiry. The FBI has been following the money. The interview(s) will be wide ranging and include questions about documents. They will ask questions, despite knowing the answers, to determine if Kushner is telling the truth. If the investigators catch him in a lie, it’s a False Statement violation, a felony punishable by up to 5 years in prison pursuant to 18 USC 1001. A lie might also constitute obstruction of justice in violation of 18 USC 1503. If the FBI can prove that he acted with others to obstruct justice, he could be charged with conspiracy to obstruct justice in violation of 18 USC 371. Depending on the evidence the FBI uncovers, he might end up as a witness against the presumptive target of the investigation, the 45th president of the United States.

Finally, Trump’s new idea to set up a “War Room” at the White House, staffed by Kushner, Bannon and Corey Lewandowski, to fight back against leaks and the investigation sounds like a conspiracy to obstruct justice. Terrible idea from a universe far beyond stupid.


Was suspect in Oklahoma State homecoming crash unconscious due to diabetic coma UPDATED BELOW

October 26, 2015

At approximately 10:30 am on Saturday morning in Stillwater, OK, 25-year-old Adacia Chambers drove her vehicle through several barricades, knocked over a parked police motorcycle and plowed into an Oklahoma State University homecoming parade killing four and injuring 47 people. Prosecutors have charged her with driving under the influence of drugs and 4 counts of second degree murder. She will have an Initial Appearance this afternoon in Payne County District Court.

According to KOCO News 5,

Police identified the victims as Nakita Prabhaker, 23, of Edmond, Bonnie Stone, 65, of Stillwater, Marvin Stone, 65, of Stillwater and 2-year-old Nash Lucas, from Stillwater. Nash Lucas’ mother was injured in the crash.

The child died at OU Medical Center.

Prabhaker was an international student at the University of Central Oklahoma. She is from Mumbai, India.

/snip/

Police said five people are in critical condition. Twelve others, including six children, are also hospitalized at six hospitals in Oklahoma City, Tulsa or Stillwater.

Thirty people were treated and released from the hospital including five children.

The Oklahoman is reporting,

“I don’t believe right now that she was intoxicated,” said Chambers’ attorney, Tony Coleman.

“I have deep concerns about her competency at this point. I’m not a psychologist or psychiatrist, but I can tell you she’s suffering from mental illness,” Coleman said.

An expert in alcohol intoxication, Coleman believes that his client suffered a blackout caused by underlying physical or mental problems.

Her boyfriend, Jesse Gaylord, told him that she suffers from diabetes, but is not being treated or medicated for the condition, Coleman said. She also reportedly suffers from insomnia and had not slept for three days before the crash.

Gaylord also reportedly interrupted two attempts by Chambers to slash her wrists, Coleman said, but doesn’t think the incident was intentional or a suicide attempt.

Chambers’ mother also reportedly suffers from bipolar disorder and has been hospitalized in the past due to her illness, Coleman said.

Coleman said he’s met with people who saw Chambers the night before, the morning of and just before the incident. No one saw her drink alcohol or take drugs, he said.

Gaylord told CBS News that Chambers left work at Freddy’s Frozen Custard and Steakburger about a half-mile from the scene early, but he isn’t sure why.

“She’s a really nice girl. Hasn’t shown anything, I mean… I got her up this morning and gave her a hug and kiss and she made it to work,” Gaylord said.

Chambers reportedly left the restaurant a short time after arriving for work. A witness said she appeared to be crying, but was not unsteady on her feet as she walked down a street away from the restaurant, according to the Stillwater NewsPress.

What happened over the course of the next hour leading up to the crash is unknown even to Chambers, Coleman said.

“There’s an area there when she doesn’t remember much of anything,” he said.

She did not remember the events leading up to the crash or the wreck itself, but recalls people pulling her out of the vehicle’s wreckage, Coleman said.

When he met with his client Saturday night, Coleman said Chambers gave “inappropriate” answers to some questions and lacked emotion at moments it would be expected.

“People who know her talk of a different Adacia than the one I met,” Coleman said.

Assuming the information reported is true, Ms. Chambers may have lost consciousness due to diabetic coma. If so, she may not have committed a crime. A person has to know what they are doing in order to be guilty of committing a crime. I am aware of at least one case where a person lost control of his vehicle after blacking out due to the sudden onset of a diabetic coma. I witnessed the accident. The vehicle jumped the curb and struck an unoccupied picnic table about 20 yards away. The driver was hospitalized with injuries from which he eventually recovered. No charges were filed.

A blood sample obtained from Adacia Chambers after she drove through the barriers and into the crowd will be subjected to a toxicological examination to determine whether she had any drugs or alcohol on board.  I do not know if the analysis has been completed. If it comes back, “Hypoglycemic, no drugs, no alcohol,” the prosecution may not have a case. If that is the case, I hope she was given insulin to restore her to a proper blood-sugar content.

At the Initial Appearance* this afternoon, the judge will tell her what crimes she is charged with and advise her of her legal rights. Unless the toxicology results are known and favorable to the defense, her lawyer probably will probably stipulate (agree) to probable cause and reserve argument for release on bond to another time, probably at the next scheduled hearing, which would be a preliminary hearing. If they are favorable, he will move to dismiss for lack of probable cause.

He also has expressed doubt about her mental state and competency. Do not be surprised if the judge orders her to undergo a competency evaluation. A legal proceeding cannot take place unless the defendant is competent. That means she has to be oriented as to time and place, know what the charges are, track what is going on, and be able to communicate with and assist her lawyer to represent her.

This is a tragic, but very interesting case, because of the legal and mental issues that it presents.

UPDATE:

Payne County Special District Judge Katherine Thomas set bond at $1 million and ordered a psychological evaluation for Adacia Chambers. The next hearing will be November 13th.

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*An initial appearance is not an arraignment. She will not be entering a plea. Issues are limited to advising defendant of charges, her rights, reviewing police affidavit for probable cause and deciding whether to set conditions of release or deny bail.


Trouble ahead: Judge dismisses involuntary manslaughter charge against Detroit police officer

October 7, 2014

Tuesday, October 6, 2014

Good morning:

Last Friday Wayne County Circuit Judge Cynthia Hathaway, who presided over the Theodore Wafer trial, dismissed an involuntary manslaughter charge against Detroit police officer Joseph Weekley who shot and killed seven-year-old Aiyanna Jones while serving an arrest warrant for Chauncey Owens at 4054 Lillibridge Street on the eastside of Detroit. She dismissed the charge during Weekley’s retrial. A jury was unable to reach a verdict during his first trial last summer.

The incident took place on May 16, 2010. Wikipedia describes what happened.

On Friday, May 14, 2010, Southeastern High School senior Je’Rean Blake (other reports call him Je’Rean “Blake” Nobles) was shot and killed near the intersection of Mack and Beniteau on Detroit’s east side. By Saturday night, police had identified Chauncey Owens as a suspect in the shooting and obtained a warrant to search 4054 Lillibridge St, where he was believed to be hiding.

/snip/

According to press reports, police were on the scene by 12:40 a.m. on Sunday, May 16, 2010. In an attempt to distract the occupants, police fired a flash grenade through the front window.

Police officers, bystanders, and residents of the home disagreed about the events that followed. According to police, Officer Joseph Weekley was the first one through the door. He pushed his way inside, protected by a ballistic shield. Aiyana Jones’ paternal grandmother Mertilla Jones attempted to grab his gun, causing it to fire. The bullet struck Aiyana. “A woman inside grabbed my gun,” Weekley said. “It fired. The bullet hit a child.”

Mertilla Jones was held overnight and released. She said she reached for her granddaughter when the grenade came through the window, not for the officer’s gun. She said she made no contact with them. Geoffrey Fieger, the family’s lawyer, said the police fired the shot that struck Aiyana from outside the home, possibly through the open front door.

After the shot was fired, Weekley reported to his sergeant that a woman inside had grabbed for his gun. Police arrested Mertilla Jones, administered tests for drugs and gunpowder, and released her Sunday morning. Mertilla said that she reached for Aiyana but had no contact with officers. (At Weekley’s retrial in 2014, it was disclosed that Mertilla’s fingerprints were not found on Weekley’s gun.)

[citations omitted]

The prosecution filed an emergency motion in the Michigan Court of Appeals seeking to set aside her order, but the court denied the request and remanded the case to the trial court yesterday.

The lawyers are presenting their final arguments to the jury today on the only charge remaining, which is reckless use of a firearm, a misdemeanor.

The Detroit Free Press describes what happened yesterday:

The three Court of Appeals judges released their order Monday afternoon.

“Because the oral granting of defendant’s motion (to dismiss the charge) and the trial court’s entry of its written order to this effect took place before any appellate review was able to occur, this Court is barred from reviewing the trial court’s decision,” the court wrote.

“The Court of Appeals correctly decided the issue,” Weekley’s attorney, Steve Fishman, said in an e-mail.

Prosecutors disagreed and filed an emergency motion for reconsideration with the Court of Appeals, which was later denied.

One of the appeals judges, Presiding Judge Michael Talbot, concurred with the decision but added: “Although I find that the trial court erred in form and substance in granting defendant’s motion for directed verdict, we are barred from reviewing that decision.”

I write today to discuss Judge Hathaway’s decision, the prosecution’s appeal and the decision by the appellate court.

When a judge grants a motion for a directed verdict of acquittal on a particular charge in a criminal case, that means that she has decided not to permit the jury to decide whether the prosecution proved that charge beyond a reasonable doubt

A judge cannot do that unless she concludes that, even if she assumes that the evidence introduced by the prosecution is true, together with all reasonable inferences to be drawn from that evidence, that nevertheless no reasonable juror could conclude beyond a reasonable doubt that the defendant committed that offense. This is a stern test, so defense motions for a directed verdict are rarely granted.

I find it difficult to believe that, assuming Mertilla Jones told the truth, a reasonable juror could not have found Weekley guilty of involuntary manslaughter.

Nevertheless, Judge Hathaway has formally acquitted Weekley of involuntary manslaughter and her decision has invoked the Double Jeopardy Clause preventing a retrial on that charge.

When a judge grants a motion for a directed verdict and acquits a police officer in a controversial shooting-death-of-a-child case like this one, she is asking for trouble.

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Jury to resume deliberations Monday in Kelly-Thomas-beating case

January 12, 2014

Sunday, January 12, 2014

Good afternoon:

The Kelly Thomas case was submitted to the jury late Thursday morning after five weeks of trial and 3 1/2 days of final arguments. The jury deliberated Thursday afternoon without reaching a verdict.

The jury was excused until Monday morning when it will resume deliberations.

This is Part 1 of prosecutor Tony Rackauckas’s rebuttal argument (51:46):

Here’s Part 2 (9:17)

Here’s the 33 minute video of the beating:

Meanwhile, check out the Hand of God.

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This is our 848th post in 26 months.

We received only two donations yesterday for which we are very grateful, but we had 666 visitors to the site and 1,358 page views. As I said yesterday, I realize it’s easy to assume others will step in and contribute, but that type of thinking doesn’t work when everyone does it.

We’ve averaged less than 1 donation per day during the past week despite hundreds of visitors per day and thousands of page views. We’re not trying to get rich here, but this just isn’t working out for us.

Fred


Do you trust Shellie Zimmerman?

August 29, 2013

Thursday, August 29, 2013

Good morning:

We have been left dangling by ABC News, which reported yesterday that Christi O’Connor, an investigative journalist in Florida, contacted them and, after disclosing that she had interviewed Shellie Zimmerman

said that during their “stunning” hourlong interview, the acquitted killer’s wife said that her husband has “beaten down her self-esteem,” but she is “looking forward to getting her life back.”

Shellie Zimmerman told O’Connor that she left George after an argument and went to her father’s house on Saturday, the night before the shooting. She said she was not at home on Sunday before the shooting.

If we assume she is telling the truth about that, then we can confirm our suspicion that George lied when he told the police that he and Shellie mentored kids at their house on Sunday afternoon before he started out intending to go to Target to do their weekly shopping. The trip to Target never made any sense anyway, since he only had some change and maxed out credit cards.

Due to excellent work by Tschoupi, Marinade Dave, and LLMPapa we already knew that George lied about spotting Trayvon at Frank Taaffe’s house as he was on his way to Target because Trayvon was sheltering from the rain beneath the roof at the mailboxes and talking to Rachel Jeantel on his cell phone before George even left his house. Either the prosecution never figured this out or they decided not to exploit his lie at trial.

She refused to disclose what they argued about or whether they are still together. When asked if she was disappointed that he did not support her by accompanying her to court for her plea and sentencing, she said, “I always want my husband’s support.”

She said she believed his claim of self-defense and did not believe he profiled and murdered Trayvon because that is “not his way.”

O’Connor knows how to tease:

O’Connor, who is working on a book about the George Zimmerman trial, also hinted that there was evidence that was mishandled, saying that during the sensational trial, “there were so many untruths told.”

“What the jury never heard could have led to a different verdict,” she said.

My take: Since Shellie has not decided whether to move on and get a divorce, I think we need to take most everything she says about George and their relationship with a grain of salt. With the exception of her criticism of his photo-op visit to the KelTec factory, which even O’Mara’s office criticized, her careful choice of words appeared to me to betray a desire to avoid saying anything that might offend him or implicate him in any criminal wrongdoing, including the perjury.

I could not help but feel that I was watching an elaborately scripted performance, from her expensive makeover and bright slash of moistened magenta lipstick to her careful navigation around potentially damaging subject matter.

She remains under his toxic influence and for that reason alone, I cannot accept what she says as true absent independent verification.

What do you all think?

She is an admitted perjurer.

Do you trust Shellie Zimmmerman?


HLN reenactment falsely portrays shooting

June 4, 2013

June 4, 2013

Good afternnoon:

Vinnie Politano and his “expert” death investigator, Joseph Scott Morgan, stumbled badly out of the HLN starting gate with a false reenactment of the shooting that is inexcusable hall-of-shame material. Here’s the video of the reenactment:

Come on, son.

Reenactments are supposed to exactly reproduce the event being reenacted. They are misleading and worthless, if they do not.

This reenactment did not come close to reproducing the defendant’s description of the shooting because he told the police that, after Trayvon sucker-punched him in the nose to prevent him from calling the police and he fell down on his back, Trayvon mounted him in a seated position straddling his body and began raining down blows to his nose and face MMA style before switching to grab the sides of the defendant’s head and repeatedly slam the back of the defendant’s head against the concrete sidewalk. Then, as the defendant began crying out for help, Trayvon attempted to silence and smother the defendant by placing one hand over the defendant’s mouth and the other over the nose. That is when the defendant claims that he felt Trayvon’s hand on his chest sliding toward the gun that the defendant had concealed from view in a holster inside his pants against the back of his right hip. The defendant said he pinned Trayvon’s hand against his chest with the upper part of his right arm and then grabbed the gun with his right hand and fired the fatal shot taking care not to shoot his left hand.

According to the defendant, Trayvon was never standing over him leaning forward in the position taken by Politano. Indeed none of the hitting, slamming and smothering events described by the defendant would have been possible, if Trayvon were in a standing position.

So much for the defendant’s claim that he reasonably believed he was in imminent danger of death or serious injury such that he had to use deadly force to survive the encounter. Call me psychic, but somehow I do not think that is what Politano intended to demonstrate.

According to the defendant, they were in this position with Trayvon on top.

Here’s LLMPapa’s video:

Of course, it would not have been possible for Trayvon to have seen much less reached the gun from this position.

Therefore, we know the defendant was lying.

Since he and his expert ignored the defendant’s statement, what were they attempting to demonstrate?

I believe they were attempting to account for a straight-on shot front to back where the muzzle of the gun was in contact with the hoodie and shirt underneath it, but the fabric was 2 to 12 inches from the entry wound.

May I have a drum roll, please. Time to pull out ye olde trusty sledgehammer and pound a square peg into a round hole.

Yup, Trayvon must have been leaning forward and the fabric was hanging straight down.

Nice try, but no cigar.

The crime lab analyst who examined the sweatshirt and shirt beneath it found that the cloth was stretched at the time the fatal shot was fired and we have independently verified that the holes in the fabric do not align with the entry wound. They are displaced from the vertical in a diagonal direction toward Trayvon’s right hip.

Mere gravity does not account for this displacement.

I will tell you what does, however. The defendant had a grip on the sweatshirt and shirt with his left hand restraining Trayvon from getting away as he took careful aim and fired.

Not coincidentally, this also explains why the defendant said he “aimed” before he squeezed off the fatal shot in order to avoid shooting his left hand.

Politano’s clueless expert reenacted the shooting by holding his fake red gun with both hands, which is contrary to the defendant’s narrative.

Finally, we know the defendant was on top because W18 witnessed the shooting and said he was on top.

Clean heels with wet grass and mud on the toes of the defendant’s boots are not consistent with the defendant’s claim that he shimmied in an atttempt to get out from under Trayvon.

The back of the defendant’s jacket was wet because it was raining, not because he was lying on his back in the grass. A photograph of the back of his jacket taken at the police station did not show any mud or grass present.

Two conclusions can be reached from the evidence. The defendant lied and he was not in imminent danger of death or serious injury when he fired the fatal shot. In fact, he was in control of Trayvon when he killed him.

That is not self-defense.

It is second degree murder.

(H/T to LLMPapa for the video and Ay2Z for the inspiration to write this post)


Zimmerman case is simple: Trayvon Martin acted in self-defense

May 31, 2013

Friday, May 31, 2013

Good morning:

I hope to forever put to rest the following argument: Since the defendant had a right to get out of his vehicle and a right to follow Trayvon, those actions cannot be considered as evidence of guilt.

As I will soon show, that argument makes about as much sense as arguing that the purchase of a gun with intent to kill someone cannot be considered as evidence of premeditation because the person had a right to purchase the gun.

Both arguments fail because a lawful act can be committed to achieve an unlawful result. Yes, indeed. A would-be bank robber can purchase a clunker to use as a getaway vehicle after robbing a bank.

As any lawyer familiar with the law of conspiracy well knows, conspiracy indictments typically allege the commission of lawful acts by co-conspirators in furtherance of objectives of a conspiracy. Thus, simple events like using a cell phone to confirm a scheduled meeting with a co-conspirator are often charged as overt acts in furtherance of a conspiracy.

Therefore, the issue is not whether the act itself was lawful. The issue is what was the actor’s intent when he committed the act.

Nobody would seriously argue that the defendant could not get out of his vehicle and follow Trayvon Martin. He certainly could.

The relevant questions in this case are why did the defendant get out of his vehicle to follow Trayvon Martin and why did he lie about it afterward?

I do not believe the jury is going to have any difficulty figuring out the answers to those questions: The defendant intended to prevent this “asshole” from getting away and he shot him to death when Trayvon resisted. The defendant lied about it afterward because he did not want to go to prison.

Trayvon Martin is the only person who acted in self-defense.

That is basically all there is to this case.

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Fred


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