Opening statements in the Zimmerman trial today

June 24, 2013

Monday, June 24, 2013

Good morning:

Opening statements are scheduled to begin at 9 am EDT, but they probably will not start before 9:15 because both sides are going to want to get a ruling from Judge Nelson before opening statements on the defense argument that several statements by the defendant after the shooting to W13 and the police are admissible pursuant to the res gestae exception to the hearsay rule.

She previously granted the State’s motion in limine to exclude all of the defendants statements after the shooting on the ground that they were self-serving hearsay. The statements at issue today were excluded pursuant to that ruling. Therefore, the defense cannot mention them in their opening statement, unless Judge Nelson reverses her earlier decision regarding these particular statements.

They want to mention the statements during their opening statement because GZ said he killed TRayvon Martin in self-defense.

The State likely will oppose the defense motion with an argument similar to the one that I made in my Friday evening post.

I believe opening statements are extremely important because they provide the first and only opportunity for each side to explain their respective theories of the case to the jury and briefly discuss the supporting evidence. Many lawyers compare an opening statement to a road map. If a lawyer makes a good opening statement, jurors will have a good overview of the case and the evidence that will be presented. If a lawyer makes a bad opening statement, the jurors will be confused and not know what to expect.

An opening statement should not exceed 20 minutes. Therefore, clarity and brevity are important. Detail, not so much.

An opening statement is not an argument. For that reason you will hear the lawyers often say, “We expect the evidence will show ABC or XYZ.

If a lawyer starts arguing what the evidence means, you should expect opposing counsel to object.

Prior to opening statements, Judge Nelson will instruct the jury that the remarks of counsel are not evidence.

Evidence consists of the testimony of the witnesses and the exhibits admitted by Judge Nelson.

I am hoping the State will mention what the evidence will show about GZ’s phone calls before and after he killed Trayvon.

Bernie de la Rionda (BDLR) has to decide whether to introduce any of the defendant’s statements during the State’s case in chief or save them for rebuttal.

He could do it either way, but the less he introduces during his case in chief, the more likely GZ will testify.

Here’s the link to the livestream coverage.

http://www.nbcnews.com/video/nbcnews.com/52117880/

______________________________________________________________

Your continuing support allows me to continue posting independent articles like this.

Please consider making a donation to keep independent journalism alive.

Thank you


The Defendant’s Statements will be Admissible by the Prosecution in the Trayvon Martin Murder Case

January 26, 2013

Saturday, January 26, 2013

I predict the defendant’s statements to police will be admissible against him at his immunity hearing and his trial.

The legal test will be whether he knowingly, intelligently and voluntarily waived his rights to remain silent and submit to police interrogation without counsel present. The SCOTUS established this test in Miranda vs. Arizona, 384 U.S. 436 (1966).

The defendant gave multiple statements to police investigators. Each statement was videotaped.

Before answering any questions, he reviewed, initialed and signed the standard form acknowledging that he had been advised of his rights to remain silent and to have an attorney present while being questioned and his decision to waive those rights and submit to questioning.

There is no evidence on the videotapes that the police confronted, threatened or intimidated him in any way and they permitted him to go home after interviewing him the first night. Moreover, there is no evidence that they used any trick, lie or ruse to get him to talk. Therefore, his statements will be admissible pursuant to Miranda.

Some of you have commented that his attorneys might move to suppress his statements on the grounds that he suffered from post traumatic stress disorder (PTSD) and he had been diagnosed with attention deficit hyperactivity disorder (ADHD) for which he was taking Adderall.

These mental disorders normally do not prevent a person from knowing that police are about to question them regarding their possible guilt in committing a crime and they have a right to refuse to answer any questions or insist on having a lawyer present during questioning. So long as they understand what they are being told, they can agree to waive those rights and submit to questioning. Absent persuasive evidence to the contrary from a duly qualified mental health expert, PTSD and ADHD would not prevent a person from knowingly, intelligently and voluntarily waiving those rights.

The defense has not filed a motion to suppress the defendant’s statements and I am not expecting such a motion.

Since the prosecution will want to use the defendant’s statements to prove his guilt, you might see BDLR file a motion asking the Court to rule that he can do that. To win the motion, he will have to convince Judge Nelson that the defendant’s statements were knowingly, intelligently and voluntarily made after advice and waiver of Miranda rights. Lawyers refer to this procedure as laying a proper foundation for the admissibility of the statements.

For the reasons I have stated, I expect Judge Nelson will grant the prosecution motion. The defense either will have no objection or its objection will be overruled (i.e., denied).

Keep in mind that the prosecution can introduce any of the defendant’s statements as admissions by a party opponent, but the hearsay rule prevents the defense from introducing any of them.


Zimmerman: Why No Amount of Lawyers, Guns and Money Will Save Him

September 27, 2012

The role of the lawyers during a criminal trial, whether prosecution or defense, is to present evidence through witness testimony via direct and cross examination, raise appropriate motions and objections at appropriate times, argue what facts have been proven or not proven to the jury, and argue to the judge which legal rules should be applied to resolve disputed issues that come up from time to time.

Lawyers are advocates, not witnesses. Juries are instructed in every criminal case that statements by lawyers are not evidence and may not be considered as evidence.

There are only two exceptions to this rule:

(1) By implication: When a lawyer asks a leading question and the witness agrees or disagrees, the jury may consider the answer as evidence that incorporates the lawyer’s statement in the question asked. As is true of any evidence admitted during trial, the jury gets to decide whether to believe or disbelieve the witness who agreed or disagreed with the statement and how much weight to give to the answer.

(2) By stipulation or agreement: When opposing counsel agree that the jury may consider a particular fact as undisputed. The stipulation then becomes part of the evidence the jury may consider.

Mark O’Mara will tell the jury during his opening statement that the evidence will show that Zimmerman killed Martin in self-defense. During summation, he can argue what facts have been proven or disproven in support of his argument that the prosecution failed to prove beyond a reasonable doubt that Zimmerman did not kill Martin in self-defense. The jury may not consider anything he says as evidence and the same is true for anything the prosecutor says.

Zimmerman’s statements to police and various other witnesses before trial may or may not be admissible at trial according to the rules of evidence.

Subject to the Rule of Completion, the prosecution may introduce any statement he made under the Admission by a Party Opponent Rule. The Rule of Completeness permits the defense to clarify the meaning or intent of any statement offered by the prosecution by completing the statement.

For example, let’s assume a defendant said during a long custodial interrogation at the station house, “Sure I did it. I’ll admit it if it makes you happy and you let me go even though I would be lying if I said that.”

If the prosecution elicited the statement, “Sure I did it,” the defense would be permitted on cross examination to elicit the rest of the statement, “I’ll admit it if it makes you happy and you let me go even though I would be lying if I said that.” The purpose of the rule is to prevent the prosecutor from abusing the Admission by a Party Opponent Rule by introducing bits and pieces of statements that misrepresent what was said.

Statements admitted under the Admission by a Party Opponent Rule are defined as not hearsay by the rules of evidence. Hearsay, of course is a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted.

The declarant is the person who made the statement and, but for the Admission by a Party Opponent Rule, a defendant’s statement would be inadmissible hearsay.

In fact, it is inadmissible hearsay, if the defense offers the defendant’s statement to prove the truth of the matter asserted. In the example above, the defendant’s statement comes in under the Rule of Completion because the prosecutor opened the door by using the admission rule to create a false impression that the defendant had confessed. If the prosecutor had not done that, the statement would be inadmissible hearsay, if the defense offered it to prove the defendant did not commit the crime.

The vast majority of Zimmerman’s statements to police and others before trial are inadmissible hearsay, if offered by the defense to prove the truth of the matter asserted in the statement.

I believe we can reasonably assume that the prosecution will not offer Zimmerman’s exculpatory statements during its case, so the jury will not have heard any evidence of self-defense when the prosecution rests its case.

Because of the hearsay rule, O’Mara cannot get any of Zimmerman’s exculpatory statements admitted to prove the truth of the matters asserted during the defense case, unless they would be admissible pursuant to one of the exceptions to the hearsay rule.

In another post, for example, I mentioned that Martin’s statements to Dee Dee expressing fear and describing what the creepy man was doing would be admissible to prove the truth of the matters he asserted because they are statements expressing an excited utterance and a present sense impression. Those are two exceptions to the hearsay rule.

Zimmerman’s exculpatory statements are not admissible pursuant to those exceptions because he had an opportunity and a motive to be deceptive after he killed Martin.

O’Mara probably will attempt to admit Zimmerman’s statements to the Physician’s Assistant at the family clinic where he sought treatment and permission to return to work. He will argue that Zimmerman’s statements are admissible as statements for purposes of medical diagnosis or treatment, an exception to the hearsay rule.

Unfortunately for Zimmerman, his claim of self-defense was neither relevant nor necessary for medical diagnosis or treatment. Therefore, those statements are not admissible under this exception to the hearsay rule.

In fact, Zimmerman probably will not even get a self-defense instruction, unless he testifies, because there will not be sufficient evidence to support giving a self-defense instruction. O’Mara cannot create a sufficient evidentiary foundation to support instructing the jury on self-defense by what he says during his opening statement because his statements are not evidence.

Therefore, Zimmerman has to testify. If he testifies, the prosecution gets to cross examine him. That means the prosecutor can confront him with every statement he made before trial that is inconsistent with or in conflict with a statement he made on direct examination.

During its rebuttal case after the defense rests, the prosecution can introduce any evidence it has that rebuts evidence presented by the defense during its case. This would include presenting forensic or other evidence that rebuts something Zimmerman said and it also includes evidence of bad character, if the defense opened the door by presenting evidence of good character during its case.

In conclusion, Zimmerman is between the proverbial rock and a hard place because he is unlikely to get a self-defense instruction unless he testifies, but if he testifies, his credibility likely will be destroyed by all of his inconsistent and conflicting statements to police and others.

Damned if he testifies and damned if he does not, George Michael Zimmerman is in such a hell of a jam that no amount lawyers, guns and money will save him from a lengthy prison sentence.


Will George Zimmerman Testify?

August 18, 2012

Many of you have asked questions regarding whether George Zimmerman must testify at the immunity hearing or at trial. Others, particularly Zimmerman supporters, have expressed an opinion that he can prevail without having to testify because he already said everything that needs to be said to the police.

The quick answer is he is not legally required to testify, but he cannot possibly win unless he does testify. How else does he get his self-defense claim into evidence?

Yet, at the same time, he probably cannot win because of his many conflicting statements.

First, every defendant in a criminal case has a 5th Amendment right to refuse to testify and, if they decide not to testify, the jury will be instructed that it cannot assume anything regarding why the defendant chose not to testify.

The reason for this rule is that a defendant may decide not to testify for any number of possible reasons and it would be unfair to allow the jury to speculate as to the “real” reason. In addition, a defendant cannot be punished for exercising a constitutional right.

Second, every defendant has a right to testify, if he decides to do so. The decision to testify or not to testify is his and his alone. The defendant’s lawyer can recommend for or against testifying, but it’s up to the defendant to make that decision.

Third, if the defendant testifies, he can be cross examined regarding everything he said and the Court will grant a prosecutor wide latitude to cross examine.

Therefore, George Zimmerman gets to decide whether he will testify at the immunity hearing and the trial.

Next, let’s take a look at all of his statements to date and group them into two categories: statements to police officials during custodial interrogations and statements to other people.

Statements to police officials during custodial interrogations are admissible at trial,

(1) if he was advised of his 5th Amendment right to remain silent and his 6th Amendment right to contact an attorney and have him present during the interrogation; and

(2) he voluntarily, knowingly and intelligently decided to waive or give up those rights and answer questions.

This is the foundational requirement that the prosecution must satisfy to introduce a defendant’s custodial statement into evidence. It is based on Miranda v. Arizona, 384 U.S. 436 (1966). I have reviewed the discovery and believe all of his custodial statements satisfy the Miranda Rule and are admissible subject to the hearsay rule.

Statements to others, including the Sean Hannity interview, have no foundational argument like Miranda and are admissible, subject to the hearsay rule.

Now we get down to the difficult part of the analysis, which is understanding the hearsay rule.

Let us begin with a definition. Evidence Rule 801(c) defines hearsay as follows:

“Hearsay” is a statement, other than one made by the declarant (i.e., the person who made the statement) while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

For example, if Blue Shenanigans were to testify that George Zimmerman (i.e., the declarant) told her he knew Trayvon Martin was dead before the police arrived at the scene, and the prosecution offered it during its case in chief to prove that he knew Trayvon Martin was dead before the police arrived at the scene (i.e., the matter asserted in the statement), the statement would be hearsay.

Right?

Nope, because even though it meets the definition of hearsay, the rules of evidence carve out a huge exception to the rule that’s called an Admission by a Party Opponent. See Rule 801(d)(2). This rule specifically defines admissions by a party opponent as non-hearsay.

This is the way it works. George Zimmerman is a party to this case because he is the defendant. The party opponent is the State of Florida, which is represented by the Angela Corey and her team of prosecutors.

Pursuant to this rule they can introduce into evidence any statement by Zimmerman that they choose, including his custodial statements to the police, assuming they satisfy the Miranda rule, which they apparently do.

Notice that they are not required to introduce any of his statements and the defense has no say in which statements they introduce and which statements they leave out.

This means that all of the exculpatory statements he made to support his claim of self-defense are inadmissible hearsay, unless the prosecution decides to offer one or more of them as an admission by a party opponent.

Needless to say, the prosecution is not going to do him any favors and introduce any of his exculpatory statements and, since the defense cannot introduce them, the judge will not be able to consider them during the immunity hearing and the jury will never get to hear them at the trial.

But that’s not fair, you say.

That complaint happens in every courtroom across America every day, but it’s the law.

This is why, as a practical matter, George Zimmerman must take the stand and testify.

Can he refer to his exculpatory statements while he is testifying?

No, because they are hearsay.

What happens after he finishes telling his side of the story by answering his lawyer’s questions on direct examination?

The prosecutor who cross examines him will confront him with every statement he made to a police official or to any other witness it knows about that is inconsistent with or contradicts a statement he made while testifying on direct examination.

Given the number of times he has made improbable, inconsistent and contradictory statements, the cross examination could last several days.

I know this because I have done it to witnesses many times.

Cross examination by confronting witnesses with their prior inconsistent statements is one of the most effective and powerful tools a trial lawyer has to utterly destroy a witness.

The key to cross examining George Zimmerman will be not to beat him up so bad that the jury begins to feel sorry for him.

This is why it is so vitally important for suspects to keep their mouths shut when they are questioned by police. They cannot help themselves because their exculpatory statements will be inadmissible hearsay at trial. They can only hurt themselves by saying something that the prosecution uses to damage their case pursuant to the admission-by-a-party-opponent rule.


Zimmerman: A Spectacular Fail!

July 19, 2012

Watt4Bob at Firedoglake posted a comment to my article, Should Mark O’Mara Withdraw as Counsel for George Zimmerman? He asked the following question, which probably is on most everyone’s mind this morning after the Sean Hannity interview of George Zimmerman last night.

I want to ask both Hannity and O’Mara what the hell good they think they did for that pathetic man, but I realize neither of them gives a damn and GZ is oblivious.

I can answer that question with three words:

EXPLOITATION. FOR. MONEY.

I am furious.

I cannot imagine myself, or any criminal defense attorney whom I respect, ever, under any set of circumstances, short of cardiac arrest, loss of consciousness or death, sitting passively beside my client as he denies any regret for killing an unarmed teenager, or anyone else for that matter, because it was “God’s plan” for him to die.

And to follow that statement with an “apology” to the kid’s parents in which he says he’s sorry they had to bury their child because he knows what it would be like to lose one of his as yet unborn children is . . . well,

What is it?

And all of this was delivered in a soft monotonous voice without any detectable trace of emotion as though he were describing doing the laundry.

Are there words that capture the depravity and emptiness of that shell of a human being?

If any of you were concerned whether the prosecution could prove beyond a reasonable doubt that George Zimmerman killed Trayvon Martin while acting with a depraved mind,, you need not worry any longer.

The prosecution must be drinkin’ the bubbly and dancin’ in the street.

I assure y’all, no client of mine would ever have said anything like that on national television with me present because I would have done something, anything, even ripped off my clothes and mooned Amerika in all my naked glory, just to shut him up.

And this appears to have been scripted.

Jesus Christ on a bicycle.

Can there be any doubt who is calling the shots for the defense?

George Zimmerman is representing himself with Mark O’Mara dancing to his tune while playing the role of his attorney.

If anyone still believes George Zimmerman is not a devious and manipulative person, please listen to this audio recording of a jailhouse telephone call when he called right-wing Pastor Terry Jones of let’s-all-of-us-sinners-party-on-the-lawn-burnin’-Korans fame to pray with him for the healing of America and ask him to cancel a pro-Zimmerman demonstration to calm people down.

Hell, listen to it anyway.

Just for the halibut.

(h/t to Crazy1946 @ my website for spotting this recorded conversation and posting a comment about it)


The Court Should Deny George Zimmerman’s Motion for Bail

July 4, 2012

CherokeeNative posted a comment asking me whether Zimmerman’s statements to police and others will be admissible during the trial.

CherokeeNative said the prosecutor mentioned in court recently that the defense will not be permitted at trial to introduce any of Zimmerman’s statements to police and others. Instead, Zimmerman will have to take the stand and testify, if he wants to present his defense.

I did not watch the hearing, but I imagine the prosecutor was expressing some understandable frustration that O’Mara has been trying his case during a bail hearing, instead of specifically explaining why Zimmerman should be permitted to secure his release by posting another bond after conspiring with his wife to materially deceive the court by claiming indigency when they knew he had received approximately $150,000 donated to his PayPal account at his internet site. The prosecutor wants to cross examine Zimmerman about about all of his coded machinations to, in essence, play a shell game with the court to hide the money. No doubt he’s also tired of O’Mara’s constant repetition of Zimmerman’s statements to police and his claims that Zimmerman’s injuries establish the truth of those statements.

He no doubt knows more than we know and we know that Zimmerman lied. Therefore, I can understand his frustration. Nevertheless, he will get his chance, so he will have to be patient.

Okay, put on your waders because we are about to trek through a muddy swamp called the hearsay rule.

First, every oral or written assertion, including non-verbal conduct, if intended as an assertion, that George Zimmerman made outside the courtroom regarding what happened in this case is hearsay, if offered by the defense at a hearing or during the trial to prove that whatever he asserted is true.

Why? Because hearsay is defined in evidence rule 801 as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Second, hearsay is not admissible, unless pursuant to another evidentiary rule or exception.

The effect of these rules means that a defendant in a criminal case cannot introduce at a hearing or at trial a prior statement that he made, if he offers the statement to prove what he asserted in the statement.

Example: A detective is testifying in a bank robbery trial and the defense attorney asks, “My client told you that he was at work that day and did not rob the bank, didn’t he?”

The question is improper because it’s being offered by the defense to prove that the defendant did not rob the bank.

What happens, however, if the prosecutor seeks to offer the statement because it can prove the defendant was not at work as he claimed?

Answer: The defendant’s statement is admissible because it’s an admission by the party opponent, who is the defendant in this hypothetical. See evidence rule 801(d)(2).

The purpose of the admission-by-a-party-opponent rule is to permit a party to introduce statements by the opposing party. To simplify that process, rule 801(d)(2) exempts such statements from the hearsay rule.

Bottom Line: None of Zimmerman’s statements to the police will be admissible at his trial, unless the prosecution offers them. Do not expect the prosecution to do that, unless it is offering them into evidence to prove that he lied.

Note that Zimmerman also made statements to various medical people.

Question: Are those statements admissible?

Answer: Yes, under evidence rule 803(4), provided his statements were made “for purposes of a medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof as reasonably pertinent to diagnosis or treatment.”

Note that we are likely to see issues arise regarding the admissibility of any statement Zimmerman made to a medical person, if the statement contains an assertion about what happened during the confrontation and struggle (i.e., who did what to whom). That portion of his statement will fall outside the boundary of the medical-diagnosis exception to the hearsay rule, if it is not “reasonably pertinent to diagnosis or treatment.”

The purpose of this exception to the hearsay rule is to admit statements that are elicited in response to questions asked by medical personnel to diagnose and treat an injury or illness. The patient/defendant might make any number of statements about any number of things that are not “reasonably pertinent to diagnosis or treatment.” Such statements do not fall within the exception and would be excluded as inadmissible hearsay, if offered to prove the truth of the matter asserted in the statement.

I have no reason to believe that Judge Lester does not know the hearsay rule. Judges have considerable latitude to admit evidence at pretrial hearings, such as a bail hearing, that would not be admissible at a jury trial. Judges are presumed to know the rules of evidence and not base their decisions on evidence that they would not permit a jury to hear.

I believe Judge Lester is giving the defense wide latitude to present whatever evidence it wants to present because most judges I know routinely do that at pretrial hearings. The prosecutor is complaining because that is what prosecutors do to periodically remind a judge that the defense is wandering far afield instead of addressing issues specific to the hearing.

The specific issues I would ask the defense to explain, if I were the judge are:

1. Why did George Zimmerman misrepresent to the court that he was indigent and conspire with his wife, Shellie Zimmerman, to conceal from the court that he had received $155,000 from donors to his internet account?

2. Why should the court not conclude that he is a flight risk and cannot be trusted, given hisirresponsible judgment and egregious behavior in misrepresenting that he was indigent when he knew he was not indigent, and his decision to involve his wife and sister in a scheme to use their bank accounts to hide the $155,000 and to deny any knowledge about that money, if asked under oath, in order to conceal it from the court?

3. Doesn’t George Zimmerman’s irresponsible judgment and egregious behavior in involving members of his family in a scheme to falsely claim indigency, conceal $155,000 in assets, and lie about it, if necessary establish that he is a danger to others, if released.

I would deny the defense motion.


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.


%d bloggers like this: