Grand Jury decision in Michael Brown shooting will be illegitimate

November 13, 2014

Thursday, November 13, 2013

Good morning:

St.Louis County prosecuting attorney Bob McCulloch, aided and abetted by a compliant news media, is intentionally violating the public’s First Amendment right to know whether Officer Darren Wilson killed Michael Brown in self-defense or murdered him.

Since August 9th when Michael Brown died in the street and six eyewitnesses said he had his hands up when he was shot, there has been probable cause to believe the officer murdered him.

In essence, he is defending the officer and concealing what he is doing by trying Michael Brown in a secret grand jury proceeding where he controls what they get to consider while his minions selectively leak evidence that is spun in a manner favorable to the officer.

For example, Mother Jones reports today,

The autopsy, which was leaked to the St. Louis Post-Dispatch, revealed Brown had been shot in the hand at close range with Wilson, putting into question whether Brown had had his hands up in the air, as some witnesses claimed.

(emphasis added)

The italicized portion of the statement is false. Dorian Johnson, who was with Brown, stated that Brown received a gunshot wound to his hand fired at close range inside the vehicle while the officer was seated holding Brown with one hand and a gun with other. Johnson’s statement is consistent with the gunshot residue found on Brown’s hand and the bullet wound described in the autopsy report.

The wound to Brown’s hand and the presence of the gunshot residue does not make it more or less likely that Brown’s hands were up when the officer shot and killed him after getting out of his vehicle and chasing Brown down the street recklessly squeezing off shots in a crowded residential neighborhood. To suggest otherwise is at best grossly irresponsible.

Let’s return to basics.

The purpose of the grand jury is not to try this case. The purpose is to decide in secret whether there is probable cause to believe that Wilson murdered Brown. If so, the grand jury should indict him for murder. If indicted, the Sixth Amendment would come into play.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

(emphasis supplied)

Last week the Arizona Court of Appeals reminded Maricopa County Superior Court Judge Sherry Stephens about the importance of public trials in the Jodi Arias case, such that despite the defense request to exclude the media and the public from the courtroom, the public has an overriding First Amendment right to know what is going on in her resentencing hearing. That is, the public and the media cannot be excluded.

The public’s right to know what is happening at any given time and what the government is doing is protected by the Freedom of the Press Clause in the First Amendment.

Secret trials are prohibited by the First and Sixth Amendments. Yet, that is exactly what is happening in St.Louis and the news media is aiding and abetting that secret proceeding.

Since the prosecutor determines what evidence to present to the grand jury, the grand jury proceedings are secret, no judge is present, and the rules of evidence do not apply, we do not know what evidence has been presented or the quality of that evidence.

Only a fool would believe the grand jury is getting an objective look at the evidence, given the selective leaks by ‘unnamed officials’ that only favor the officer.

The prosecuting attorney, who has taken an oath to uphold and enforce the law, has violated the public’s right, which is our right to know what is going on.

There is no way that a secret grand jury proceeding can ever substitute for a public trial, ever.

The grand jury’s decision will be illegitimate and not entitled to any deference or respect.


Was the story about Mike Brown’s blood in Darren Wilson’s vehicle selectively leaked

October 20, 2014

Monday, October 20, 2014

Good morning:

Questions surfaced yesterday regarding the sources of the New York Times article on Saturday that has been used to portray Mike Brown as the aggressor in his encounter with Officer Darren Wilson of the Ferguson Police Department. I wrote about the article, Michael Brown’s blood found on officer’s gun, uniform and interior panel of driver’s door.

I suspect the tip about Mike Brown’s blood may be true, however, I think it is a good example of selective leaking motivated by a desire to portray Mike Brown as the aggressor and discredit Dorian Johnson’s statement about the shooting.

As I pointed out yesterday, even if this information is true, it is consistent with Dorian Johnson’s statement that Wilson grabbed Mike Brown’s arm through the open window, pulled him to pin him against the door, drew his gun and shot him in the arm during the ensuing struggle.

Not only is the forensic evidence consistent with Dorian Johnson’s statement, it does not address the fundamental issue in the case; namely, did Darren Wilson shoot and kill Mike Brown after he stopped fleeing, turned around and raised his hands in the universally understood gesture of surrender?

Nevertheless, that did not stop the right-wing-message-machine from claiming that the forensic evidence proves Mike Brown was the aggressor and exculpates Darren Wilson.

The sources of information referenced in the article are not identified, except for this statement in the first paragraph, “according to government officials briefed on the federal civil rights investigation into the matter.”

The second paragraph refers to “forensic tests conducted by the Federal Bureau of Investigation.”

The eighth paragraph states that, “the account of Officer Wilson’s version of events did not come from the Ferguson Police Department or from officials whose activities are being investigated as part of the civil rights inquiry.”

Sometimes, you have to look at what is not said in order to discern the truth.

What was not said is whether the unnamed officials may be biased by virtue of relationship or continued employment by the “officials whose activities are being investigated as part of the civil rights inquiry.”

Given the absence of awareness that the forensic evidence is consistent with Dorian Johnson’s statement, I think we are seeing an example of selective leaking motivated by a desire to influence public opinion by portraying Darren Wilson as the victim.

I suspect the leak was planned and is a good example of what the grand jury is being told and how it will be manipulated to conclude that Darren Wilson should not be charged with a crime.

No indictment would be a crime because none of the eyewitness statements can be reasonably interpreted to support a conclusion that Officer Darren Wilson was in imminent danger of death or serious injury when he fired the fatal shots.

We continue to wait for justice in Ferguson and we are losing patience.

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Pistorius: Gerrie Nel’s savaging of Roger Dixon continues

April 17, 2014

Thursday, April 17, 2014

Good morning:

Gerrie Nel continues his savaging of Roger Dixon, the defense “expert” witness whom Nel exposed yesterday for testifying outside his area of expertise, which is geology. Dixon expressed opinions in pathology, wound ballistics, ballistics, as well as audio and video analysis that contradict the state’s theory of the case as laid out by its expert witnesses during the state’s case in chief.

Not a good idea, Roger, old chap. In fact, it was a really bad idea, unless his idea of fun is to be discredited and humiliated in front of a world audience.

Unfortunately, the field of forensic science is densely populated by all sorts of unqualified people from all sorts of backgrounds eager to make money pretending to be scientists. They lie about their credentials, fake their results, cut corners, tailor their testimony to fit their master’s desire and complain loudly whenever anyone dares challenge their results. What cheek!

Regulatory oversight is about as desirable to them as daylight to a vampire.

Their idea of proficiency testing is to know when they are going to be tested and the correct results before they do the test. If a miracle happens and they get a wrong answer, they get to do it over again until they get it right so that they can testify that they have a perfect record on their proficiency tests.

Their idea of peer review is to have a supervisor, who often is another charlatan who has been around a little longer, glance at their results and sign-off on them.

Most of the laboratory analysts who work for state crime labs are wannabee cops and the prosecutors who rely on them to obtain convictions do not want rock the boat, so they also resist regulatory oversight.

No one knows the ratio of charlatans to legitimate scientists, but I would not be surprised to discover that it exceeds 50%.

Gerrie Nel is a great white shark in a robe, an apex predator with attitude. He is one of the best prosecutors I’ve ever seen and a treat to watch.

Pop some corn, settle in and join Crane-Station and me as the master flogs Roger Dixon before a world audience and a more than a little worried Oscar Pistorius.

Watch his command of language, timing, voice, the way he worries his robe and twirls his reading glasses. Note how he controls a witness by interrupting an unresponsive answer by repeating his question and then asking, “Why won’t you answer my question? “You’re not doing yourself any favors, you know.”

I especially like how he uses pauses to create tension.

If any of you are fledgling trial lawyers, study this man.

And don’t forget to make a donation, by the way, if you have not already done so.

Thanks,

Fred

Session 1

Session 2


Kendrick Johnson and the coming battle of expert witnesses regarding cause of death

November 10, 2013

Saturday, November 9, 2013

Good evening:

Although I have been away all day attending to various matters, my mind has never strayed far from Kendrick Johnson and the coming battle of experts regarding whether his death was accidental, which is the medical examiner’s opinion, or a homicide, which is the opinion held by the forensic pathologist Kendrick’s parents retained to determine Kendrick’s cause of death after his body was exhumed. The outcome of this battle will determine if the inquiry into his death will turn into a criminal investigation in search of a suspect or suspects to be charged and prosecuted or be closed on the ground that it was a tragic accident and not a homicide.

If the medical examiner loses the battle of the experts, I doubt the United States Attorney will prosecute the case because he lacks jurisdiction to prosecute a murder case unless it was a hate crime, which is the same barrier that the Department of Justice is facing in deciding whether to prosecute George Zimmerman. I think an independent special prosecutor will have to be appointed to replace the current prosecutor because his objectivity will have been been compromised by the position he took backing the medical examiner. I believe the same is true for the Lowndes County Sheriff’s Office and the Georgia Bureau of Investigation that employed the medical examiner and endorsed his conclusions. To say that a lot is riding on the outcome of the battle of the experts is a vast understatement.

Without discovery, I cannot predict the outcome. Nevertheless, I know a lot about autopsies and how they are conducted, so I can provide you with an accurate idea of what to expect and a preview of the coming battle.

Right now the dispute appears to concern whether Kendrick sustained a blunt force traumatic injury to the right side of his neck. The forensic pathologist retained by Kendrick’s family concluded that he did and the Georgia Bureau of Investigation’s medical examiner apparently did not find such an injury. He and the GBI have reviewed the report of the second autopsy and they have issued statements saying they stand by his original report.

The dispute likely will be about the detection of subcutaneous bruising in an African American male. Bruising is easier to see on a white person because the skin is a lighter color. The darker the skin, the more difficult it is to spot bruising. In any case where blunt force trauma is suspected, it’s a good idea to cut into the skin with a scalpel and visually examine the tissue beneath the skin for evidence of broken blood vessels. If you find it, the next thing to do is to photograph what you found and attempt to determine the boundaries and shape of the bruised area. Then section the tissue and prepare slides for viewing with a microscope.

Although the medical examiner’s office did the right thing to section organ tissue on slides for preservation and viewing, he may have screwed up by not doing the same thing with Kendrick Johnson’s neck tissue. This will likely be the hotly disputed issue with the medical examiner claiming that the so-called evidence of blunt trauma was really due to a post mortem impact or an advanced state of decomposition, or both.

The loss of Kendrick’s internal organs is inexcusable. If the medical examiner was responsible, that will severely hurt his credibility

The manner in which he conducted the autopsy will be fair game. You will want to check and see if he followed standard operating procedure. For example, the body must first be placed on butcher paper to prevent the loss of trace evidence and then x-rayed to spot bullets, assorted shrapnel and the like, objects in pockets and broken bones.

Then the body must be visually examined and photographed from head to foot, face up and face down, before the clothes are removed and visually examined for evidence of an injury, such as a bullet hole, puncture or cutting and bleeding. Underwear should be examined for ejaculate and discharge. Clothing should be dried if wet and packaged in brown paper bags sealed with the exhibit number, date and initials of the person who packaged the article written across the seal. This is done to document chain of custody and to discourage tampering.

The photographic process is repeated after the clothes have been removed with special attention given to any injuries, including bruising.

It’s vitally important to follow this procedure during every autopsy to avoid missing something important. Nothing should be assumed and every possibility must be considered before it is ruled out.

The failure to spot a significant injury, even if it did not actually cause death, is inexcusable and is the sort of mistake that could result in an erroneous conclusion such as accidental death due to positional asphyxiation instead of a homicide committed by blunt force trauma to the neck disabling the victim followed by rolling the victim up in a mat and stowing it in an upright position with the victim upside down inducing death by positional asphyxiation.

Right now we have a battle between two forensic pathologists. No doubt each side will attempt to sign-up at least one and possibly several experts who will support the conclusion reached by its expert. Does this mean we are likely to hear from Dr. Vincent DiMaio again?

I sincerely hope not, but only time will tell.

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This is our 752nd post. We have put a lot of heart and soul into this website and we get thousands of views each day. We are closing in on 2 million views and 200,000 comments. Yet, scarcely anyone donates any money and it is increasingly difficult to justify the time and effort when only about a dozen people donate a few hundred dollars each month. We do not expect to get rich doing this, but it would be nice to pay our bills.

Please make a donation today, if you have not already done so.

If everyone contributed $5, we would not be reduced to begging.

We seriously need your help to maintain this website.

Thank you,

Fred


Unfinished forensics in Trayvon Martin case

August 2, 2013

Friday, August 2, 2013

Good morning to all of our friends:

I write this morning regarding unfinished forensics with Trayvon’s case and to urge Benjamin Crump to consult with someone who is knowledgeable about forensics before he decides whether to sue George Zimmerman for wrongful death.

Piranha Mom’s comment at 12:09 am inspired me to write this post.

If a civil claim is filed against Zimmerman by Trayvon’s family, Professor Fred and all of us must put together the DEFINITIVE narrative, citing each movement with justification and evidence, and supply it to Trayvon’s family and attorneys.

We know what happened.

We have had the forensic evidence at our fingertips — and we know it all by heart. We were open in our analysis.

We DIDN’T expect we had to provide this to the prosecution.

But they were so full of hubris and the big award Bernie was to receive, and paid little attention to evidence. Bernie even thinks Trayvon took part in the battle, not that he was struggling to get away. If the prosecutor has no faith in the victim, or in the chief witness for the prosecution, what could we expect to get?

The verdict we got.

Won’t make THAT mistake again!

Yes, Piranha Mom is right and here are three glaring examples.

Amy Siewart, the crime lab firearms analyst who examined Trayvon’s sweatshirts, apparently never read the autopsy report or conferred with Dr. Bao regarding whether the bullet holes in the sweatshirts aligned with the entry wound in Trayvon’s chest. Evidently, no one at FDLE or any member of the prosecution team thought about that possibility either.

Yet, that was the first thought that occurred to me when I read that first document dump and LLMPapa was all over that issue too. I wrote about it and he made several videos about it. Both of us discussed the implications.

We even argued with the self-described crime scene expert from Jacksonville, Michael Knox, about the proper conclusions to draw from that evidence.

Massive and inexcusable failure of LE and the prosecutor’s office not to see and comprehend the significance of that evidence.

Massive and inexcusable failure by BDLR not to use the State’s DNA expert, Anthony Gorgone, to clear-up the confusion created by the defense regarding whether rain can wash away DNA and whether packaging Trayvon’s sweatshirt in a plastic biohazard bag would degrade all DNA present, such that it could not be detected with STR/PCR.

Siewart also should have been questioned regarding (1) the unusually strong kickback of a KelTec 9 semiautomatic handgun when fired with one hand, and (2) whether the distance between the two spires on the rear gunsight match the distance between the two pinholes on the tip of Zimmerman’s nose that bled so copiously.

I believe those distances match and Siewart could testify that the gun could have caused the injuries to Zimmerman’s nose, if he fired the fatal shot within a few feet of his face while holding the gun with one hand as Zimmerman described.

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Will the defendant testify or not testify?

July 6, 2013

Saturday, July 6, 2013

Good afternoon:

I write regarding whether the defendant should testify.

I advised my clients not to testify, unless there was some specific reason why I believed they had to testify. That reason typically would involve testifying about something that the jury would not otherwise know unless the client testifies. This is a common occurrence is self-defense cases and why most lawyers will say that a client must testify in such a case.

As Assistant State Attorney Richard Mantei said yesterday, the use of deadly force in self-defense is unlawful unless the defendant reasonably believed that he was in imminent danger of being killed or suffering serious injury when he used deadly force. The reasonableness requirement means that the defendant’s conduct must be evaluated objectively by comparing his conduct to the conduct of a reasonable person in the same situation.

The jury of 6 women, 5 of whom are mothers, will decide whether the defendant acted reasonably.

The defendant is the only person who can tell them whether he believed he was in such danger when he shot Trayvon Martin. According to various witnesses who have testified, he described a situation to them that, if true, probably would objectively constitute such a danger. For the past year, his lawyer, Mark O’Mara has been aggressively selling the defendant’s story on national television and waiving the two bloody cell phone photographs of the back of the defendant’s head and his face as proof that the defendant acted reasonably. I think the national media has uncritically accepted O’Mara’s sales job and shamelessly promoted it.

The critical question, however, is whether the 6 women, 5 of whom are mothers, believe what the defendant told others. They are not required to believe anything he said. I doubt they will believe him, given his many contradictory statements, implausible claims, and the forensic evidence, particularly the DNA evidence, which proves that Trayvon Martin did not hit him 20-30 times in the face, grab his head and repeatedly slam it into a concrete sidewalk, or attempt to smother him by placing his hands over the defendant’s nose and mouth.

I believe the prosecution has proved beyond a reasonable doubt that the defendant provoked the encounter with Trayvon Martin by following him in a vehicle and then on foot after Trayvon attempted to elude him. He hunted him down and attempted to restrain him contrary to a request by the police dispatcher not to follow him and he never identified himself or explained why he was restraining him. Under these circumstances, Trayvon Martin was entitled to use reasonable force to defend himself, escalating to deadly force when the defendant pulled out his gun. Therefore, Trayvon Martin used lawful force to defend himself and the defendant’s use of force was unlawful.

If he were my client, I would tell him that this is my assessment.

If he responded with, “What about my mother identifying me as the person who screamed?” I would say she did not do so unequivocally. Sybrina Fulton did and she was credible.

I would tell him that he gets to make the call regarding whether to testify. Given my assessment that the jury is going to convict him, I would also tell him that his only chance to avoid conviction would be to testify and persuade those 6 women, 5 of them mothers, that they should not convict him.

I would explain the following information.

The burden of proof in all criminal cases in this country is on the prosecution to prove beyond a reasonable doubt that the defendant committed the crime charged. The defendant is presumed innocent throughout the trial and the jury must find him “not guilty” unless the prosecution overcomes the presumption of innocence by proof beyond a reasonable doubt.

The term “beyond a reasonable doubt” is generally defined as such a doubt as would exist in the mind of a reasonable person after fully and fairly considering all of the evidence or lack of evidence. The prosecution is not required to prove guilt beyond all doubt, just beyond a reasonable doubt. Generally, a reasonable doubt is a doubt for which a reason exists, as opposed to a speculative doubt or a mere suspicion. The Florida instruction states that a person is convinced beyond a reasonable doubt if they have an abiding belief in the truth of the charge. An abiding belief is a long lasting belief. The idea is that a juror is convinced beyond a reasonable doubt if they are sure that they will not change their mind sometime in the future due to some doubt they have about the strength of the evidence.

The definition of reasonable doubt is circular, which frustrates jurors who expect and want reasonable doubt quantified. For example, preponderance of the evidence, which is the burden of proof in a civil case, is defined as proving that a proposition is more likely so than not so or supported by more than 50% of the evidence. There is no equivalent percentage of certainty used to define reasonable doubt. I believe most trial lawyers and judges would agree that it’s possible that different juries hearing the same case could reach different conclusions. This is why attorney voir dire during jury selection and the use of cause and peremptory challenges to select a jury are so critically important.

Our legal system guards and protects the sanctity of the jury room and juror deliberations. A jury is never required to explain or justify its verdict. As a result, a jury actually gets to decide what constitutes reasonable doubt, even though they are never told that they have this power. The jury is a reflection of the community and it acts as the conscience of the community when it decides whether the prosecution has proved the defendant’s guilt beyond a reasonable doubt.

I would tell him that if he can express his humanity and touch their hearts, he has a chance at manslaughter.

I would also tell him that he must tell the truth without any bullshit like he uttered on the Hannity Show.

He must admit when he lied, to whom he lied, and why he lied.

He must convince them that he acted out of fright, not anger.

I think he’s going to testify for all the wrong reasons because he has always been able to lie his way out of trouble.

Ain’t going to work this time.

I have one final reason for believing he will testify. His lawyers did not voir dire the prospective jurors on his right to remain silent and not testify. I always did that in my cases to make sure the jurors understood that they could not use his silence against him by presuming he had something to hide.


Judge Debra Nelson denies defense motion for judgment of acquittal

July 5, 2013

Friday, July 5, 2013

Good evening:

Judge Debra Nelson summarily denied a defense motion for a judgment of acquittal this afternoon after the State rested its case.

The first witness called by the defense was the defendant’s mother, Gladys Zimmerman, who identified him as the person who uttered the terrified death shriek that is audible in the background of a 911 call. However, she admitted on cross examination that she had never heard him scream for help or cry out like that.

Her testimony contrasted sharply with testimony this morning by Sybrina Fulton, Trayvon Martin’s mother, who identified him quietly and sorrowfully without equivocation.

The State rested its case after presenting the testimony of Dr. Bao, the Assistant Medical Examiner who performed the autopsy on Travon Martin. He described the gunshot wound as direct from front to back with the hollow point bullet passing through the front and rear wall of the right the ventricle before coming apart and scattering in different directions finally coming to rest in the pericardial sac.

He testified that Trayvon would have been conscious and in pain from 1 to 10 minutes but unable to move or speak during that time. His testimony contradicts the defendant’s claim that Trayvon sat up and said, “You got it,” or “You got me.”

It also makes it extremely unlikely that he did not know that Trayvon was dead before the police arrived, contradicting his claim on the Sean Hannity Show that he did not know that he’d hit Trayvon when he fired the shot and did not find out he was dead until someone told him at the police station later that evening.

The defendant’s claim on the Sean Hannity Show that he has no regrets, would not do anything differently, and everything happened according to “God’s plan,” is chilling in light of today’s testimony.

Judge Nelson recessed the trial for the weekend until Monday morning at 9 am EDT.

Between now and then, the defendant will have to decide whether to testify or remain silent.

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