The Double Jeopardy Clause does not prevent charging Darren Wilson with murder

December 18, 2014

Thursday, December 18, 2014

Good morning:

The Double Jeopardy Clause does not prevent charging Darren Wilson with murder.

The Double Jeopardy Clause is in the Fifth Amendment.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The basic purpose of the clause is to prevent a prosecutor from retrying a person who has been found not guilty. To understand double jeopardy, one has to know when jeopardy begins and when it ends. Note that the clause does not prohibit jeopardy; it prohibits double jeopardy.

When does jeopardy begin?

As a matter of law, jeopardy (i.e., the possibility of conviction) does not attach (i.e., begin or start) until the jury has been selected and sworn in a jury trial. It attaches in a bench trial when the first witness has been sworn. Note that jeopardy does not attach when a person is charged with a crime.

When does jeopardy end?

Jeopardy ends when a person has been found guilty or not guilty of a crime.

What happens when someone appeals a conviction and sentence?

If the conviction is reversed by an appellate court, the conviction is vacated or set aside and the case is remanded (i.e., sent back) to the trial court for further proceedings. This means the defendant returns to being in jeopardy again. However, it isn’t double jeopardy because the first state of being in jeopardy has not concluded yet. The prosecution has the option of dismissing the case, retrying the case, or resolving the case with a plea bargain.

Note that there is no limit to the number of times a person can be retried for the same offense, so long as an appeal from the result in each trial results in the conviction being set aside and the case remanded for a new trial.

What about a second prosecution by the federal government after an acquittal in state court?

The Double Jeopardy Clause does not prevent a subsequent prosecution for the same offense by a different sovereign. A good example is drug offenses, although for reasons of comity and proper allocation of resources, federal and state prosecutors have established guidelines generally based on drug quantities to avoid double prosecutions. The feds prosecute the cases that involve larger quantities of drugs with the states handling the lesser quantities.

Can Wilson be prosecuted for killing Michael Brown?

Yes, because jeopardy has not even attached yet.

Nothing except racism and an obvious conflict of interest prohibits McCulloch from charging Wilson with a prosecutor’s information or summoning a new grand jury to indict him.

With or without Witness 40, there never has been a legitimate or credible argument against probable cause to believe Wilson murdered Brown.

With the total collapse of her credibility, however, and the strong probability that the prosecution knew before they put her on the stand that she had not witnessed the shooting, I firmly believe the investigation of the Michael Brown shooting must now expand to include an investigation to determine if McCulloch, his prosecution team and the police officers who testified before the grand jury conspired to obstruct justice by concealing the commission of a murder.

Consider, for example, that Kathy Alizadeh, an assistant prosecutor informed the jury before Wilson testified that he could lawfully shoot and kill a fleeing felon. She also handed out a copy of a Missouri statute that contained that language. However, she did not tell them that the statute was declared unconstitutional in 1985 and replaced with language that limits a police officer’s use of deadly force to stop a suspect fleeing from the commission of a violent felony who reasonably constitutes a danger to others. Although she later provided the grand jury with a corrected version of the statute she did not expressly point out the difference between the two.

The difference was significant because the police dispatcher broadcast a theft of some cigars, which is a misdemeanor shoplift and not a violent felony. In addition, Wilson told his supervisor at the scene of the shooting that he had not heard the dispatcher’s broadcast. Finally, Wilson could not have reasonably believed Brown was a danger to him or to others since he was unarmed and had stopped, turned around and raised his hands in the universal symbol of surrender. There simply is no excuse for a professional prosecutor to give an invalid instruction.

I believe McCulloch, his prosecution team and the police conspired to protect Wilson by obstructing justice and suborning perjury with Witness 40.

I would love to prosecute them for what they did and Darren Wilson for the murder of Michael Brown.


Grand Jury fails to indict NYPD Officer Daniel Pantaleo for killing Eric Garner

December 3, 2014

Wednesday, December 3, 2014

Good evening:

Despite a video showing NYPD Officer Daniel Pantaleo choking Eric Garner to death as he complained 11 times that he could not breathe, a grand jury refused to indict him for murder in yet another gross miscarriage of justice.

Kelly Thomas, Part 2.

This outrage is not acceptable. Our criminal justice system is irretrievably broken.

I am disgusted.

Your thoughts?


Robert McCulloch should be held responsible for using the grand jury to whitewash Darren Wilson

November 26, 2014

Wednesday, November 26, 2014

Good afternoon:

Prosecutor Robert McCulloch’s use of the grand jury to whitewash Officer Daren Wilson’s execution of Michael Brown behind a veil of secrecy is failing miserably and he deserves to bear the consequences for his perversion of justice.

One of the fundamental principles of our system of justice is the right to confront our accusers in a public trial by cross examining them vigorously.

Effective cross examination exposes biases, prejudices and the liars.

Witnesses who testify before a grand jury are rarely cross examined.

Prosecutors and grand juries go together like peanut butter and jelly. Prosecutors point and grand juries accuse.

Here is an example of the tough questions the assistant prosecutor asked Officer Darren Wilson.

Q: Okay, and you say something to them, did they say something to you first?

A: No. You want me to just go with the whole thing?

Q: Sure, go ahead. Let’s start there.

[GJ, Vol.V p. 207]

Go ahead and tell your story, what happened next, and then what did you do? are not are not cross examination.

Here is an example of cross examination.

You just told the members of the grand jury a few minutes ago at Volume V, page 202:

Q: Okay. Did you get any other calls between the time of the sick baby call and your interaction with Michael Brown and Dorian Johnson?

A: While on the sick case call, a call came out for a stealing in progress from the local market on West Florissant, that the suspects traveling toward QT. I didn’t hear the entire call, I was on my portable radio, which isn’t exactly the best. I did hear that a suspect was wearing a black shirt and that a box of Cigarillos was stolen.

Q: And this was your call or you just heard the call?

A: It was not my call. I heard the call.

A: Yes, that is what I said.

Q: And you were under oath when you said that, right?

A: Yes.

Q: And you are as certain about that as you are the rest of your testimony today, is that correct?

A: Yes.

Q: But you told your Sergeant, your direct supervisor, just a few minutes after the shooting that you were not aware of that call and you repeated that to him several times after that during the days after the shooting, didn’t you?

If he admits making the statement, you stare him down until he looks away and then cross your arms and turn your back to the witness for at least 2 minutes until the silence is screaming.

Then you commence the death by a thousand cuts that is the hallmark of every great cross examiner.

If he denies making the statement multiple times to his Sergeant, you put the sergeant on the stand to impeach him.

None of this happened.

And now everyone knows that Robert McCulloch used the grand jury to protect Darren Wilson.

They are marked men. Don’t ever let them forget it.


Transcripts show #DarrenWilson lied to the grand jury

November 25, 2014

Tuesday, November 25, 2014

Good afternoon:

I caught Officer Darren Wilson in a major lie regarding whether he stopped the two boys in response to the radio call about the theft of a box of cigarillos from the Ferguson Market.

First we have a transcript of his grand jury testimony:

Question by Prosecutor Ms. Whirley

Q: Okay. Did you get any other calls between the time of the sick baby call and your interaction with Michael Brown and Dorian Johnson?
A: While on the sick case call, a call came out for a stealing in progress from the local market on West Florissant, that the suspects traveling toward QT. I didn’t hear the entire call, I was on my portable radio, which isn’t exactly the best. I did hear that a suspect was wearing a black shirt and that a box of Cigarillos was stolen.
Q: And this was your call or you just heard the call?
A: It was not my call. I heard the call.
Q: Some other officers were dispatched to that call.
A: I believe two others were.
Q: Was it a call you were going to go toalso?
A: No.
Q: So you weren’t really geared to handle that call?
A: No.
/snip/
A: As I approached them, I stopped a couple of feet in front of Johnson as they are walking toward me, I am going toward them. As Johnson came along my driver’s side mirror I said, “why don’t you guys walk on the sidewalk?” He kept walking, as he is walking, he said, “we are almost to our destination.”
Q: Do you think he used those words destination, we are almost to our destination?
A: Yes, ma’am. He said we are almost to our destination and he pointed this direction over my vehicle. So like in a northeasternly (sic) direction. As he did that, he kept walking and Brown was starting to come around the mirror and as he came around the mirror I said, “well, what’s wrong with the sidewalk?” Brown then replied, um it has vulgar language.
Q: You can say it, say it.
A: Brown then replied, “fuck what you have to say.” And when he said that, it drew my attention totally to Brown. It was very unusual and not expected response from a simple request.
When I start looking at Brown, first thing I notice is in his right hand, his hand is full of Cigarillos. I looked in my mirror, I did a double check that Johnson was wearing a black shirt. These are the two from the stealing.
And they kept walking, as I said, they never once stopped, never got on the sidewalk, they stayed in the middle of the road.
So I got on my radio and Frank 21 is my call sign that day, I said Frank 21 I’m on Canfield with two, send me another car.
I then placed my car in reverse and backed up and I backed up just past them and then angled my vehicle, the back of my vehicle to kind of cut them off, kind of to keep them somewhat contained.

[GJ, Vol. V pp. 202-209]

Second, now we have a transcript of his direct supervisor’s testimony. Sergeant LNU* responded to the scene within minutes after the shooting and was the first person to interview him.

Question by a Prosecutor Ms. Alizadeh

Q: Did he know about it? Did he talk about knowing about the stealing?
A: He did not know anything about the stealing call.
Q: He told you he did not know anything about the stealing?
A: He did not know anything. He was out on another call in the apartment complex adjacent to Canfield Green.
[GJ, Vol. V, pp. 52-53]

Question by a GJ member

Q: Now, my question to you is this. Are you saying that because he told you he didn’t know about it or are you saying that because he didn’t mention It to you when you were talking to him?
A: He did not mention it to me again. I learned about it at a later time.
Q: Has he ever told you, yeah, I didn’t know anything about what happened up at the Ferguson Market?
A: Yes, he told me that in subsequent conversations.
Q: He told you he didn’t know about there being a stealing at the Ferguson Market?
A: Correct

[GJ, Vol. V, p. 58]

The shooting happened on Saturday, August 9, 2014.

Wilson was not questioned by anyone else until after he conferred with his lawyer at the station house.

Both witnesses testified before the grand jury on September 16, 2014, which was 5 weeks after the shooting.

My question is, how can anyone believe Officer Darren Wilson regarding any material issue of fact when he lied about the reason he stopped the boys to portray them as criminal thieves?

*LNU means last name unknown


Methinks Robert McCulloch doth protest too much

November 25, 2014

Tuesday, November 25, 2014

Good morning:

Prosecutor Robert McCulloch’s angry, defensive and crazy rant last night criticizing the media and the internet for allegedly whipping up public support for charging Darren Wilson with a crime for killing an unarmed Michael Brown raising his hands in the universal sign of surrender proved beyond doubt that he is unfit to hold the office of Prosecuting Attorney for St.Louis County.

He believed all along that Wilson was justified in killing Michael Brown and should not have been charged. His obvious bias in favor of Wilson, when considered together with the unlawful release of information that was presented in secret to the grand jury, reveals that Wilson did not need a lawyer because McCulloch was his staunchest defender.

Little wonder that Wilson, the cop who refused to fill out an offense report about the shooting, decided to waive his right to remain silent and testify before the grand jury.

The outcome was rigged from Day One and has no legitimacy.

Look at these photographs of the diminutive Wilson, who is 6’4″ and 210 pounds.

Notice in particular the incredibly nasty suborbital eye socket fracture.

The secret reverse star-chamber proceeding seasoned with selective leaks cooked up by McCulloch should be universally condemned.


Grand Jury Testimony Unlikely To Be Released in Michael Brown Shooting

November 24, 2014

Monday, November 24, 2014

Good morning:

Prosecuting Attorney Bob Culloch has publicly stated that a transcript of the proceedings before the grand jury investigating the Michael Brown shooting will be released, if the grand jury decides not to indict Officer Darren Wilson.

Jason Sickles at Yahoo reports,

For three months, prosecuting attorney Robert McCulloch has said he would seek a rare court order from Judge Carolyn Whittington immediately releasing nearly all evidence should Ferguson Police Officer Darren Wilson not be charged. Grand jury proceedings usually remain secret.

“We’ve asked the judge to do that, and the judge has agreed that she will do that, if there is no indictment,” McCulloch said during a radio interview with KTRS in September. “There’s no probably about it, it will be released.”

On Sunday, however, the court said, “Judge Whittington has entered no such order and has made no such agreement,” according to director of judicial admnistration Paul Fox.

I do not believe Judge Whittington will order the evidence released.

Grand jury proceedings are secret in order to protect witnesses from potential public criticism, condemnation and retaliation. Not even their identities can be disclosed, much less their testimony, especially in an extremely controversial case like this one where threats to kill have been uttered and public officials are preparing for a war to break out. The situation is so tense that Governor Nixon has preemptively declared a state of emergency and called out the National Guard.

Under these circumstances, where public disclosure of witness identities and testimony could be a death sentence, I cannot imagine that a judge would lift the veil of secrecy. I certainly would not risk people’s lives to provide political cover for McCulloch’s decision to try Wilson in secret.

There is only one way to handle this case properly and that is to charge Wilson with murder and accord him a public trial with due process of law.

To be clear, I have never believed McCulloch was operating in good faith.

Since August 9th when Darren Wilson killed an unarmed Michael Brown at noon on a quiet residential street in Ferguson before witnesses who described an execution, he has been working diligently to protect Wilson by shepherding him through a secret grand jury investigation.

I believe he knew the transcripts would not be released to the public, but chose to assure everyone that they would be released in order to place public attention on the judge who would refuse to release them and thereby conceal his misconduct.

Voters need to get rid of this racist schemer next time around.


Tired of waiting for the inevitable whitewash in #MichaelBrownShooting

November 20, 2014

Thursday, November 20, 2014

Good afternoon:

I am tired of waiting for the inevitable. No one with a functioning brain cell is fooled by the bullshit going on in St.Louis.

Darren Wilson executed Michael Brown in Ferguson on Saturday, August 9th and the smoke-and-mirrors show going on pretending there is any doubt about the outcome of the secret grand jury ‘investigation’ changes nothing. They are going to decide not to indict Wilson because the outcome has been rigged since the cops started lying claiming Michael Brown’s body was only 35 feet from Wilson’s SUV when they knew it was 108 feet away.

Brown never bull rushed Wilson and they know it.

Enough with the bullshit.

Time to get down to business.

And that business may involve the KKK because Anonymous is claiming that it has discovered a connection between Wilson and the KKK.

Anonymous hacked into the KKK’s Twitter account and hijacked it. Inquitr reports that Anonymous Vows To Release Evidence Linking Darren Wilson To The KKK.


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