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.


St.Louis police need to STFU and stop killing people UPDATES (2) BELOW

December 1, 2014

Monday, December 1, 2014

Good morning:

The racist police in St.Louis are whining about five St.Louis Rams receivers who protested the Michael Brown shooting by raising their hands during the pregame introductions. I use the word ‘racist’ deliberately because Jeff Roorda, the spokesperson for the St.Louis Police Officers’s Association called the protesters in Ferguson ‘thugs’ when he threatened reprisals against the team, if it does not discipline the players or they do not apologize.

Roorda said,

I know that there are those that will say that these players are simply exercising their First Amendment rights. Well I’ve got news for people who think that way, cops have First Amendment rights too, and we plan to exercise ours.

I’d remind the NFL and their players that it is not the violent thugs burning down buildings that buy their advertiser’s products. It’s cops and the good people of St. Louis and other NFL towns that do.

Somebody needs to throw a flag on this play. If it’s not the NFL and the Rams, then it’ll be cops and their supporters.

Well, I’ve got news for Jeff Roorda and the St.Louis police: You need to STFU and stop killing people.

UPDATE 1: SB Nation is reporting that the NFL has refused to discipline the players.

The NFL has denied requests from the St. Louis Police Officers Association to discipline a group of St. Louis Rams players who made the “Hands up, don’t shoot” gesture while taking the field on Sunday, according to CNN’s Rachel Nichols.

“We respect and understand the concerns of all individuals who have expressed views on this tragic situation,” NFL Vice President of Communications Brian McCarthy said in a statement.

/snip/

The players explained the decision to reporters after the game, saying it was meant as a sign of support for the community, not an indictment of Wilson.

“We wanted to show that we are organized for a great cause and something positive comes out of it,” Britt told ESPN’s Nick Wagoner. “That’s what we hope we can make happen. That’s our community. We wanted to let the community know that we support the community.”

UPDATE 2: Obama To Ask Congress For $263 Million For Police Body Cameras and Training.

After a day spent meeting with his Cabinet, civil rights leaders and other officials about the mistrust of police in communities of color, President Obama will ask Congress for $263 million in part to equip local police with body cameras.

During a briefing with reporters, a White House official said Obama is also set to announce the creation of a task force on “21st century policing” that will “examine how to promote effective crime reduction while building public trust.”

Obama, the official said, has appointed two co-chairs to the commission: Charles Ramsey, the Philadelphia police commissioner, and Laurie Robinson, a George Mason University professor and a former assistant attorney.


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.


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.


Defense of #Ferguson grand jury as a crucible for truth fails straight-face test

November 18, 2014

Tuesday, November 18, 2014

Good morning:

Paul Callan, a former prosecutor, ironically calls for sanity in his article at the Daily Beast yesterday titled, There’s No Conspiracy in Ferguson’s Secret Jury. I say ‘ironically’ because his argument is based on the fundamental Sixth Amendment rights of an accused to be represented by conflict-free counsel who cross examines prosecution witnesses in a public trial, not a secret grand jury proceeding.

As he well knows, the target of the grand jury investigation is Officer Darren Wilson. Neither Wilson nor his lawyer have a right to be present when the grand jury hears evidence about his case. They have no right to know who the witnesses are or what they say and there is no right to cross examine. There is no judge and the rules of evidence do not apply. The prosecutor decides what the charge or charges should be and he controls what evidence the grand jury gets to hear. He can introduce evidence that would not be admissible in court, such as hearsay or inadmissible civilian and expert opinions. He has no obligation to present exculpatory evidence. For all of these reasons, grand juries have been called star-chamber proceedings. Critics are only half-kidding when they say that a prosecutor can persuade a grand jury to indict a ham sandwich.

The flaw in Callan’s argument is that he assumes that the prosecutor will play the traditional role of defense counsel in a public trial to aggressively, thoroughly and effectively expose the truth in the crucible of cross examination. That assumption is false because a prosecutor’s job is to represent the people by obtaining an indictment to prosecute the defendant, not defend him. If, as in this case, the prosecutor has close ties to police — his father was a white police officer who was killed by a black male and he has a history of sympathy for white cops and antipathy for black defendants — there is a reasonable and legitimate concern that he has a conflict of interest.

The unstated premise in Callan’s call for ‘sanity’ is no one should worry about the outcome of the grand jury because the prosecutor is going to play the role normally entrusted to an aggressive, thorough and effective defense lawyer using cross examination to expose the black eyewitnesses for the ‘liars’ that they are.

The grand jury’s job is limited to deciding if probable cause exists to believe Darren Wilson murdered an unarmed Michael Brown. The answer is “Yes,” and we have known that since August 9th, a few hours after the shooting.

Whether he is guilty or not guilty should be determined by a jury after a full and fair public trial presided over by a judge who correctly applies the rules of evidence.

Read this excerpt from Callan’s call for sanity and let us know what you think.

In a high-profile matter like the Brown case, the prospect of a witness getting his or her name and image in the newspaper or on TV by embellishing the story is for some an irresistible temptation. Repeating an embellished story before a grand jury while under oath is an entirely different matter. The grand jury inquiry affords opportunity to test accuracy of witness accounts. If the witness did in fact witness such a terrible crime, the testimony will survive in the crucible of cross-examination. If true, it will have a discernable [sic] consistency with the forensic evidence. Was the witness really in the time and place to have made the claimed observations? Was the suspect raising his hands in a surrender gesture or could the arm placement have been viewed from a different angle as an aggressive “tackle” gesture? How close was Michael Brown to Officer Wilson when he turned in Wilson’s direction? How much time did the officer have to react? Do the varied autopsy reports support or contradict witness testimony? Did Michael Brown have a motive to violently attack the officer?

Experienced prosecutors can recount case after case of witnesses recanting or altering colorful public statements under cross-examination. Witnesses also make unintentional errors sometimes based on what they have heard from others. Once again focused inquiry by the prosecutor and even the grand jurors who have the right to ask their own questions, can clarify ambiguous or inaccurate points.

By the way, I happen to know a lot about grand jury practice and procedure because I have represented many clients who were targets, subjects or witnesses during my 30-year career as a felony criminal defense lawyer.

To say that a grand jury is an ideal way to discover the truth does not pass the straight-face test because it cannot be said without laughing.


Darren Wilson’s radio calls do not support a claim of self-defense

November 17, 2014

Monday, November 17, 2014

Good morning:

Officer Darren Wilson of the Ferguson Police Department shot and killed an unarmed Michael Brown on August 9, 2014 sometime between 12:02 pm, when he told dispatch, “Put me on Canfield with two. [an apparent reference to stopping Michael Brown and Dorian Johnson] And send me another car,” and 12:03 pm when someone posted a tweet about the shooting.

His radio calls do not support his claim of self-defense.

According to a timeline in the St.Louis Dispatch,

11:53 am

Police dispatcher reports a “stealing in progress” at the Ferguson Market.

11:53:19 am

Dispatcher reports that the suspect stole a box of Swisher cigars and describes him as a black male wearing a white T-shirt running toward QuikTrip.

11:57 pm

The dispatcher reports that the suspect is wearing a red Cardinals hat, a white T-shirt, yellow socks and khaki shorts, and is accompanied by another man.

12:00 pm

Wilson reports that he’s back in service from the sick-baby call. He then asks the officers searching for the thieves – units 25 and 22 – if they need him.

12:00:07 pm

An unidentified officer broadcasts that the suspects had disappeared.

12:02 pm

Wilson says, “21. Put me on Canfield with two. And send me another car.”

Sources have told the Post-Dispatch that Wilson has told authorities that before the radio call he had stopped to tell Brown and his friend, Dorian Johnson, 22, to quit walking down the middle of the street. They kept walking, and he then realized that Brown matched the description of the suspect in the stealing call.

12:02:41 pm

Unit 25 reports that he is about to arrive at Wilson’s location, saying he is “going out on Canfield” and accompanied by the sound of his racing engine.

12:02:48 pm

Unit 22 reports that he has arrived at the scene.

12:23 pm

Someone tweets about the shooting.

My Observations

1) The 911 caller reported a theft of a box of Swisher cigars, which is a misdemeanor shoplift, not a robbery.

2) Wilson’s statement to the dispatcher, “Put me on Canfield with two. And send me another car,” does not indicate why he stopped the two people. For example, he may have intended to issue them citations for jaywalking and he may have called for backup as a precaution because the two boys had disobeyed him. His post-shooting explanation (i.e., that he realized Brown matched the description of the suspect in the stealing call after they ignored his order to get out of the middle of the street) may or may not be true. I suspect he lied about that because he did not fill out an offense report explaining why he decided to stop them and the police chief publicly stated that Wilson did not know they were the two suspects.

3) Wilson shot and killed Brown sometime between 12:02 pm, when he asked for backup, and 12:03 pm, when someone tweeted about the shooting. I suspect it happened before 12:02:41, when the officer in vehicle 25 reported that he was going on Canfield and 12:02:48, when the officer in vehicle 22 reported that he had arrived at the scene and was out of his vehicle. Apparently, neither officer witnessed the shooting, so I am inferring that it happened before they arrived.

4) I am not convinced that Wilson suffered any injuries during his encounter with Brown. If so, they are not apparent in the videos from the police station.

5) I believe the most likely explanation for what happened is Wilson backed-up, stopped and pushed his door open intending to get out and confront the two boys. The door hit both boys and Brown pushed it back hitting Wilson in the head as he was attempting to get out. Wilson lost his temper and reached through the open window with his left hand grabbing and holding on to Brown’s arm as he drew his gun with his right hand and pointed it toward Brown. Brown attempted to prevent Wilson from shooting him but was unsuccessful as one of the two shots injured his right hand. This explanation is consistent with Dorian Johnson’s description of what happened and also consistent with the autopsy report and the presence of gunshot residue on Brown’s right hand.

6) Brown broke free from Wilson’s grip and ran away to avoid being shot a second time. Dorian Johnson also ran.

7) Wilson gave chase squeezing off shots at Brown.

8) Brown realized he was not going to get away, so he stopped, turned around and was raising his hands as he dropped to his knees to surrender.

9) Wilson kept shooting and finished him off as Brown was leaning forward looking at the ground as he dropped to his knees. This version is consistent with Brown’s injuries.

10) Brown’s body was about 100 feet from Wilson’s vehicle, which makes it extremely unlikely that he bull-rushed Wilson.

11) Finally, I do not believe a person who literally ran for his life after having been shot, would suddenly stop fleeing, turn around and bull-rush the shooter.

As I have said many times, there is probable cause to believe that Wilson intentionally shot and killed Brown in the heat of anger.

Wilson should be indicted and tried for murder.

Brown’s family and the people who live in Ferguson deserve no less.


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