Tig
Fucktangular
A floater post of a different nature.
Remember that little map of Baltimore?
- Thread starter Coralkong
- Start date
A floater post of a different nature.
Tig
Fucktangular
Exactly. The "court of public opinion" needs little or no evidence yet has enormous power.
Flamencology
You don't deserve koa.
It's out there.
Help!I'maRock!
Mediocringly Derivative
Flamencology
You don't deserve koa.
Topical, given that Dolphy died a victim of racist assumptions, deprived of proper medical care. Ironically, though, that didn't happen in the US.
mongooz
.
what do you mean? we're 8 pages into this thread and everythings been pretty civil.
DON'T JINX IT!!!!
335clone
Living the dream
Not us, the cops. They are clearly set to make a deal or 2.
mongooz
.
OH!!! i see what you meant. yea, i don't know what's gonna go down now. i have read that actually getting convictions is gonna be a whole 'nuther ball game. i guess it depends on just what the prosecutor really has.
on the other hand, if they all stick together and shut up......gonna be hard
sunvalleylaw
Yep.
Ok, humbly submitted for your consideration, here is some stuff to chew on from a general legal perspective. I was licensed as a lawyer first in 1988 at the age of 25. I started off clerking for the appeals courts of the State of Washington, worked for a Tacoma firm, and since have long practiced representing regular joes in criminal, family law, regular meat and potatoes stuff. I hope some of the below provides some perspective of some kind. Some of this may seem basic, but I think it is important for organizing one's thoughts on the subject. I am sticking to criminal law here, considering trial of the facts (law to be applied to those facts by the judge) by a jury. Without going too far into the history of where it came from (check here for some starting points on it if you would like: http://www.americanbar.org/content/dam/aba/migrated/jury/moreinfo/dialoguepart1.authcheckdam.pdf , and there is good ol' wiki too http://en.wikipedia.org/wiki/Juries_in_the_United_States ), the idea of juries is that both the state and the defense put on evidence, the state carrying the burden of proving the facts of the case beyond a reasonable doubt, that the facts fitting a crime defined by law has been committed, and that the defendant is guilty of that crime. The goal is that having a jury of one's peers (selected by both sides from a pool of potential jurors by questioning and elimination), that the usually 12 (in felonies) jurors will be able to render objective or at least impartial truth on what happened, after having the evidence presented by both sides, with the Judge basically sitting as a referee over the proceedings (what evidence is allowed, conduct of the attorneys and witnesses), and clarifying any of the legal points required for the case (jury instructions, verbal statements regarding the law during the proceedings).
The evidence is going to be a mix of scientific (if any) including DNA, expert testimony regarding causes of things, ballistics, etc.; eyewitness if available, photos/recordings/video if available, documents or public knowledge about dates, other public information like schedules, if the tide was up or down, etc., such evidence subject to various hearsay rules, rules about authenticity, etc.
Often, often, over the years in many, many cases, it has been the word of the accused vs. the word of law enforcement that has primarily carried the day as to what happened, along with alleged possession of whatever such as a weapon, drugs, blood on the accused's clothing, etc. But lots of times there is not really any physical type evidence other than maybe a bag of drugs, etc. Video in police units started to add some clarity in some cases, as long as the action was out in front of the vehicle. But lighting, etc. makes that hard to see sometimes. Now there are more forms of video available sometimes, given security cameras (though the footage is often not recovered in time), officer's recording or video units on their person (sometimes those along with the units in the cars seem to be on when it is convenient in my opinion, sometimes. not making a general accusation here.), and of course now nearly everyone is carrying around a video camera in their phone 24/7. Not that i have had any cases with citizen video yet.
The vast majority of criminal cases in this country are resolved by plea agreement, where the original charge and recommended penalty is reduced in exchange for a plea of guilty As an aside, many defense attorneys may say is "overcharged" because a prosecutor can, and because they want room to negotiate.
Another important point about media coverage before trial is that what is reported by news sources has traditionally been the state's version from probable cause affidavits or statements made by the police or prosecution, as the defendant will likely preserve his or her right to silence. Therefore the only info available typically comes from the state. Now, these public videos are out there. But it is still rare for an accused to present that to the press prior to proceedings.
So, in the end, you most often have the officer(s)' word vs. the accused on some important points. Juries have traditionally believed officers much more than the accused in most cases. Ie, in a DUI/DWI case, Officer says defendant was swerving all over the road. Defendant says no he wasn't, or some papers fell off the dash, or whatever. Generally, in a case like that, officer's testimony wins. We move on to stupid human trick testing, breath tests, etc.
Again, most of these settle because of the above.
The big special cases such as OJ, some of these recent ones, etc., are different. The OJ case is held up as an example of what is called "juror nullification." Where a jury decides a crime has not been committed for reasons maybe not within the evidence, maybe for disagreement for what is happening in law. From wiki: "American jury draws its power of nullification from its right to render a general verdict in criminal trials, the inability of criminal courts to direct a verdict no matter how strong the evidence, the Fifth Amendment’s Double Jeopardy Clause, which prohibits the appeal of an acquittal,[2] and the fact that jurors can never be punished for the verdict they return" Those cases, despite perception created by media, are extremely, extremely rare.
But bottom line, the accused has a right to a fair trial by an impartial jury. So the Prosecutor in Baltimore stated her office's conclusion and opinion, and said charges are coming. In this case, the OFFICER's, are the accused. If it was some other regular joe's with petty drug crime records (or not) accused of breaking a man up, no media coverage at all.
The South Carolina case is very special in that very rarely do you have video of something that regardless of the situation, appears to be illegal. It is like having bank video of the bank robber without a mask. So in this case, the officer's advantage of his credibility (which he tried to play initially by his contentions prior to the release of the video), is nullified.
We don't know enough yet about Baltimore. Lots of questions that may be impacted by physical evidence such as blood samples, photos of blood or evidence of injury, medical expert testimony, etc. Plus lots and lots of testimony I would guess. And the video that can be gathered. But it does not record the actual injuries taking place to my knowledge. Will the police credibility factor weigh in? I suppose that will depend on what other video or testimony or evidence shows about their behavior surrounding the incident. Way too early for me to call. And they are in this case, defendants, entitled to the same rights as any accused. So, we shall see.
Also, I just want to say that generally, until one has been legally detained for at least questioning (Terry Stop), one can run from police conduct without running itself creating probable cause. There are some very specific exceptions (that I don't think should exist) by case law that could apply. More facts need to be developed, and frankly I need to re-read those cases, before I can opine. Juries do there best in my experience to get impartially to the truth as objectively as they can. But with human witness testimony that can be flawed due to the inherent variations of humans to be able to see or perceive something, then tell it accurately later on, the different inferences that can be drawn from what appear to be objective facts based on more "hard evidence" such as blood/DNA tests, video, etc., there is definitely a human element to it. I do not see how it can be any other way though.
The riots themselves are a different but related question. More to do with economic inequality, hopelessness, feeling that the legal system is not fair, increasing militarization of the police force (maybe it has to happen, but I don't know. a different discusssion), etc. Tough deal and I am a white guy from the suburbs of Tacoma. Not in their shoes. I don't think I would continue to riot, or maybe do so in the first place. I would like to think I would more follow the teachings of Dr. King. But . . . I am not in their shoes. I worry that they cut off their noses to spite their faces, but I am understanding and sympathetic.
Are there bad cops that do bad things? Sure. Are they all bad? No. Is it completely racial? No. Does race play a role? Based on my experience with the police practice known as "profiling", in mostly white community with a strong Hispanic contingent, yes, race does play a role. No easy answers, just a lot of questions that need addressing.
This was posted in the intent of the continued civil discussion. I am happy to discuss any of the above with anyone as time allows, on or off forum. But please, let's keep this civility going. @Brian Krashpad , I would love your input or addition of anything I got wrong from your perspective or left out. I am a long time practicing lawyer, but am not perfect by any means. The character of "Atticus Finch" is a hero of mine, and my comments are submitted in him and any real world lawyers like him in mind.
Oh, and for an offtopic political zinger for fun @Tig , How about that Texas governor?
Kidding folks. Let's not go there.
The evidence is going to be a mix of scientific (if any) including DNA, expert testimony regarding causes of things, ballistics, etc.; eyewitness if available, photos/recordings/video if available, documents or public knowledge about dates, other public information like schedules, if the tide was up or down, etc., such evidence subject to various hearsay rules, rules about authenticity, etc.
Often, often, over the years in many, many cases, it has been the word of the accused vs. the word of law enforcement that has primarily carried the day as to what happened, along with alleged possession of whatever such as a weapon, drugs, blood on the accused's clothing, etc. But lots of times there is not really any physical type evidence other than maybe a bag of drugs, etc. Video in police units started to add some clarity in some cases, as long as the action was out in front of the vehicle. But lighting, etc. makes that hard to see sometimes. Now there are more forms of video available sometimes, given security cameras (though the footage is often not recovered in time), officer's recording or video units on their person (sometimes those along with the units in the cars seem to be on when it is convenient in my opinion, sometimes. not making a general accusation here.), and of course now nearly everyone is carrying around a video camera in their phone 24/7. Not that i have had any cases with citizen video yet.
The vast majority of criminal cases in this country are resolved by plea agreement, where the original charge and recommended penalty is reduced in exchange for a plea of guilty As an aside, many defense attorneys may say is "overcharged" because a prosecutor can, and because they want room to negotiate.
Another important point about media coverage before trial is that what is reported by news sources has traditionally been the state's version from probable cause affidavits or statements made by the police or prosecution, as the defendant will likely preserve his or her right to silence. Therefore the only info available typically comes from the state. Now, these public videos are out there. But it is still rare for an accused to present that to the press prior to proceedings.
So, in the end, you most often have the officer(s)' word vs. the accused on some important points. Juries have traditionally believed officers much more than the accused in most cases. Ie, in a DUI/DWI case, Officer says defendant was swerving all over the road. Defendant says no he wasn't, or some papers fell off the dash, or whatever. Generally, in a case like that, officer's testimony wins. We move on to stupid human trick testing, breath tests, etc.
Again, most of these settle because of the above.
The big special cases such as OJ, some of these recent ones, etc., are different. The OJ case is held up as an example of what is called "juror nullification." Where a jury decides a crime has not been committed for reasons maybe not within the evidence, maybe for disagreement for what is happening in law. From wiki: "American jury draws its power of nullification from its right to render a general verdict in criminal trials, the inability of criminal courts to direct a verdict no matter how strong the evidence, the Fifth Amendment’s Double Jeopardy Clause, which prohibits the appeal of an acquittal,[2] and the fact that jurors can never be punished for the verdict they return" Those cases, despite perception created by media, are extremely, extremely rare.
But bottom line, the accused has a right to a fair trial by an impartial jury. So the Prosecutor in Baltimore stated her office's conclusion and opinion, and said charges are coming. In this case, the OFFICER's, are the accused. If it was some other regular joe's with petty drug crime records (or not) accused of breaking a man up, no media coverage at all.
The South Carolina case is very special in that very rarely do you have video of something that regardless of the situation, appears to be illegal. It is like having bank video of the bank robber without a mask. So in this case, the officer's advantage of his credibility (which he tried to play initially by his contentions prior to the release of the video), is nullified.
We don't know enough yet about Baltimore. Lots of questions that may be impacted by physical evidence such as blood samples, photos of blood or evidence of injury, medical expert testimony, etc. Plus lots and lots of testimony I would guess. And the video that can be gathered. But it does not record the actual injuries taking place to my knowledge. Will the police credibility factor weigh in? I suppose that will depend on what other video or testimony or evidence shows about their behavior surrounding the incident. Way too early for me to call. And they are in this case, defendants, entitled to the same rights as any accused. So, we shall see.
Also, I just want to say that generally, until one has been legally detained for at least questioning (Terry Stop), one can run from police conduct without running itself creating probable cause. There are some very specific exceptions (that I don't think should exist) by case law that could apply. More facts need to be developed, and frankly I need to re-read those cases, before I can opine. Juries do there best in my experience to get impartially to the truth as objectively as they can. But with human witness testimony that can be flawed due to the inherent variations of humans to be able to see or perceive something, then tell it accurately later on, the different inferences that can be drawn from what appear to be objective facts based on more "hard evidence" such as blood/DNA tests, video, etc., there is definitely a human element to it. I do not see how it can be any other way though.
The riots themselves are a different but related question. More to do with economic inequality, hopelessness, feeling that the legal system is not fair, increasing militarization of the police force (maybe it has to happen, but I don't know. a different discusssion), etc. Tough deal and I am a white guy from the suburbs of Tacoma. Not in their shoes. I don't think I would continue to riot, or maybe do so in the first place. I would like to think I would more follow the teachings of Dr. King. But . . . I am not in their shoes. I worry that they cut off their noses to spite their faces, but I am understanding and sympathetic.
Are there bad cops that do bad things? Sure. Are they all bad? No. Is it completely racial? No. Does race play a role? Based on my experience with the police practice known as "profiling", in mostly white community with a strong Hispanic contingent, yes, race does play a role. No easy answers, just a lot of questions that need addressing.
This was posted in the intent of the continued civil discussion. I am happy to discuss any of the above with anyone as time allows, on or off forum. But please, let's keep this civility going. @Brian Krashpad , I would love your input or addition of anything I got wrong from your perspective or left out. I am a long time practicing lawyer, but am not perfect by any means. The character of "Atticus Finch" is a hero of mine, and my comments are submitted in him and any real world lawyers like him in mind.
Oh, and for an offtopic political zinger for fun @Tig , How about that Texas governor?
Kidding folks. Let's not go there.
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mongooz
.
@sunvalleylaw
i read your post. agree.
here's what i am seeing on the trial. we KNOW only a few things. one, gray was breathing and talking when he went into the van and he was NOT breathing and unconscious when he came out. what went on in that van for that period of time we may never know, unless the accused offer confessions.
making a manslaughter charge stick will likely be quite difficult because any discussion of what happened during that trip is pure conjecture, without a confession.
criminal dereliction of duty may be about as much as they can make stick.
correct me if i'm wrong.
i read your post. agree.
here's what i am seeing on the trial. we KNOW only a few things. one, gray was breathing and talking when he went into the van and he was NOT breathing and unconscious when he came out. what went on in that van for that period of time we may never know, unless the accused offer confessions.
making a manslaughter charge stick will likely be quite difficult because any discussion of what happened during that trip is pure conjecture, without a confession.
criminal dereliction of duty may be about as much as they can make stick.
correct me if i'm wrong.
Flamencology
You don't deserve koa.
My understanding is that the charge is based on the officers failure to seek timely medical care, no? And there is evidence that they were aware that he wasn't breathing, no?
Beyond that... Unlawful arrest and the fact that he wasn't confined properly, which resulted in his death. So...
mongooz
.
My understanding is that the charge is based on the officers failure to seek timely medical care, no? And there is evidence that they were aware that he wasn't breathing, no?
Beyond that... Unlawful arrest and the fact that he wasn't confined properly, which resulted in his death. So...
yea.....yer right....that's what they are charged with. but i'm not sure that the prosecution can make second degree murder stick on failure to seek timely medical care. 2nd murder kinda needs to prove intent, doesn't it. (not premeditation, but some kind of intent) i don't know if they can make that stick without knowledge of what went on in the van. that's what i was getting at.
sunvalleylaw
Yep.
I don't know enough about the facts yet to call out my guess. I would not rule out manslaughter, as it can be shown without specific intent, ie, by actions amounting to criminal negligence and/or recklessness resulting in death. Facts may support that here. Much like a guy doesn't mean to hit the pedestrian in the crosswalk, but misses seeing said pedestrian due to fatigue and large modern C-pillars in Dodge trucks, resulting in death. I represented a poor guy in that circumstance one time.
sunvalleylaw
Yep.
Yes, second degree murder requires intent to kill, rather than some sort of negligence/recklessness, except if death is committed during a "BARK" type of felony (burglary, arson, rape, robbery, kidnapping). Then intent can be presumed. 1st degree requires premeditation or malice aforethought depending on the state. the definitions will be by state law, which I have not studied for Maryland.
335clone
Living the dream
First, thanks Steve @sunvalleylaw for a great analysis / primer. I agree that the prosecution may have overcharged, at least somewhat, mainly because it is easier (correct me if I'm wrong) to add lesser charges later on than to add higher charges after further investigation. There could also have been a conscious effort to satisfy public cries for justice, and give good reason to scare one or two defendants to point fingers. As far as my impression of the events vs the charges, I think the prosecution has some work to do but can make their case in most of the charges. Starting with and illegal arrest / roust, and lying about the switchblade that turned out to be a legal knife just like one clipped to my pocket. Falsification of a police report. Not securing him in the van, and placed in such a way that he was unable to brace or protect himself. This is crucial to the rest of the case. What is the official protocol ? Can they show a pattern of 'rough rides' as a common tactic to scare and intimidate "perps" ? And the conscious decisions made more than once to ignore pleas for medical attention would seem to be reckless disregard for life. What would a citizen be charged with if he had hit a pedestrian, then instead of calling an ambulance simply sat and watched the victim die ? My guess is that the 2 bike cops and the Lt. will turn on the drivers and Sgt. The drivers and Sgt will then turn on the Lt. and say he fostered the culture of abuse. Clearly just guessing the last bits, but it will be interesting.
sunvalleylaw
Yep.
Clarification, re: the over charging aspect, I was suggesting that prosecutors often "overcharge" considering the end result generally. Not necessarily making a call in this case. But yes, it can be easier to charge the highest crime you think you can reach starting out of the gate. Whether that should be done in every case is another matter.
all the factors you mention in the rest of your comment get into issues of credibility (what usually the police have an advantage with), and negligence/recklessness factors. Knowledge of his injuries as they put him in the "Paddy Wagon" will be important too. Certainly once he is in their custody, legally or otherwise, their duty increases and he becomes their responsibility. If he hurt himself running, that is one thing. But if they know of an injury (or reasonably should have known given their training and expertise), even one caused by his running, and they take him into custody and don't deal with the injuries, then . . . we shall see how it all plays out.
all the factors you mention in the rest of your comment get into issues of credibility (what usually the police have an advantage with), and negligence/recklessness factors. Knowledge of his injuries as they put him in the "Paddy Wagon" will be important too. Certainly once he is in their custody, legally or otherwise, their duty increases and he becomes their responsibility. If he hurt himself running, that is one thing. But if they know of an injury (or reasonably should have known given their training and expertise), even one caused by his running, and they take him into custody and don't deal with the injuries, then . . . we shall see how it all plays out.
