“Go Raccoons!” The case of the illegal mascot.

Perhaps I complain too much about the criminalization of trivial offenses. Sometimes the law is questionable. Other times the police and prosecutor get over-zealous.

One of the kinds of cases I came to dislike as a prosecutor were those dealing with animals. This is one of those areas where people get very upset, often out of proportion to the actual harm done.

A man may forgive you for kicking him, but he will never forgive you for kicking his dog.

Cases involving animals are often brought by in conservation agents. And that brings me to another kind of case I learned to dislike.

Conservation agents are mostly nice guys who belong to what you might call a “niche area” of law enforcement. Real cops deal with everything from traffic tickets to murder and usually are able to put things in perspective. But niche cops–that is, conservation agents, meter maids, dogcatchers, liquor inspectors, and the like—sometimes lack the larger view that enables them to view small cases as . . . small.

When I was a new prosecutor I was given a case about a fellow who had been caught possessing an illegal raccoon. My boss said it would need to be tried and that it would be good practice for me. I read all of these reports and met with the conservation agent, who was very interested in the public chastening of this particular lawbreaker.

The defendant was apparently unrepentant and refused to accept that he was a criminal who deserved to be punished (in this case by up to one year in jail).

So I went into court and masterfully laid out my case for the judge. The conservation agent was serious and professional; the evidence was ironclad, proving beyond all doubt that this stubborn lawbreaker had defiantly possessed an illegal raccoon and had been caught red-handed.

Then the defendant took the stand. The fool admitted everything! He explained how he had discovered this weakened & starving baby raccoon alone in his garbage can on a cold winter night. He took it in. Fed it. Raised it.

His children turned it into a family pet.

All of this in blatent violation of the law, § 252.040, RSMO.

And if that is not shocking enough, when summer came, the animal was pressed into service as mascot for the defendant’s softball team. He claimed that the raccoon was a big hit in his little uniform and tiny cap.

I gave an eloquent closing argument, exposing the defendant’s contempt for the law and heartless exploitation of this motherless creature. I suggested that the court make an example of him.

The judge found him guilty and sentenced him to a $5.00 fine. The example, apparently, was for me.

Missouri Highway patrol’s stop and search was illegal – again

A new case out of the Missouri Court of Appeals, State v. Ross is another in a series of Highway Patrol cases where the defendant was charged with drug possession after an illegal detention and search of his car. The surprise is not that patrol officers have done this, but that there are prosecutors who–to this very day–still prosecute such cases.

The Defendant, Ross, was driving a rental car and got stopped for speeding. The patrolman pulled him over, put Ross in his patrol car, wrote Ross a warning ticket and told him he was free to go. At that point the legal traffic stop was officially over.

As Ross walked back his car, the officer got out of his car and called out to Ross. Ross and the officer talked a bit. Ross agreed to answer some more questions, mostly related to Ross’s opinions about drug use. Finally, the officer asked if he could search the car. Ross said no, not unless his passenger agreed.

The officer asked the passenger for permission to search the car. He refused. The officer called for the drug dog. An hour after the traffic stop began, the dog arrived and sniffed out marijuana in the trunk.

Ross was arrested, along with his passenger. The prosecutor filed the charge, a defense motion to suppress was heard and the evidence was thrown out by the court because the continued detention of the defendant was illegal. That trial court decision was upheld by the Missouri Court of Appeals on June 3, 2008.

By now, I expect police and prosecutors have figured this out:

When an officer makes a legal traffic stop, finishes the stop, and releases a person–and if they have no further grounds on which to detain them–then THEY MUST LET THEM GO.

They cannot keep a person any longer under the pretense of having a chat between friends, not unless the driver clearly understands he is free to leave and feels no compulsion to stay and answer questions. Such would seldom be the case when one party is an unarmed citizen and the other is a uniformed & armed police officer who has pulled the citizen over by threat of force.

Obviously, this rule is violated even more when the police press even harder and ask to search and are refused. And then they detain the driver or the car while they wait for a drug dog. There can be no excuse for this. None.

The Prosecutors fought this case for over four years before they finally lost. (That’s assuming they dismiss the case now that their evidence has been tossed out for good. As of this writing, they still have not dismissed the case, per casenet in Franklin County #04AB-CR00090).

I hope this is the end of this sort of thing. Better a few miscreants escape punishment than the rest of us live under tyrants. It’s called liberty.

Jury Nullification – The power to do what is right. Part 1

Jefferson City criminal defense lawyerBefore every Missouri criminal trial begins, the judge asks the jury to stand and raise their right hand as the jurors take this oath:

Do you solemnly swear or affirm that you will well and truly try the issues in this case and render a true verdict according to the law and the evidence, so help you God?”

After all the evidence in the case is heard, the court instructs the jury as to the law, telling them that they must decide the facts in the case. Something like this:

If you find and believe from the evidence beyond a reasonable doubt:

First, that on or about March 18, 2008, on US Hwy 54, in the County of Cole, State of Missouri, the defendant operated a motor vehicle, and

Second, that he did so while in an intoxicated condition,

then you will find the defendant guilty of driving while intoxicated.

It looks very mechanical. Very simply, if the defendant was

1. intoxicated; and

2. driving; then he is automatically guilty.

But that is not how it works.

In fact, the jury has unquestioned power to find the defendant “not guilty.” Without having to justify why.

Now most of the time, jurors do follow the court’s instructions and render a verdict based on whether the state has proved the facts in the case beyond a reasonable doubt. But there are times when the jury clearly DOES NOT CARE that the state has proven it’s case.

If they think the law is unjust in a particular case, they exercise their power and vote “not guilty” even though the defendant undoubtedly did what he was accused of doing.

Twice-when I was a prosecutor–I learned this lesson firsthand.

The first time was a felony DWI trial. The defendant had been drunk (very drunk) driving and his lawyer was the only person who could dispute it with a straight face. But the jury came back with a “not guilty” verdict. Several jurors went out of their way after the trial to find me and tell me not to feel bad, that I did a good job, but there was no way they were going to find that nice boy guilty of a felony.

Another fellow was acquitted after I proved his guilt-beyond all possible doubt-that he illegally possessed a concealed weapon (a knife he kept under the driver’s seat of his car). I spoke with some jurors afterward and they just disagreed with the law. There was no way they were going to convict a man for doing what everyone has a right to do; i.e. keep a weapon in his car for self-defense.

The fascinating thing about this is that the jury got away with ignoring the court’s instructions. No one could stop them. No one could reverse their decision. No one could punish them afterward.

This power of “jury nullification” of the law is intriguing. I’ll get into it more in later posts.

–> Read Part 2

Jury Nullification – The power to do what is right. Part 2

This thing they call “jury nullification” means that the jury can acquit a defendant if they think a strict application of the law–as given to them by the judge–would be unfair. It means that the jury is judging both the facts AND the law.

How exactly can a jury get away with giving a “not guilty” verdict when the facts clearly show that the defendant ACTUALLY DID what he was accused of doing?

The chief factor is the 5th amendment prohibition against double jeopardy. The defendant–once acquitted–cannot be tried a second time (this also means the state cannot appeal a “not guilty” verdict).

In addition to the fact that “not guilty” verdicts are binding and unappealable, the second factor is almost as important: no juror can be punished for rendering a “not guilty” verdict, even if they apparently failed to follow the court’s instructions. Unless they commit a crime like taking a bribe, they are untouchable.

When I was a prosecutor, the idea that a jury was free to acquit any defendant, was very distressing to me. Reasonably enough, prosecutors expect juries to render guilty verdicts when the prosecutor proves his case.

They can understand losing a case that turns out to be weaker than they expected. Things sometimes go badly at trial. But, on the other hand, nothing is more frustrating than seeing jurors acquit an obviously guilty person.

This is ironic because prosecutors typically exercise their own discretion in refusing to file 15% to 20% of all the cases the police send to them.

Just as prosecutors are annoyed by juries who disagree with them, the police are often rankled when the prosecutor won’t file every case submitted to them. Yet the police themselves will give a lawbreaker a second chance when they issue a warning or let a friend drive a troublemaker home, instead of arresting him.

It seems that nobody wants to convict a person who cannot or should not be prosecuted, but once THEY decide to punish the accused, THEY expect their decision to be the final word on the subject.

This raises the question: Who should have this power? Who should we trust with this sort of discretion? Who is more likely to bring the mind and values of the community to the decision-making process?

I’d welcome any comments on this. More in my next post.

–> Read part 3

Jury Nullification – The power to do what is right. Part 3

Jefferson City Criminal lawyerWe have seen that juries can render a “not guilty” verdict even where the evidence clearly shows the defendant did what he is accused of doing. Missouri cases have seldom spoken of this issue. Thirty years ago, the Missouri Supreme Court acknowledged jury nullification: “While courts recognize that jury nullification may occur from time to time, the practice is not encouraged.” State v. Hunter (Mo. banc 1979).

This, however, misses the point. No one suggests that juries should be encouraged to render verdicts inconsistent with the law. The question is whether they should be informed of this power and instructed in its use. Such independent juries have been the leading edge of political change.

Before the American civil war, it was the refusal of northern juries to enforce the Fugitive Slave Act of 1850 that moved the nation toward war and the abolition of slavery. Later, refusal of juries to enforce Prohibition led to the 21st Amendment. Whenever the government gets out of step with the people, the citizens have the power to fight back from the safety of the jury box.

Still, the courts are uncomfortable with the idea. Some will acknowledge that acquittal by jury nullification can be beneficial in certain situations, but they pretend to be terrified by the prospect of the jury going the other way. What if the jury doesn’t like the defendant and convicts him when he didn’t actually break the law? There are a couple reasons why this would not be a problem in actual practice:

  1. The courts would only instruct the jury about their right to judge the law (as well as facts) if the defendant requested that instruction. That way it would not be used by the state to falsely convict a defendant; and
  2. Unlike an acquittal (which can neither be reversed, nor the case re-tried) an illegal conviction could be set aside by the trial judge, and if not by the judge, then by the court of appeals.

With such protections in place, jury nullification is not the double-edged sword as some would suggest. It could only be used to acquit when a jury believed that the law–as given by the court–would cause an unjust, unfair result.

Another problem with the current system is that it sometimes creates an intolerable dilemma for jurors who must decide between following orders and following their conscience. Some argue that a juror—in taking his oath—commits perjury when he later delivers a “not guilty” verdict in spite of proof beyond a reasonable doubt. This is untrue for two reasons:

  • First of all, the jurors’ oath says nothing about following the court’s instructions. The oath states that the juror will “truly try the issues in this case and render a true verdict according to the law and the evidence.” The juror would probably believe this to be the equivalent of promising: “I’ll do the best I can.”
  • Second, even if the oath clearly demanded that the jurors follow the court’s instructions to the letter, any reasonable juror would assume that the law (as given by the court) will be fair, and would be applied in a fair way.

No juror imagines that his government would put him in a position where his oath cannot be fulfilled in good conscience. If the juror intended to follow the law at the time he took his oath—and later discovered that he could not—there can be no perjury.

The idea of an independent jury goes back before the Magna Carta. When government crosses the line, it is a great thing that twelve fellow citizens can step in and tell the state it has gone too far. If it happens just once, it saves just one person. If it happens over and over, even bigger things happen.

For more information on the importance of informed, independent juries:

Verdicts Of Conscience: Nullification And The Modern Jury Trial

Fully Informed Jury Association

DWI: Giant fines and jail time, but no need for an attorney.

Spring in the Missouri legislature always sees the introduction of bills designed to prevent drunk driving.

In addition to the Drunk Driver Victims memorial signs discussed in an earlier post, here are a couple more:

Senator Wes Shoemyer’s Senate Bill 861, attempts to close what some consider a “loophole” in the DWI laws. Currently, some DWI-related convictions do not count toward “enhanced” punishment for persons accused of subsequent alcohol offenses, unless the defendant is represented by counsel or has waived the right to an attorney in writing.

This bill simply snips away the requirement that the defendant must have been “represented by or waived the right to an attorney in writing.”

This is one of those bills that tries to crackdown on DWI offenders, but in the end may backfire by permitting the courts to get sloppy about the constitutional right to an attorney. This would result in overturned convictions and would foul up repeat offender charges.

A written waiver of an attorney is a simple method to protect defendant’s rights (and the prosecutor’s conviction record). A written waiver in the file usually ends any controversy. By doing away with this requirement, Senate Bill 861 will create more problems than it solves.

* * *

Senator Tom Dempsey’s Senate Bill 1053 doesn’t beat around the bush. In addition to jail, fines and license suspensions (click here for a complete list), this bill tacks on an additional–and mandatory–$1,000 fine on a first offense; $2,500 on any later offense.

I guess it follows that since poor people cannot possibly pay such fines, only rich folks will be able to afford DWI’s anymore!

As a practical matter, the courts will be helpless to deal with such mandatory fines, except to sentence everyone to jail and put them on probation with orders to pay the fine in 30 – 90 days. Then when half of them can’t pay, just throw them in jail.

Missouri law could make things easier on cop killers

Senate Bill 912, sponsored by Sen. Kevin Engler, would create the crime of murder of a criminal justice official in the first degree (that is, the deliberate killing of police, prosecutors, judges and jailers).

We may ask–since plain-vanilla murder in the 1st degree can already be punished by death–how can things be any harsher? A 1st degree murder trial has two phases:

  • First the the jury decides on guilt or innocence. Then, if guilty,
  • More evidence is presented and the jury decides between death and a life sentence.

Under the current murder law, the prosecutor must put on punishment phase evidence to prove that a killing was especially egregious, showing that it involves any of 17 different aggravating circumstances as listed under section 565.032.2, RSMo.

The murder of a criminal justice official would require an automatic death sentence unless a jury finds mitigating circumstances sufficient to justify a life sentence without parole.

If this is to be seen as a get-tough law, I think it backfires:

If a jury finds a defendant guilty of an ordinary 1st degree murder, the prosecutor–during the punishment phase–will then be allowed to present evidence to prove any of the 17 possible & applicable aggravating circumstances.

The defense then gets to put on all of its mitigating circumstances. Then the jury decides between life and death.

Contrast this with a defendant who is found guilty of 1st degree murder of a criminal justice official:

  • The prosecutor doesn’t prove anything during the punishment phase. The death sentence is literally his to lose.
  • What happens is that during the punishment phase the defense gets to put on all of its mitigating circumstances.
  • The prosecutor can introduce evidence to refute the mitigating evidence, but much of the nasty, inflammatory stuff he could have used against the defendant to prove his aggravating circumstances may be kept out because it would no longer be relevant.
  • Then the jury still has to decide between life and death.

I’m not a prosecutor anymore, but if I were, I would never handcuff myself by charging a defendant under this proposed law.

There is a legitimate concern with protecting criminal justice officials, but we might keep in mind that the killing of those same listed officials is already included in that current lineup of 17 aggravating circumstances. The only ones missing are probation and parole officers.

Perhaps if we simply add the words “probation and parole officer” to the current list it would extend that protection to them without opening this can of worms.

The time is ripe for Missouri to record police interrogations

I was prosecuting a criminal case once and my witness, a state trooper, had done a good job testifying on direct examination.

The defense attorney was a hard charging guy who had taught me some valuable lessons when I was a new lawyer. During an uncustomarily gentle cross-examination of my trooper, the attorney strolled over to his briefcase and brought out a small tape cassette & player and laid them on the defense table.

Then he asked:

Now Trooper, my client didn’t agree to let you search his car, did he?”

Yes, he did,” the trooper said.

Are you sure?

Yes.” The trooper got a funny look on his face as he (and everyone in the room) wondered where this was going.

Isn’t it true,” the attorney persisted, “that he told you ‘NO’ and you said you would search anyway?

No,” the trooper said again. The attorney picked up the tape and began to load it into the player.

Are you sure?” the attorney said, as he waived the cassette player around in front of the witness. This was about the time that my witness directed that what-do-I-do-now look to me sitting at the prosecution table.

Naturally, I looked away from the Trooper (giving him the universal “you’re on your own now” signal).

Seeing no aid coming from me, the trooper squared his shoulders, looked the attorney in the eye and said “Your client gave me permission to search.” The defense attorney stared hard at him. The trooper gave him a cast-iron stare back.

Then the attorney switched to another line of questioning as he slipped the recorder back into his briefcase. The match was over and his client was quickly convicted.

I believed the trooper that day; and not just because the lawyer blinked and the trooper didn’t. The trooper had always been a straight shooter and I expect he still is. But at that moment, he and I both wished that WE had a tape to prove what had been said.

Now comes this story of a New York police detective being charged with 12 counts of perjury because a teenager was smart enough to record his interrogation using an MP3 player. Unfortunately, the detective swore under oath that the interrogation had not occurred at all.

A dirty cop is more damaging to the criminal justice system than anything I can imagine. If he lies, it may take a long while before prosecutors and the courts catch on. Meanwhile, innocent people are charged, perhaps convicted.

Once the perjurer is caught, the public looses confidence in the system and juries are less likely to convict the guilty, thus turning the entire system on its head.

Perhaps it is time for Missouri to join those states that have required audio and/or video recording of all custodial interrogations of suspects.

These days high quality digital audio recorders that fit unseen in a pocket, record for 36 hours straight, and costs fifty bucks are available at any Walmart. If I was a police officer, I’d carry one for the whole shift, if only for my own protection.

It could be mandated that recording must begin at–and include the reading of–the suspect’s Miranda rights and continue, uninterrupted, until the end of the interview. This would end a common practice of obtaining a confession (by unknown means), then smoothing out the rough spots with the suspect; and only then turning on the camera for the jury.

It may be appropriate to require video recording at the police station, but allow audio-only in the field.

There could be reasonable exceptions for unusual situations where the police make a good faith effort to follow the rules, but otherwise, statements of the defendant while in custody would not be admissible unless recorded.

It hard to see the downside of such a rule. It protects the accused. It protects the police from false accusations. I suspect police and prosecutors would integrate the practice very easily. Courts and juries would love it. So why not do it?

It’s not so great to be the State . . . except when it is.

Let’s even up the books and note some advantages that the defendant has in a criminal case.

In the last post I mentioned that the accused gets to “hide” evidence in his possession that would tend show him to be guilty. And he CAN appeal a loss, because, while double jeopardy prevents the state from re-trying him, he can ask for a new trial. If he wins the appeal he may get one.

Some other differences relating to the defendant

  • He doesn’t have to testify; and no one can even mention to a jury that he hasn’t testified. A smart defense attorney might even leave the impression that the “mean old state” didn’t even let allow him to tell his story.
  • The whole burden is on the state to prove the case. If the defendant can raise a single reasonable doubt about ONE element of the state’s case, the jury must acquit the defendant.
  • The defendant gets to choose between having his case decided by a judge or a jury. That is important in most cases.
  • The defendant gets to choose (in many cases) between having his punishment decided by a judge or a jury.
  • The defendant cannot be convicted unless all 12 jurors agree. While the principle that a verdict must be unanimous applies to both “guilty” and “not guilty” verdicts, this rule is really in favor of the defendant.

My experience is that unless a jury can resolve its differences fairly early in the deliberations, the jurors holding out for a “not guilty” verdict tend to be more tenacious, while the “guilty” votes seem a bit more likely to yield, as in the movie 12 Angry Men.

As I’ve mentioned in another post, even the prosecutor and the defendant’s attorney are treated differently if they make an error in the trial. The prosecutor’s mistake is called “misconduct,” while a bumbling defense attorney is called “ineffective.”

The question of fairness and balance really comes down to the question of whether our courts are successful in convicting the guilty and releasing the innocent. That is an issue we will never resolve.

Why it’s great to be the State . . . except when it’s not.

If there is one word that should describe any criminal trial, that word is “fairness.” We usually think of fairness in a dispute as treating both sides the same, but in a criminal case the rules are very different for the two sides.

Each side has built-in advantages over the other. The idea is that those differences should balance one another. And that fairness and justice should result.

You can decide for yourself:

Starting with the state:

  • The state files only those cases it wants to file. Never mind what the police, the victim or the public want. The state doesn’t have to charge the bad cases; and in a perfect world, it never would. (This is much like a poker game where one player gets to throw out any hands he doesn’t like. Of course, that’s good if it means an innocent person doesn’t get charged.)
  • The state can dismiss the case anytime before trial. If they are not ready on the morning of trial, they can drop the charge and refile it that afternoon. This is a big-time screw job on the accused. Nobody backs the State into the trial corner.
  • With most defendants, the state has greater resources, i.e., money for scientific testing, experts, police, investigators. Mostly, they have whatever they need to try the case.

There are also some disadvantages in being the state.

  • The state has the burden of proving the charges. If they fail to prove every point in their case they lose. The defense may do nothing at all and still win.
  • The defendant may secretly know a lot of things that would hurt his case: names of witnesses, the existence of unfavorable documents. etc. But unless he is going to offer them at trial, he does not have to inform the state. The state, however, must hand over any unfavorable evidence it has. They cannot just ignore such evidence. They must give it to the defense.
  • Another disadvantage in being the state is that they have NO RIGHT TO APPEAL a “not guilty” verdict. This is different from civil cases, where each side can appeal a verdict. The reason there can be no appeal is because that would amount to double jeopardy if the State won on appeal and retried the case.

Those are some key differences that affect the state. In my next post we’ll cover some advantages to the the defendant.