Savory Twins: right idea, wrong execution.

So, Dorothy Savory had the right idea: the eyewitness couldn't really identify the black male who stole her purse. In our Alice-In-Wonderland system, you can't let the jury know that eyewitness testimony is demonstrably unreliable. So, Dorothy probably thought, I'll just show it's unreliability in this case. Apparently, the problem is in the execution. She didn't let the judge know. In surrounding jurisdictions that have preliminary hearings, it is not unheard of to not have the charged defendant sitting at counsel table, and have him or her sitting in the gallery. In my many years of practice, I've seen prosecutors point out the defendant through the courtroom window, but that's apparently o.k. (You would think the only black guy sitting in the courtroom would be enough of a clue!)

Attorney Dorothy Savory's Twin Trouble

Attorney Dorothy Savory is in the news for showing up at a preliminary hearing for her client Darrel White, Jr. with his twin brother, Darrel White instead. Mark Morris's story in the KC Star is a good one and has a catchy headline: "Double trouble for KC lawyer who appeared with client's twin." Prosecutor Jean Peters Baker said she is duty bound to report Savory to the Missouri Bar. "That's a responsibility I take very seriously and one I'm heavily reviewing under these circumstances." Russ Ptacek did a nice follow up for KSHB and reported that Savory had also made the news in the Baby Lisa saga and been accused of "fraud" and "mockery" in a custody battle.

If cops lie under oath, it isn't perjury.

Another trial, another cop, another lie, another pass. Attorney Dan Ross is in trial this week on a shooting case. One of the witnesses was a homicide detective who signed an affidavit for probable cause in a co-defendant's case and noted that he was only able to see and identify one of three shooters. The detective's affidavit goes into some detail about only being able to identify the one shooter. Since the detective did not identify the client on trial in the sworn affidavit, Dan was a little miffed when, during the trial, the detective testified before the jury that he could identify two shooters, one of them being the defendant on trial. Obviously the prosecutor and detective had "forgotten" about the affidavit filed in the companion case and so just presented the false testimony since it helped the prosecution. So, a detective gives two different statements under oath, and one of them must be false. He either could identify one suspect, or he could identify two suspects. He either testified falsely in the affidavit or at trial. What happens when a prosecution witness is caught lying under oath? Nothing. If you're interested, this is the perjury statute: Perjury. 575.040. 1. A person commits the crime of perjury if, with the purpose to deceive, he knowingly testifies falsely to any material fact upon oath or affirmation legally administered, in any official proceeding before any court, public body, notary public or other officer authorized to administer oaths. 2. A fact is material, regardless of its admissibility under rules of evidence, if it could substantially affect, or did substantially affect, the course or outcome of the cause, matter or proceeding. 3. Knowledge of the materiality of the statement is not an element of this crime, and it is no defense that: (1) The defendant mistakenly believed the fact to be immaterial; or (2) The defendant was not competent, for reasons other than mental disability or immaturity, to make the statement. 4. It is a defense to a prosecution under subsection 1 of this section that the actor retracted the false statement in the course of the official proceeding in which it was made provided he did so before the falsity of the statement was exposed. Statements made in separate hearings at separate stages of the same proceeding, including but not limited to statements made before a grand jury, at a preliminary hearing, at a deposition or at previous trial, are made in the course of the same proceeding. 5. The defendant shall have the burden of injecting the issue of retraction under subsection 4 of this section. 6. Perjury committed in any proceeding not involving a felony charge is a class D felony. 7. Perjury committed in any proceeding involving a felony charge is a class C felony unless: (1) It is committed during a criminal trial for the purpose of securing the conviction of an accused for murder, in which case it is a class A felony; or (2) It is committed during a criminal trial for the purpose of securing the conviction of an accused for any felony except murder, in which case it is a class B felony.

Prosecutors caught cheating in Casey Anthony trial.

Remember all the evidence about Casey Anthony searching about "chloroform" 84 times? Certainly had everyone thinking that Caylee had been chloroformed, even though the cause of death was unknown.
Turns out the information was a fraud: a glitch in a computer program produced the bad information AND the prosecutors and police were alerted to the false data during the trial and did not correct it.

"Chloroform" had been searched for one (yep, that's 1) time, and then a web site was on the use of chloroform in the 1800s was accessed.

The programmer alerted prosecutors and police to the error and the correct data during the trial and the prosecutors did not alert the court and defense counsel.

“The prosecution is absolutely obligated to bring forth to the court any and all evidence that could be exculpatory,” Mr. Mason said. “If in fact this is true, and the prosecution concealed this new information, it is more than shame on them. It is outrageous.” Here's the link from the New York Times:

http://www.msnbc.msn.com/id/43807133/ns/us_news-the_new_york_times/

Can I call the prosecutor as a witness?

So, I'm appearing in a rural county where the local sheriff has obtained a search warrant to search my client's farm. According to the affidavit, the sheriff received a call about a loud noise and went to investigate. Being the thorough investigator that he his, he decided to peek into the windows of an out-building garage and saw five marijuana plants growing. So, according to the affidavit, he then sought a search warrant and the rest is history. Anyway, I just returned from court and a meeting with the (very nice) prosecutor. During our chat, she asked me: "Do you really know why you're here?" Assuming that "because my client is charged with a crime" was the wrong answer, I shyly said: "Not really." The prosecutor then explained that my (stupid) client had had his neighbor mow the pasture. Again, feeling a little stupid, I asked if mowing the pasture was why I was "really" here (or there). She politely explained that the neighbor was a former Deputy Sheriff, and he had seen the marijuana plants and called the current sheriff. Soooo . . . the good news is that I now know why my client got charged. The bad news (or good news for us) is that the current sheriff filed a false affidavit about a loud noise and carefully left out the source of his information. So, the sheriff filed a false affidavit to hide the source of his information, but the person telling me this is the elected prosecutor. Is the prosecutor now my witness, or do I hope that the sheriff will tell the truth about his perjury? Just another day . . . .

Sisco found not guilty on all counts

Late yesterday, Anthony Sisco was found not guilty of murder first degree, armed criminal action, assault first degree and armed criminal action. The jury started deliberations on Monday at about 2:30 p.m. and, according to the jury, were 11-1 for acquittal when they broke at 5 p.m.

The jury thought the case was clearly self-defense, both because the purported victims had pointed an AR-15 at Anthony and because once Sylvester Sisco started shooting, a "reasonable person" would think he was in imminent danger of death or serious physical injury.

As previously noted, the KCPD, the crime lab and the prosecutors had managed to keep from four judges, one petit jury, and four grand juries the fact that their "enhanced" video showed the AR-15 being pointed at Anthony Sisco.

A wise prosecutor

Clay County Prosecuting Attorney Dan White is an old-school prosecutor: plays fair and cuts to the chase. He might be the only prosecutor in the area who has read the disciplinary rules about pre-trial publicity and carefully avoids holding press conferences to proclaim a person's guilt . . . but that's another subject. Anyway, I have a case of statutory rape, where my gainfully employed, straight laced, never-been-in-trouble, Army reserve client meets a girl on the internet and starts to get busy. In keeping with his chivalrous nature, when things begin to progress he suspects the fair maiden, although eager, is a maiden and politely stops. He takes her home and they stay on good terms, except it turns out that the dear girl--with some amazing pictures and posts on Facebook--is underage. Unfortunately, Missouri's laws were drafted when a 13 year old looked like a child, and haven't been updated to recognize that the 5'10" woman with boobs and booty and some nasty Facebook posts might be . . . 13 years old. So, getting back to my praise of Dan White, he suggested depositions so the dad--justifiably upset--might learn that his daughter had not been candid with him about the events. Just returned from the scheduled deposition. Prosecutor. Check. Defense attorney. Check. Court reporter. Check. Witnesses? Looks like a dismissal might be coming.

Discovery? What discovery?

So, after four days of trying to go to trial and getting a plea done, it's off to Independence after being ordered to appear for a scheduled show cause hearing in State v. Lopez. For the past eight months the prosecutor hasn't complied with discovery and its show cause day.

Or is it. The judge is in trial and, incredibly, decides that what would work best is for the defense to tell the Court (again) what discovery is missing! Does anyone else see something strange here? The defense is missing whatever discovery the State has not provided, and the defense doesn't know what that missing discovery is.

Which witness addresses have not been updated? Don't know.
Which witnesses have undisclosed arrests and convictions? Don't know.
What transcripts from co-defendants cases have not been provided? Don't know.

Oh well. Like so many cases in Jackson County, we'll sort it out in a post-conviction hearing . . . .

Trial--Day Four; No witness, so plead guilty?

O.K. A good result, but does this strike anyone else as odd?
Show up on Thursday. The State still doesn't have their witness. So, it would seem in the normal world, the State would have to dismiss.
Ah . . . but it's Jackson County, Missouri. The State would dismiss and refile the same case and, presumably, wait another 2 years and two weeks to find their witness and, if they didn't, just dismiss and refile again. In this insane system, you can be kept in jail forever by the State dismissing and refiling the same case.
In any event, plead to 10 years on voluntary, and client got two pending robbery first degree cases reduced to robbery second and 10 years, concurrent.
Good result, but it seems odd pleading guilty when the State doesn't have their necessary, sole witness.

Brother, Can I get a Trial?

Third day for trial, jury still not sworn, and the prosecutors have lost the witness they found on Monday. Judge recesses the case and jury sent home.
We had entered our appearance on this case about 5 weeks ago and, instead of having our client sit in jail for another year or two, kept the trial setting.
It seems easier to just go to trial than waiting several years for what may or may not be a reasonable plea offer. The offer in this case is 20 years on murder second degree. It's become a sad fact of life in Jackson County that you don't get good offers until trial.
Now, in trial, we still don't have a good offer.
And the State does not have their witness.

Poor Jackson County Jurors.

Murder trial with a Tuesday start. That's usually a good thing since we get to start jury selection right at 9:00 a.m. instead of waiting until the afternoon like on Monday starts. (Strange how jury selection starts Monday morning everywhere but in Jackson County.)
Alas, no early start. Jury panel arrives at 11:15. Jury isn't  picked until 7:00 p.m. That's a long day for $5.00 jury pay.
Prosecutor asks to not swear the jury until Wednesday and has "found" another witness. The witness they couldn't find for two years, two weeks and a day has been continuously working at ReStart since the shooting.

Murder Trial--Does the State need witnesses?

Another murder trial. Shooting during a drug deal gone bad. Client went to ReStart to get some dope, and instead the "dealer" and his partner got into the vehicle and pulled a gun. Client shoots dope dealer's partner.
State has one eyewitness. State has not talked to witness. Ever.
Homeless witness last talked to by police two years and two weeks ago.
On the Monday of trial, State finds their witness, so we'll start jury selection on Tuesday.
Should be interesting since witness does not see the start of the struggle.

Oh No! Not Again!

Another day, another discovery violation.
Ever since Merriweather v State, it's been clear that the prosecutor's duty to disclose convictions of State witnesses is taken seriously by the Supreme Court. After all, only the prosecutors have access to computerized databases such as NCIC and MULES.
Representing a man on a post conviction hearing. There had been an undisclosed deal with a co-defendant (dismissal--pretty good deal!) but the prosecutor had, belatedly, disclosed convictions on four State's witnesses. Since convictions are so rarely disclosed, started looking at the four witnesses on case.net.
Oh No! The first witness had additional convictions, not disclosed.
Oh No.! The second witness had additional convictions, not disclosed.
Oh No.! The third witness had additional convictions, not disclosed.

Oh No.! The fourth witness had additional convictions, not disclosed.
A perfect record! All told, about 10 missing convictions.
Perhaps most alarming is that the prosecutor says that they ran the witnesses and the convictions didn't show up. Pretty good evidence that however the prosecutors are "running" their witnesses is being done correctly.
We'll see what happens now.

A Fish Called Wanda, or Why I Killed the Goldfish

Poor Goldfish. These little critters had survived a house fire, and were just hanging out, hoping for some food, checking out the strange young boys in the house.

But it's Chicago, and the young boys are burglarizing the house. Having watched way to many television shows, the youngsters know that if you're doing a crime, you leave no witnesses.

The first link to the burglary (with the headline "Fish poisoned during burglary") is here. http://triblocal.com/arlington-heights/2011/01/26/fish-poisoned-during-burglary/

Pouring hot sauce, mustard, ketchup and spices into the fish tank did the trick. It initially sounded like the burglars were spicing up the fishes for a little snack, but subsequent investigation showed the real purpose of fouling the fish.

A 16 year old boy claims to have killed the fish because he "didn't want to leave any witnesses." Neadlining with "Goldfish killer 'didn't want to leave witnesses,' police say", the article in the Daily Herald is here. http://www.dailyherald.com/article/20110211/news/702119847/

The Supreme Court giveth . . .

In Skinner v. Switzer, No. 09–9000, the Supreme Court finds that post-conviction requests for DNA evidence can be raised in both habeas corpus proceedings AND under 42 U.S.C. section 1983. It's a Texas case, so maybe the Supreme Court wants to open more avenues for addressing what seems to be a pretty bad criminal system.

In Wall v. Kholi, No. 09–868, the Supreme Court finds that the phrase "collateral review" under 28 U.S.C. section 2244(d)(2) means judicial review of a judgment in a proceeding that isn't part of direct review. In simple terms, it allows review of a Rule 35 motion filed 11 years after defendant's conviction for first-degree sexual assault and finds that such review is not time barred.

In Pepper v. United States, No. 09–6822, the Supreme Court finds that it is appropriate for the district court to consider post-arrest/plea/sentencing rehabilitation. Of course, this was Pepper's fourth appeal of the 8th Circuit's typically extreme treatment of a criminal defendant.

Don't Try to Rob the Weed Man

Client working hard over the holidays, trying to keep up with customers wanting a little weed.

One such customer decided to rob the weed man, telling just about everyone in the world he planned to do a robbery and borrowing a gun.

Client dutifully hands over weed at gun point, isn't as keen on giving up his watch, and in the end shoots and kills the guy.

Charged with murder second degree, ACA, and drug distribution, the prosecutor agrees that the situation is unusual. Client gets 5 years on involuntary manslaughter, 3 on ACA, and 5 on distribution.

Very Good Video

007 appears in a two-minute video to mark International Women’s Day.
The film is aimed at highlighting inequalities experienced by women around the world.
The voiceover to the video is provided by Judie Dench, who plays Bond's controller M in the spy films.
She asks whether 007, as "someone with such a fondness for women", has ever considered "what it might be like to be one".

http://www.telegraph.co.uk/news/newsvideo/celebrity-news-video/8366190/Daniel-Craig-drags-up-in-James-Bond-charity-video.html

Why you should never talk to the police, part 1,234,873

The insanity continues. As KCPD laments their inability to solve murder cases, I experience yet another in the seemingly endless examples of how not to deal with witnesses and the public.

Client and friend are going to house where friend is going to pay back $50 to female friend. All above board: returning some borrowed money. Not for drugs or sex or bribery of public officials.

Client drives friend, who gets out and approaches female. Guys with female start arguing with friend and fight starts. Client is still in car, watching. During fight, gun comes out and one of the guys is shot and killed. Friend gets in car and client drives off.

Client didn't have gun, didn't anticipate any problems, didn't shoot anyone, didn't do anything more illegal than witness a shooting.

So . . . client gets charged with murder first degree! Amazing probable cause statement, tells straight story--no criminal activity, just a witness to a shooting. Now, it's alarming that a detective thinks that's a crime. More bizarre is a prosecutor signing off on probable cause. And a judge signed the complaint. And a grand jury indicted.

$500,000 cash only bond (reduced by Judge Youngs, who probably read the (lack of) probable cause statement. Now, realizing that no crime was committed by client, the prosecutor wants him as a witness.

Instead of dismissing and apologizing for arresting, charging and incarcerating a mere witness, the prosecutor is offering a "deal:" plead to a felony of hindering prosecution, take four years, be a snitch.

We have declined the offer.

And they wonder why the public doesn't want to cooperate . . . .

It took over six years, but Larry gets probation

Larry was charged with murder first degree for a drug deal gone bad. Problem was, he didn't have a gun, didn't plan a robbery, didn't shoot anyone, cooperated with the police, was nearly killed in the Jackson County Jail and sentencing was today in front of Judge Atwell.

After listening to the attorneys, and aware that Larry had spent over six years in the county jail (and almost been killed for cooperating), Judge Atwell gave Larry a twelve year sentence, but probated the sentence. He got 10 years on armed criminal action, but should have that time already done.

So, we were hired to try for a 15 year sentence, and Larry gets probation.

My best guess is that the six years in county cost taxpayers about $125,000 before tacking on the medical bills for the beating in jail--maybe another $300,000. Even with the waste in government, would think that money could have been better spent.

Oh No! Not Again!

O.K. In a most unusual happening, we have a post conviction case where the Jackson County Prosecutor appeared to have actually provided all discovery. Well, everything except what they say they don't have to provide.

We have this ongoing dispute, or actually a few disputes. In this case, the prosecutor cut a deal with a co-defendant. Jackson County Prosecutors think that it is O.K. to cut a deal and not tell anyone until the deal is done: I'll give a witness probation, but it's not a done deal until probation is given, so they claim they don't have to disclose the deal.

Or, the prosecutor sits in on a deposition of a witness taken in a co-defendant's case. So, there is a statement under oath by a state's witness, but the prosecutors think they don't have to disclose that.

ANYWAY, in this post conviction case, other than not disclosing a deal and not providing a deposition of a witness, the assistant prosecutor had apparently done pretty well.

The prosecutor had actually provided a list of witnesses with convictions!!! Now, of course, that is required by Supreme Court Rule, but in Jackson County the prosecutors just ignore that little detail. Even though the Missouri Supreme Court, in Merriweather v. State, said that the failure to provide convictions is a due process violation and automatic reversal, it is still something that Jackson County doesn't do very often.

Anyway, the prosecutor in this case had listed four witnesses with convictions. On a lark, I entered the first witness in casenet (the public website listing Missouri criminal cases). Now, casenet won't show all convictions, won't show closed convictions (like suspended imposition of sentence), but it's pretty good.

First witness . . . casenet shows two convictions not disclosed by the prosecutor.

Second witness . . . casenet shows five convictions not disclosed by the prosecutor.

Third witness . . . casenet show one conviction not disclosed by the prosecutor.

Fourth witness . . . casenet shows two convictions not disclosed by the prosecutor.

Don't know what database the prosecutor is using, but it makes you wonder if they EVER disclose convictions as the Supreme Court requires. Most bizarre is that they had disclosed out of state convictions and convictions from other counties, but had missed convictions from Jackson County.

Six years in the Jackson County Jail can kill a person

Over six years ago, Larry got arrested for a shooting that he didn't do. Yeah, he was there for what was to be a drug deal, but the two guys he was with turned it into a robbery and shot and killed a guy. Female luckily escapes. Larry gets charged, the other two don't.

In an all too common twist, Larry--the one who didn't have a gun, didn't plan a robbery, and didn't shoot anyone--gets charged with murder first degree.

Larry's original attorney got a 20 year offer, but Larry thought it was, or should be, a 15 year offer. Hires us to try to get a 15 year offer.

Another APA Bryan Krantz case where Bryan says Jim Kanatzar won't authorize any plea. Yada, yada, yada. After sitting in the Jackson County Jail for YEARS, Larry again meets with detectives to again tell what had gone on.

Apparently, someone didn't like what Larry was saying. In Jackson County Jail, Larry gets thrown over the railing and stomped on. He's clinically dead, rushed to the hospital, in intensive care with some serious brain damage.

Enter APA Michael Hunt, who takes the case from Krantz and Larry is sent to Fulton for some evaluation and therapy.

After being in jail for over six years, Larry got his deal today, pleading to a lid of 15 years on the murder case in front of Judge Atwell. Sentencing is March 4.

Pre-Trial Publicity Stunts by Prosecutors

"More than 100 US mobsters arrested in "largest Mafia round up in history': US Attorney Eric Holder." N.Y. Post

WHY BOTHER WITH A TRIAL WHEN THE US ATTORNEY CONVICTS YOU IN THE MEDIA?

Some Constitution. A defendant is presumed innocent, until the prosecutor holds a press conference and proclaims guilt. There ought to be a rule prohibiting such pre-trial publicity stunts.
Oh. There is. Prosecutors just ignore it.

Rule 3.8 Special Responsibilities of a Prosecutor
The prosecutor in a criminal case shall: (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's actio and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial liklihood of heightening public condemnation of the accused, and exercise reasonable care to prvent investigators, law enforcement personnel, employees, or other persons assistant or associated with the prosecutor in a criminal case from making an extradjudicial statement that the prosecutor would be prohibited from making under Rule 4-3.6 or this Rule 4-3.8.

So, who prosecutes prosecutors when they violate the rules of professional responsibility?

Good question. If you find out the answer, let me know.