Howard "Ray" Stephenson--A likely murder trial in Jackson County

This has potential for a trial, so I thought I'd start keeping tabs on how homicide cases really work in Jackson County. Howard Stephenson is charged with two counts Murder First Degree and two counts Armed Criminal Action.
Howard "Ray" Stephenson is a mid-40s black male married almost 25 years to Michelle, and they have 4 kids: Marcus, Rachel, Cody and Colby. (An interesting side note is that Ray's brother Donald is offensive tackle for the Kansas City Chiefs.)
On April 29, 2013, Michelle was driving Ray and the kids back from the barber shop, and as they drove down Blue Parkway, Jaron Syrus and Qwentelia VanZant (with their two young kids, Jaron and Honesty) pulled up and started yelling at the Stephensons. It was decided to pull into Discount Smokes and "squash" the argument. Just a few minutes after pulling in, Jaron and Qwentelia are dead.
It looks like self-defense/defense-of-others to me. Original prosecutor talked about one count of voluntary manslaughter, new prosecutor is taking tougher stance.
Everything at Discount Smokes is captured on two surveillance cameras, without sound. The argument/fight takes place pretty far from the cameras, so it's not real clear. The State sent the video to some expert, but when the two cameras play side-by-side, they get out of synch. I'm requesting a continuance of the November 10, 2014 trial date to see if the video can be improved. Prosecutors have no objection to continuance, since a better video would be helpful.

Unauthorized (and unethical) practice of law.

Just another day dealing with the bull that goes on in Jackson County. Shelley called our client's wife to talk with her, and was told that Marilyn from the Prosecutor's Office told her that she was not allowed to talk with us without prosecutors being present. Now, Marilyn presided over the prosecution mob in Monday's riot in the Courthouse. Now she's giving legal advise to witnesses. Makes me cringe to see my taxpayer dollars at work!

Another day. Another courthouse assault.

So, after yesterday's riot, it turns out that although four were arrested, no charges were filed! Guess it's o.k. to assault people in court, as long as you're invited by the prosecutors. One concussion, one with stitches, four to hospital for an assault ON VIDEO and no charges filed. Dan Ross covers something before Judge Sauer (same floor as yesterday's assault) and as he walks out of the courtroom, baby's mama (State's witness) attacks with a high heel shoe (certainly an article or substance capable of causing serious physical injury in the manner in which it was used). I arrive later and ask the deputy on duty if he was present. Yes. Did you arrest her? No. The escalating violence by prosecution fans is out of control. The police don't step in when it's an assault, and from past experience we know it will be worse on the street than in the courthouse.

Prosecution mob causes riot in court

Prior to arraignment, brother of victim had pointed gun at my client's mom and brother on two separate occasions. Of course, the police did nothing, even though victim's brother on felony probation. So, I show up for arraignment and the prosecution has gathered an impressive mob. The "victim advocate" has a group of about 50 in the courtroom, and my client's well-dressed, professional family and friends are woefully outnumbered. I let the sheriff's deputy know that we need more security, and she notes my client's name by writing it on her hand. Judge Torrence comes out, admonishes the crowd to be civil, calls our case first, and everything is fine. There's a big crowd outside, and another deputy offers to walk me out the back way. As we are about to the door, we hear the eruption in the hall and both go outside. It's a riot. My client's family and friends are getting a beat down, blood and hair flying, and there is no end in sight. The sheriff calls for backup, I move to break up one group and a female comes in with fists flying. I run into the courtroom and yell for more sheriffs. When I come out, the prosecution mob has my client's step dad down on the ground. He's not moving and they're stomping on his head. Still only one sheriff, and he's not doing anything. Back to the courtroom yelling for an ambulance. Attorney Dave Suroff comes out and starts yelling for people to stop, with a volume that was the "voice of god" and it had some effect. This had been going on for about 10 minutes, and a plain clothed detective sheriff came up from the 1st floor, and started telling people to calm down. I think the prosecution mob was just getting tired and running out of people to beat up. About that time, the elevator doors open and about a dozen KCPD officers come out, responding to an call for "officer assist." Only the shouting remained. And the blood. And teeth. And hair. And shoes. And other debris. My client's step-dad wasn't moving and was bleeding from his ears. He got up, in his work uniform, and was covered with blood. Uncle had a nasty gash on his cheek with blood everywhere. Even my client's mom--a classy professional--had a cut on her face. Downstairs, I'm told four got arrested, including the instigator. As he was being arrested, he pointed at my client's brother and said he was going to kill him. Lots of talk about getting their guns, etc. Ambulance comes, lots of cops, four arrests, four to hospital.

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.