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.