To my faithful dear reader (whomever you may be), let me update my terribly outdated blog. During my hiatus from blogging, there has been no shortage of news stories pertaining to criminal law and justice throughout South Florida and the United States, and I have been unfortunately delinquent in covering these developments. So here it goes.
THE MICHAEL BROWN CASE
In my last blog post, I discussed the shooting of Michael Brown. When I wrote the article, we only had a clouded understanding of the facts. We knew: (1) an officer stopped Michael Brown for jaywalking; (2) Michael Brown was unarmed; and (3) that the officer fatally shot Michael Brown. We also knew that the officer alleged that Mr. Brown grabbed for his gun. At the time, I wrote: “What has been reported from eyewitnesses of the shooting suggests that the police fatally overreacted to a show of disrespect.” I also cautioned: “We should wait until a full investigation is completed before drawing conclusions.”
Well, a full investigation was completed, and having read through the exhaustive witness testimony, I think it is fair to say that it is highly unlikely that Officer Darren Wilson overreacted to a show of disrespect. Rather, it seems likely that Michael Brown, having just completed the commission of a forcible felony at a nearby convenience store, attacked Officer Wilson through the open window of Officer Wilson’s vehicle. During the struggle in the window, Mr. Brown grabbed for Officer Wilson’s sidearm, which caused Officer Wilson to fire his gun inside the vehicle, thereby wounding Mr. Brown.
We can be relatively certain of this, thanks to the testimony of multiple eyewitnesses, as well as to the physical evidence collected at the scene. Numerous eyewitnesses testified that Michael Brown attacked Officer Wilson through the window of Officer Wilson’s vehicle. Even among eyewitnesses who were unwilling to commit that Michael Brown attacked Officer Wilson, many nevertheless recalled seeing Michael Brown struggling inside Officer Wilson’s open window. It is inconceivable–and contrary to all police training and common sense–that a police officer would try and pull a 6 foot 5, 289 pound suspect through the driver’s side window of a police vehicle. Clearly, Mr. Brown forced his way through the window, taking advantage of Officer Wilson’s confined position to overpower Officer Wilson.
Officer Wilson testified that while defending himself in the vehicle, Mr. Brown grabbed for his gun. Office Wilson testified that he fired the gun twice, inside the vehicle, while Mr. Brown was grabbing for the gun. The physical evidence clearly corroborates Officer Wilson’s testimony. (1) Shell casings were discovered near the vehicle; (2) Officer Wilson’s vehicle showed evidence that a bullet was fired through the door, from the inside; (3) Mr. Brown’s blood and DNA were discovered inside the vehicle; (4) Mr. Brown’s DNA was found on Officer Wilson’s gun; and (5) according to multiple medical examiners, Mr. Brown suffered a wound to his right thumb, consistent with a grazing gunshot at close range, which was fired between 6 to 9 inches away from Mr. Brown.
After suffering the wound to his hand, Mr. Brown disengaged with Officer Wilson and fled down the street. As he fled, Mr. Brown’s wound dripped blood, providing a forensic track of his path. Based upon this blood splatter, it is apparent that Mr. Brown turned back toward Officer Wilson, returning at least 21 feet from the furthest point from which he fled. This path corroborates Officer Wilson’s testimony, that Mr. Brown inexplicably turned around and charged at him, despite Officer Wilson’s commands to stop. Numerous other eyewitnesses corroborated Officer Wilson’s testimony on this point, describing Mr. Brown’s movement as “charging.” Many other eyewitnesses, who did not describe Mr. Brown as “charging,” nevertheless testified that Mr. Brown turned around and moved toward Officer Wilson.
According to the medical examiners, the gunshot wounds Mr. Brown suffered all entered from the front. The kill shot, which Mr. Brown suffered at the vertex of his scalp, entered in a manner consistent with Mr. Brown’s head having been lowered at the time of the bullet’s impact. This too, is consistent with Officer Wilson’s testimony, as well as the testimony of numerous eyewitnesses. Indeed, one eyewitness testified that when Mr. Brown suffered the final gunshot to his head, he was “charging” Officer Wilson with his head lowered, “like a football player.”
Of course, numerous eyewitnesses testified that Mr. Brown did not attack Officer Wilson. Many of these witnesses disputed the claim that Mr. Brown turned back toward Officer Wilson in a threatening manner. Indeed, some claimed that Mr. Brown never turned back at all. Between these eyewitnesses who dispute Officer Wilson’s account, their versions vary wildly. Some claim that Mr. Brown was shot in the back. Some claim that Officer Wilson ran down the street, firing his gun wildly. Some claim that Mr. Brown raised his hands in the air. Some claim that Mr. Brown extended his arms outward. Some claim that Mr. Brown never raised or extended his arms at all. At least one claimed that Officer Wilson executed Mr. Brown as Mr. Brown lowered himself to his knees, yelling out to his friend: “run for your life.”
These eyewitness accounts, which claim that Mr. Brown was murdered by an overzealous cop, are problematic for a number of reasons. First, they are mostly contradictory to each other in material respects. While it is expected that multiple eyewitnesses will remember incidents differently and provide slightly different testimony based upon their different perspectives, it is not expected that eyewitnesses will so dramatically differ in material respects. Second, their accounts are largely inconsistent with the physical evidence. Whether these eyewitnesses are lying or embellishing or are just confused is beside the point; ultimately, a prosecutor cannot hope to prove a case beyond and to the exclusion of every reasonable doubt with such contradictory testimony.
Which is to say, simply: the criminal case against Officer Darren Wilson is non-prosecutable. Indeed, the takeaway from the evidence is so obvious, it is not open to rational debate. No prosecutor, no matter how talented or persuasive, could possibly overcome Officer Wilson’s presumption of innocence, beyond and to the exclusion of every reasonable doubt. Given the weight of the evidence, any prosecution of Officer Wilson would have been unethical.
Which brings us to the Grand Jury proceeding.
THE MICHAEL BROWN GRAND JURY PROCEEDING WAS HIGHLY IRREGULAR
I cannot recall ever hearing about a grand jury proceeding where the prosecuting attorney presented every shred of evidence and every single witness (including expert witnesses) to the jury. On CNN, Sonny Hostins and Mark Garagos and Jeffery Toobin claimed that the irregularity was an indication of bad faith and “stacking the deck” in favor of Officer Wilson.
Nothing could be further from the truth.
The reality is that the investigation into this shooting will go down as arguably the most transparent, thorough criminal investigation of an alleged act of police misconduct in the history of our nation. We now have transcripts of every eye-witness account of the shooting. We have transcripts of the statements of every major investigating witness. We have a transcript of the defendant’s statement. We have all of the photos; all of the police reports; all of the DNA analysis; all of the CSI reports; and three separate M.E. reports. What’s more, throughout this investigation, the State investigators worked hand-in-hand with Federal authorities.
And yet despite all of this, there remain critics who unbelievably claim that the process was somehow unfair, because a prosecutor could have theoretically received a true bill, if the prosecutor only presented a fraction of the evidence. Why a prosecutor would want to indict a case he could never hope to successfully prosecute is a question the critics leave unanswered.
If this were any other case, in which the prosecuting authority was not facing intense national scrutiny and the threat of mob violence, this case never would have gone to a grand jury at all. This case would have been “no-filed” by the D.A.’s office based upon the conclusion that either: (1) the evidence supports a finding of justifiable homicide, or (2) given the totality of the evidence, there is no reasonable likelihood of successful prosecution.
However, had Bob McCullough simply “no-filed” this case (which, it should be noted, happens regularly), the media and social justice agitators would have vigorously protested. They could have justifiably complained that one D.A. made a decision behind closed doors, with the intent of shielding a police officer from justice.
So, Mr. McCullough took the only politically viable option open to him: he presented the investigation in its entirety to the grand jury, and then published the proceeding. This option provided maximum transparency.
On the other hand, this option placed Mr. McCullough in a bizarre position. He decided to take a case to the grand jury, knowing that even if he could make the case for probable cause, he could never make the case for guilt, beyond and to the exclusion of every reasonable doubt. When a prosecutor does not believe he/she can prove a case because he/she believes there is reasonable doubt, it is the prosecutor’s ethical obligation not to proceed.
Unfortunately, the threat of violence and the unprecedented scrutiny of the case all but foreclosed the possibility of Mr. McCullough proceeding in the normal fashion. I sincerely believe he proceeded in the best way possible, given the circumstances. That those circumstances included threats of mob violence is a sad commentary indeed.
GEORGES SOREL LIVES!
When reading through the witness statements and testimony made to the grand jury investigating the death of Michael Brown, it is readily apparent that the popular narratives of Michael Brown’s last moments are largely myth. According to numerous eyewitness accounts, Brown never raised his hands in surrender, much less cried out: “don’t shoot!” Even of those witnesses who claim that Officer Wilson unjustifiably killed Michael Brown, a surprising number do not recall Brown raising his hands or crying out for mercy.
Yet, despite this record of evidence, which in today’s hyper-connected era of information is readily accessible to anyone with the curiosity to look, we’ve had protestors all over the country walking down streets, walking out of class, walking into football arenas, and performing at the Grammys with their hands in the air, chanting the catchy and dramatic phrase: “hands up, don’t shoot!” Everywhere, people have protested police violence, racial profiling, and the statistical disparities between white and black America. They have protested not simply because they recognized that these issues exist (and they do), but because they *believe* a white cop gunned down a surrendering black man in Ferguson, and got away with it.
Certainly, the underlying frustrations and concerns of many of the protestors are understandable and rational. There is no shortage of examples of police misconduct across the country in which the common denominator is often the skin color of the person suffering at the hands of overzealous cops. Which is why it is so strange that these other instances of actual injustice have not sparked the widespread outrage that the shooting of Michael Brown has ignited (I’ll touch on Eric Garner’s death below).
Simply stated, people are mythologizing the death of a man whom–according to the weight of the record evidence–the police did not profile (he was initially stopped for walking down the middle of the street, blocking traffic) nor assault. Quite the contrary, the record reflects that the man had just completed a violent felony and had viciously attacked a police officer, going so far as to try and take the officer’s gun.
Of course, to be fair, the protestors don’t actually believe what the record reflects. They don’t believe Michael Brown attacked Officer Wilson. Unfortunately, their disbelief is not the result of critical analysis or reasoned judgment; rather, their disbelief is the result of willful ignorance of the facts and their own emotive feeling. Apparently, for many of the protestors, there is no need to review the statements and testimony of those people who actually witnessed the shooting, because the “truth” of the movement trumps the facts.
If the French radical, Georges Sorel, were to time travel to the present, he would immediately recognize his theory at work. Sorel, who not only influenced leftist and fascist radicals in the early twentieth century, but who also influenced the development of Saul Alinksy’s “Rules for Radicals” in the 1960’s, championed the power of myth to inspire social action. Sorel rejected the conventional Marxist wisdom that the masses would act rationally based upon their economic interests. Rather, according to Sorel, the masses express their will based upon a higher, more authentic motivator: emotion. Sorel thus perceived myth as a means of achieving praxis; of awakening the masses to action. Myths, according to Sorel, are “artificial combinations invented to give the appearance of reality to hopes, [which] inspire men in their present activity.” From the Sorelian perspective, efforts at reviewing cold facts, evidence, and analysis are debilitating, whereas myth, emotion, and passion are creative.
However innocent Darren Wilson may be, professional agitators view Wilson and the shooting of Michael Brown as set pieces in a wonderfully crafted myth, designed to excite passions and emotions and to inspire protestors to action. Thus, an image of arms in the air–universally recognizable as the symbol of surrender–is plastered across television sets across the nation, appealing to the emotions of young activists everywhere. These activists may not know what they want, but they know that action is imperative. Do they want body cameras on all law enforcement officers, or do they want an end to the commercialized frenzy of “Black Friday”? It doesn’t really matter. They must do something!
THE DEATH OF ERIC GARNER
While protestors continue to make use of the “hands up” symbolism, they have also begun to chant the words “I can’t breath,” in response to the death of Eric Garner in Staten Island.
Mr. Garner, an unarmed black man, was killed when a white NYPD officer, Daniel Pantaleo, forced Mr. Garner to the ground, locking his arm around Mr. Garner’s throat, despite Mr. Garner’s cries that he couldn’t breathe. The police allege that Mr. Garner was selling un-taxed cigarettes, known as “loosies”, and was resisting lawful arrest. Unlike the death of Michael Brown, the killing of Mr. Garner was caught on camera and the footage was shared with all of the world to see.
The death of Mr. Garner was without justification. While it is true that Mr. Garner was resisting officers, he was not attacking the police, nor was he resisting violently. What’s more, the police have not shared what evidence they had that Mr. Garner was actually selling “loosies” that day, or was violating any other law, other than an uncorroborated complaint from a local business owner.
Furthermore, it appears evident from the video that Officer Pantaleo used a “choke hold” against Mr. Garner, in violation of NYPD policy. While violating NYPD policy is not necessarily a crime in and of itself, it is certainly relevant when determining whether Officer Pantaleo grossly deviated from a reasonable standard of care. All things considered, the death of Eric Garner seemed ripe for prosecution.
And then the New York grand jury inexplicably failed to return an indictment.
Their decision not to indict is puzzling, given the apparent strength of the State’s case. To begin, under New York law (and I must admit, I am not licensed in New York, nor am I familiar with the case law interpreting New York’s criminal statutes), the crime of “Negligent Homicide” is defined as follows:
“A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.”
“Criminal negligence” is defined as:
“A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”
Thus, in order to prove the case against Officer Pantaleo, the prosecution would need to prove, beyond a reasonable doubt, that the officer (1) failed to perceive a substantial, unjustifiable risk of death, which constituted a gross deviation from a reasonable standard of care; and (2) as a result of that failure, caused the death of another person.
Well, if an officer is (a) trained not to use a choke-hold when detaining a suspect; and (b) uses an impermissible choke-hold to detain a suspect, which is confirmed by video; and (c) two M.E.’s confirm that the impermissible choke-hold contributed to the cause of death of the suspect, then it seems to me that the State has a valid case that the officer grossly deviated from the standard of care that a reasonable person would observe when detaining a suspect.
The issue is not whether the officer intended to kill Mr. Garner; the issue is whether the officer, based upon his training, should have perceived the potential risk of using a choke-hold. I think it is fair to say that the NYPD forbids a choke-hold for a reason; a choke-hold can cause severe, unintended medical consequences.
So why didn’t the grand jury indict?
Of course, it is always difficult to indict and successfully prosecute police officers, because the law authorizes officers to use reasonable force when effectuating an arrest. People are aware that officers often operate in high stress situations, in which decisions have to be made quickly, and in which unforeseen consequences can occur. Yet deference to law enforcement should not eclipse accountability. Simply stated: the grand jury’s failure to indict Eric Garner is immensely frustrating and unjust. Absolutely, not only did there exist probable cause to prosecute, but given the facts, the State should have had a good faith basis to believe that it could have successfully obtained a conviction.
OOPS! THE FLORIDA LEGISLATURE ACCIDENTALLY LEGALIZED “SEXTING” BETWEEN TEENS!
Recently, in State v. C.M., the Fourth D.C.A. ruled that the State may not file delinquency petitions against minors for violating F.S. 847.0141(3)(a), which forbids “sexting.” For the uninitiated, “sexting” is when an individual texts nude photographs to another individual. Between consenting adults, “sexting” is nothing more than a bad idea; however, when an individual texts nude photos to a minor, a serious sex crime is committed, which may likely result in the individual being registered as a sex offender.
Prior to the passage of F.S. 847.0141, teens were texting nude photos and sending them to boyfriends and girlfriends, never considering that they were engaging in the transmission of child pornography. In some instances, teenagers were required to register as sex offenders because they possessed nude photos of their boyfriend or girlfriend. (As to the linked article, it should be noted that Mr. Alpert transmitted a nude photograph of his girlfriend to others, without his girlfriend’s consent. That act touches on the emerging phenomenon of “revenge porn”, which is another issue altogether, and one for which the law has yet to address)
In order to spare teens from this extreme penalty, which is so disproportional to the offense, the Florida legislature passed F.S. 847.0141. Under the law, the penalties for minors who engage in “sexting” are ratcheted up, depending upon the number of prior convictions. Thus, for a first violation, the violation is treated as a “non criminal offense,” punishable by only 8-hours of community service or a $60 fine. For a second violation, the violation is treated as a first degree misdemeanor. For a third violation, the violation is treated as a third degree felony.
That really doesn’t sound unreasonable, but there’s a problem. The statute did not create a process or mechanism through which the State might enforce the law. Apparently, the legislature presumed that prosecutors would proceed as they do in any other delinquency case, by filing a petition for delinquency. Unfortunately for the State, a petition for delinquency must allege a criminal or delinquent act, which, under F.S. 847.0141, a first offense of “sexting” is definitely not.
So, until the Florida legislature amends the law, there’s no procedural mechanism through which the State might prosecute a minor for “sexting.”