Arizona Criminal Law & Sex Crimes Post

I will have a podcast this Friday May 31 at 3:30 PM AZ/PAC and 6:30 PM EAS time. See this link if you would like to listen and call in. Be sure to follow me on twitter @vlga, like my facebook page, and sign up for updates on future podcasts. 

One of the peculiarities of the death penalty process in Arizona is that the same jury that decides guilt or innocence also decides whether someone convicted of first degree murder is sentenced to life or to death. In the Jodi Arias trial, as most people are aware, the jury found Ms. Arias guilty of first degree murder, but could not decide on whether to give her life or death (see "No sentence for Arias; county weighs options"). 

But the verdict was not a verdict at all: The jury could not reach a unanimous decision about whether to sentence Arias to death. Instead, they split 8-4 in favor of death.

...

[Judge] Stephens declared a mistrial, then set a date for July 18 to empanel a new jury and reconsider the penalty stage of the trial. The first-degree murder conviction and the aggravation finding that the murder was especially cruel will stand.

Because the jury was hung on the issue of life or death for Ms. Arias, the prosecutor must now decide whether to pursue another jury to sentence Ms. Arias to the death penalty, or offer her a plea bargain in exchange for saving her life. While it may seem like Ms. Arias would obviously accept that offer, I am not so sure. For one thing, it could take about 25 years before Ms. Arias would actually face execution, and considering the likelihood the Supreme Court could turn away from punitive jurisprudence, a new Supreme Court could very likely hold the death penalty unconstitutional. 

But what does she have to lose in any event by accepting a life sentence? In exchange for taking the death penalty off the table, Ms. Arias would have to waive all her appeal rights. That means her appellate lawyers would not be able to argue the various appeal issues, not least of which include no sequestration, the improper felony murder charge, and the government's changing theory leading to finding of cruelty. And considering the fact this jury that found her guilty in the first place couldn't agree to give her the death penalty, why would another jury?  And if a second jury agrees on the death penalty for Ms. Arias, it is not all together clear a second jury finding death after the first jury deadlocked would survive a constitutional challenge. The law on this particular topic is unsettled. 

From my perspective, Ms. Arias has very little to gain by accepting a life sentence without parole in exchange for removing the death penalty. Even assuming the worse case scenario, she is executed in approximately 25 years at close to age 57, her estimated life expectancy past age 60 in prison would very short anyway. 

One interesting side note on this whole mess is, assuming for the sake of argument that it is constitutional for the jury that determined guilt or innocence (Jury 1) to be different from the jury that determines life or death (Jury 2), why shouldn't that be the process in every death penalty case? What I mean by that is if the same jury determines guilt and sentence, then all prospective jurors who are anti-death penalty do not participate in determining guilt or innocence.

That means all the remaining jurors are probably authoritarian, or at least pro-law enforcement, and thus potential jurors who would be somewhat sympathetic to defense are automatically off the jury. Jurors who lean pro-police or pro-defense is normal and common. It is a fair representation of our society as a whole. It is the very essence of a "jury of our peers". As such, why not instead let any qualified juror serve during the guilt phase of the trial, whether or not he believes in the death penalty, and then let a second death penalty qualified jury determine the actual sentence?

By having two separate juries, one determines guilt and another the sentence, we would ensure the first jury would actually be a fair representation of the community. But the way things stand now, Ms. Arias was never actually "judged by a jury of her peers"; she was instead judged by a jury in which all the jurors believe in the death penalty. That is not even remotely the same thing.

For a great discussion on this particular point, see "Death Qualification Process Leads to Jurors More Likely to Convict" by Natasha Minsker.  

Research shows that our prejudiced “qualification” process produces juries that are more likely to convict. Prospective jurors who make the cut to serve are more likely to believe prosecution witnesses and less likely to ask probing questions. As a result, many researchers believe innocent people are actually more likely to be wrongfully convicted in a death penalty case.

By Pitchforks: 

In the immediate aftermath of the Jodi Arias capital murder trial Guilty verdict, spectators outside the Phoenix courthouse who made up the banner-bearing “mob” – ironically, Nancy Grace’s term, repeated in her HLN commentary at least 3 times immediately before the verdict – remarked that their faith in the criminal justice system had been restored.

Restored from what? And to what? One Guilty verdict, assuming it is not 100% wrongful, has no significant impact, positive or otherwise, on the integrity of the criminal justice system. That people should be attributing such importance to one obscenely media-hyped case, a case that but for the arbitrary prominence that the media ascribed to it is no different from myriads of cases in the US, is truly disturbing. It speaks loudly about the general public’s distorted notions of what constitute significant news events, and how their perceptions have been grossly warped by the media.

What these misguided trial groupies really mean is “This is just compensation for Casey Anthony.” Two years ago, when Anthony was acquitted in Florida in her capital murder trial, the reaction was exactly the same: the verdict was received as extremely significant in the vast machine that is the US criminal justice system, but for a different reason, the opposite reason - that it made people “lose faith” in the criminal justice system. Just as now, this reaction was wrong-headed in the extreme. Apart from the fact that the outcome was unremarkable given the real evidence - not the irrelevant litany of smut and ridiculous conjecture propagated by the tabloid media and swallowed as gospel fact by every perimenopausal woman watching cable TV – it broke no legal precedents nor established any new guidelines as to procedures of judicial practice.

Do any of those whooping, whistling and air-punching punters congregated outside the Maricopa County courthouse have any idea what is actually happening in the criminal justice system, how it is being tainted by prosecutors, judges and law enforcement departments being so aware of today’s media scrutiny and reporting of their minutest decisions and performance styles that they are either overly-concerned with not arousing public disapproval, or motivated by a lust for fame and resultant promotion or political advancement? These tendencies have intensified over the past thirty years because of government and media exaggeration about increases in crime rates, and the accompanying misinformation that society has become “soft on crime”. The criminal justice system has been falling over itself to convince the public that more criminals are being swept off the streets and that the incentives to commit crime are being greatly diminished by harsher sentences. The fact that the latter correlation is not borne out by statistics does nothing to assuage the impetus towards putting more people in prison for lesser crimes and for longer terms.

How many of those on the courthouse plaza, chanting “Justice for Travis!” in unison after the verdict was announced, understand that “justice for all” is being greatly undermined by a lucrative private prison industry insinuating itself into state budgets, with states guaranteeing private prison corporations full capacity for periods as long as twenty years, so that US incarceration rates are outrageously high, and sentences disproportionately long compared to other countries? The US incarcerates six times more people than the world average, with 25% of the world’s prison population situated in the US even though America constitutes only 5% of the world’s population. The motivation to put people in prison in the US now has less to do with making society safer than it has with lining the pockets of private prison executives. This situation began to take hold in the late 70’s and early 80’s, since when there has been a dramatically steep climb in the numbers of prisoners in the US, as well as a drastic lengthening of prison terms.

These two broad effects, media scrutiny of the criminal justice system and the move towards increasing numbers of private prisons, in turn affect the minutiae of criminal proceedings, corrupting the processes of arrest, charging, collection of evidence and trial. Such conditions increase the incentives to plant evidence or use coercive and even illegal interrogation methods on the part of law enforcement, for police officers to lie in court, for prosecutors to hide evidence, influence witnesses’ testimony, and overcharge crimes, and for judges to collude with prosecutors, all with the aim of assuring convictions and obtaining the longest sentences because the imperatives and the rewards are so great.

And putting the icing on the judicial cake is the increasingly widening and insidious contamination of any impending or future jury pool by a tabloid media that peddles simplistic, boiled-down fairy tales with good and evil archetypes, urging their audience to cheer and fawn at the heroes and heroines, and hiss and boo at the monsters and witches as in some tawdry, childish English pantomime. Murder trials have become a form of immature escapism onto which people project their personal insecurities and prejudices, attaching their anonymous and perhaps unacknowledged private anger and frustration - that in reality comes from their own lives - to a publicly embraced cause célèbre Like children who appropriately play and fantasize through their fears, anxieties and confusions in order to integrate them, these adults are inappropriately playing out emotions that would be better expressed and employed in their personal lives, not through the media-mythologized personal tragedies and misdemeanours of other heretofore anonymous individuals with whom they have no meaningful connection. Unlike for children, where imagining and role-playing in stories helps them to think, develop, mature and separate fantasy from reality, for adults, such misdirected and excessive investment of one’s negative psychic energy in media-distorted stories only serves to stunt emotional flexibility and grossly limit understanding of the complexities of human nature.

The public has been brainwashed into thinking that the criminal justice system does not do enough to punish offenders, so it is necessary for the media to take over and prosecute them in collaboration with the public. Members of the public are cajoled into thinking that each one of them is individually important, not only in making sure the defendant is punished – before he or she is tried, as well as after, but also in “supporting” the victim’s family and friends. Suddenly, anonymous individuals all over the country experience the adrenaline rush of feeling significant, that they can “be there for the family” and make sure the defendant gets his or her “just deserts”: character assassination, humiliation, ridicule, sexual exposure, negative interpretation of everything they have ever done in their life, from removing a cardigan to having the gall to be born with odd-looking eyes.

Such public prosecution by the masses is absolutely necessary and justified because years of detention before trial, separation from friends and family, loss of income, undergoing police investigation and public parading in a courtroom are not sufficient to expose and punish a person while they are supposedly not yet determined to be guilty. A person must be destroyed before they get to trial, just in case they “get off”, and to make sure that as many people know about their awfulness as possible so that hopefully, the jury members will know what the “facts” are and make the “right” decision. The public is complicit with media networks that saturate the airwaves and cyberspace with details about the defendant, however unsubstantiated, particularly during a trial, so that jurors who go home at night are unlikely to avoid “inadvertently” hearing or seeing something that has “need-to-know” value.  Even sequestered juries get family visits, and who knows when a hushed, private moment might not be advantageous for a little “updating” about what “everyone” thinks……….and expects. And if the defendant is acquitted because the jury is a bunch of “village idiots”, there will be the satisfaction of knowing that they can never live safely again in society. Lest they forget and need a reminder of their correctional-officer-substitute status, along with a boost of hate-serum, the public can rely on HLN to nudge them periodically with references to “what happened in Florida” and nostalgic montages of highlights from trials past, or clips from incriminating interviews of the defendant.

But these inconvenient, intrusive and complicated matters don’t concern Mary-Lou, the fine upstanding middle-aged citizen in shorts and T-shirt, milling on the courthouse plaza with her new trial-following buddies who she “met” on the In Session chat-room. They hover as near to Jane-Velez Mitchell and her padded microphone as possible, watching in hushed reverence as she interviews one of the ubiquitous Hughes clan, the leaders of the “close friends of Travis” – as well as the public Travis Alexander adoration cult - who have insinuated themselves, their flimsy feeling stories and subjectively interpretable video clips onto every show during HLN prime time. David Hughes declares vehemently, to the obediently-nodding affirmations of the devotees, that when the verdict was read Jodi had “no emotion” and that she was “smirking” at the jury as each one confirmed their decision. When Mary-Lou gets home and watches the verdict-reading and Jodi’s close-up on TV she will choose not to notice Jodi’s open-mouthed gasp on hearing “Guilty”, nor see her tear-welled eyes, lip-biting and quivering chin, glancing frightened and questioning at each juror in turn as they repeat “Yes.” Jodi is a monster - HLN and the Hughes have taught Mary-Lou that, so she is blind to Jodi’s nonexistent human reaction.

What is important is that Mary-Lou and her friends get a chance to declare their elation and allegiance to Travis’ family on camera - supporting this innately unremarkable group of victimized, bereaved but glamorized strangers with whom they have no connection whatsoever except via the unctuous tones of “Dr” Drew coaxing them to share their good vibes and despising ridicule of Jodi through their flat-screen TVs. They were so afraid they were going to get another “Casey Anthony”! Justice has finally “unfolded”…….. for Travis!

Any one of these “Justice for Travis” faithful could find themselves one day on the wrong side of the law, or in the wrong place at the wrong time, perhaps fitting the criteria or profile of a certain demographic group and be subjected to police corruption, deprivation of rights and distortion of interrogation-room statements. If they end up at trial they will be no more immune to media exposure and humiliation than the mugs who end up daily on Nancy Grace’s Facebook page for humping a sofa on the street because they forgot to take their meds, getting a bit sloshed while celebrating their son’s 19th birthday with him at the bar, or turning a blind eye to their daughter smoking a joint with her friends in the basement – with the music turned up a bit too loud.

These naïve and jubilant citizens are clinging to their misguided notion that the Jodi Arias Guilty verdict is a victory for the country, rather than what it really is: a common and banal, though gruesome story of interpersonal violence turned deadly, transformed into a carefully orchestrated and manufactured fake media epic, manipulating the masses and raking in billions in ratings-generated ad revenue. Until now commitment phobia, porkie-pie telling and the penetrability of doggy doors have not been social problems that anyone has marched on Capitol Hill about, but somehow these issues have gained more priority in the minds of a segment of the population than some very real threats to societal order and civility and to fair and due process.

The Jodi Arias murder trial is very significant, but not for the development or improvement of the criminal justice system. Nothing in the criminal justice system has been restored or edified. This trial has been significant only for its embodiment and encapsulation of a sick form of brainwashing and media-requisitioning, for its sucking of thousands of duped television and social media followers into a vortex of excessive and misdirected sympathy and emotion, and for its creativity in distorting and making up stories that evolve into unsubstantiated urban legends gracing every checkout magazine rack. Yes, this trial has been a landmark - in perpetuating the ongoing contamination and insidious destruction of the American criminal justice system. Mary-Lou and her friends have made their small but important contribution to this endeavour.

Perhaps this inane and dangerous syndrome can be succinctly summed up in a Twitter reply I received, just after the verdict, to a tweet I had posted a month before. I had responded to someone who was dismissing the effects of the tabloid media, and the person bided their time till they could throw a triumphant retort in my “face”:

Pitchforks (April 9^th): “That type of nonjournalism DOES matter in that taints future jury pools & incites general Pitchfork mentality against due process”

Reply (May 8^th): “ha...guess it won't matter now for that murdering nutbag Jodi Arias...hahahaha”   

So while Lou Ann and her internet trial-sisters hug and shed tears of joy, clutching their battered and dog-eared “Justice for Travis” posters, their rights and freedoms are trickling quietly down the drain, and maybe their young adult son has been stopped by the police while driving to get a pizza and is now sitting in a windowless room being yelled at by a police officer while another one tells him calmly they have a lot of evidence against him…. He is coming close to signing a false confession, just so he can get out of there and get an aspirin for his thundering headache. He doesn’t know that he could have left hours ago, he doesn’t know that innocent people need to do that thing that Nancy Grace condemns as suspicious - “lawyer up”……… he doesn’t know what his rights are, but he just needs to get out of there and home to mom, so at this point………..

But wait, we can’t go home yet – Jane Velez-Mitchell is coming our way, microphone thrusting, and she wants to know how we feel about the verdict! The answer is obvious, we have been well trained:

Justice has unfolded! Justice for Travis!!!

Pitchforks can be found at babelbooth.com, followed on Twitter @PitchforksPosts and on Blog Talk Radio at Routing Out, and be sure to like the facebook page. 

What will be the verdict in the Jodi Arias trial? This is what I told ABC 15 ("Jodi Arias trial: How will it finally end?"): 

“If she walks, I would not be the least bit surprised,” said criminal defense attorney Vladimir Gagic.

Gagic told ABC15 that although the possibility exists for Arias to be found not guilty on all counts, he predicts the jury will find her guilty of manslaughter, and the defendant will be sentenced to more than 20 years in prison.

“I think the prosecutor did a terrible job,” he said. “They never had premeditation in the bag.”

Also see "Will Jodi Arias Go Free?" in the Daily Beast and Newsweek from writer Christine Pelesik: 

There’s also a slim possibility that the jury will accept Arias’s claims of abuse and find her guilty of manslaughter, Arizona defense attorney Vladimir Gagic says. “I think there is quite a bit of evidence that Travis was not a saint and he had bad tendencies,” Gagic says. “He wasn’t all that was cracked up to be, and she had some reason to be fearful.”

But if she’s acquitted, he says, “she will be the most hated person in the world until George Zimmerman goes on trial.”

For more information, you can follow me on twitter @vlga, like my page on facebook, and sign up for updates.

In the five year old murder trial of Steven DeMocker, accused of killing his wife Carol Kennedy, the trial judge refused to dismiss the case where defense attorneys alleged prosecutorial misconduct. The defense alleged the prosecution, the Yavapai County Attorneys' Office, obtained confidential defense documents (see "Judge denies motion to dismiss 5-year-old Prescott murder case" by Dennis Wagner): 

A judge in the marathon murder trial of Prescott financier Steven DeMocker denied a defense motion to dismiss the case, concluding that Yavapai County investigators did not engage in prosecutorial misconduct when they obtained confidential defense documents.

In a 57-page ruling issued Thursday, Judge Gary Donahoe said privileged records divulging DeMocker’s defense strategy were unsealed due to a series of mistakes, and the revelations did not benefit prosecutors.

So what exactly is prosecutorial misconduct? It is a term that comes up quite a bit in criminal trial, both on TV and in real life, Jodi Arias for example. All I can tell you for my own experience is the same exact thing as the Supreme Court definition of pornography: I know it when I see it. In a recent case, the US Supreme Court refused to take on the issue of prosecutorial misconduct and the "Hyde Amendment":

A jury acquitted Shaygan and a Miami federal judge later awarded the doctor $602,000 under a federal law called the Hyde Amendment, which allows judges to sanction prosecutors for taking positions that are "vexatious, frivolous or in bad faith."

The judge found that prosecutors acted in bad faith by pursuing new charges and secretly recording Shaygan's defense team. The steps were taken in retribution after Shaygan's attorney tried to keep statements the doctor made to investigators out of evidence, the judge found.

The judge called the prosecution's tactics "profoundly disturbing," adding that they raised "troubling issues about the integrity of those who wield enormous power over the people they prosecute."But the 11th U.S. Circuit Court of Appeals in Atlanta overturned the award, ruling that prosecutors have broad discretion under the doctrines of sovereign immunity and separation of powers.

("Supreme Court rejects appeal of prosecutorial misconduct case")

Has the government, the allegedly democratic government of the state of Arizona, been acting with good faith in its prosecution of Jodi Arias for first degree murder? Or has it been acting like a rogue despotic authoritarian government? Has the Mesa Police department acted like they are representatives of the people, or more like the KGB? Before you answer these questions, read the following article ("Jodi Arias prosecutor's conduct questioned" by Michael Kiefer) and listen to my podcats with King Jordan above.

Prosecutor Juan Martinez dances on the edge of outrage in the courtroom, and his TV following loves it. But on Thursday it came back to haunt him when defense attorneys for accused killer Jodi Arias were able to introduce a string of emails -- over his repeated objections -- showing that victim Travis Alexander's close friends had tried to warn Arias that Alexander was an abusive womanizer.

See my interview with Adam Slinger of ABC 15. This is what I said:

He helps in the sense that he provides an explanation to her testimony,” said Vladimir Gagic, a criminal defense attorney. “Whether or not it's credible or believable, I can't say, only the jury can say.

P.S. in a case eerily similar to this one, see Arizona v. MAYRA ISABEL BARRAZA from 2005: 

Mayra Isabel Barraza (“Barraza”) appeals from the trial court’s imposition of a twenty-two year aggravated sentence for her conviction of second degree murder....

While at Espinoza’s house, Barraza stabbed Espinoza sixty times with a knife. Espinoza, who was five feet, two inches in height and weighed 139 pounds, bled to death in “a matter of minutes.” The wounds covered Espinoza’s chest, back, and neck, in addition to defensive wounds on the hands and forearms...

Barraza denied ever having been at Espinoza’s house and claimed that she was with friends on May 4, 2001. The police attempted to verify her story, but it proved to be false. During a third interview with police, [she told them] Espinoza, who was naked, then came at her, pushed her on the bed, and sexually assaulted her. She attempted to fight him off and was able to reach her purse, which held a knife that she carried for protection. She claimed that she did not know how many times she stabbed him.

In this case, as with Ms. Arias, the police charged Ms. Barraza with first degree murder and sought the death penalty. They did not charge her with felony murder.

The government has charged Jodi Arias with two separate counts for first degree murder. The first count is premeditated intent to kill murder. I have already discussed this charge at length (see "Jodi Arias: Has the Government proven Murder One?"). Also, I have discussed Ms. Arias' self-defense claim and the prosecution burden to disprove self defense by beyond a reasonable doubt (see "Jodi Arias claims self defense, or is it Burning Bed?").

That, for the moment, leaves the felony murder charge, which is count two in the indictment. At common law, felony murder meant that someone could be charged for murder even if they never intended to kill a person, so long as the a death was the foreseeable result while the defendant was committing a dangerous felony. The classic example of a felony murder is when a kidnap victim dies from a heart attack while stuffed in the trunk of a kidnapper's car. Thus, even though the kidnapper never intended to kill his victim, he is still guilty of felony murder because the death of his victim was a foreseeable consequence of the underlying predicate felony, kidnapping.

Another example is when during a bank robbery the police shoot and kill a bank robber's accomplice. Even though the bank robbers certainly never intended the police to kill one of them, that result was foreseeable, and thus felony murder. Other common law predicate felonies included rape and burglary. Assault is not a predicate felony in Arizona for the felony murder rule.

The important point with the felony murder rule is that the predicate felony is different from intent to murder, depraved indifference murder, manslaughter, or any other homicide charge because the goal of the felony murder rule is to deter the predicate felony itself, while non-felony murder homicide and murder laws deal with homicide charges directly.

As most of you are aware, the government has charged Ms. Arias with felony murder, with the predicate felony being burglary. The important point here is that while even though common law burglary required breaking and entering with the intent to commit a theft therein, in Arizona, which follows the model penal code, defines burglary more broadly as (see "Arizona Revised Statute ARS 13-1506 and 13-1507):

Entering or remaining unlawfully in or on a nonresidential structure or in a fenced commercial or residential yard with the intent to commit any theft or any felony therein; and A person commits burglary in the second degree by entering or remaining unlawfully in or on a residential structure with the intent to commit any theft or any felony therein.

The prosecutor does not allege Ms. Arias entered into Travis Alexander's home with the intent to kill him or commit any felony, for that matter, at the moment of entry. How could he when all the evidence shows Mr. Alexander invited Ms. Arias into his house? The evidence is clear she spent at least 8 hours in his house, and during that time together they had sex multiple times.

Instead, the prosecutor's argument is that felony murder applies because at some point Mr. Alexander revoked permission from Ms. Arias to be in his house, and at that point, she was "remaining unlawfully in... a residential structure". This is where things get quite silly for the government's felony murder allegation: if in fact at some point Jodi Arias was still in Mr. Alexander's house without his permission (we can call that point T1), what felony was Ms. Arias' intending to commit at T1? If she was intending to kill him at T1, then that would be the exact same thing as count one, murder in the first degree intent to kill, premeditated murder.

The defense filed a motion to dismiss the felony murder charge, stating quite correctly the allegation makes no sense. In response, Judge Stephens ruled Ms. Arias' intent at T1 could have been assault, not intent to kill Mr. Alexander. I believe that ruling is in error because of something called the merger rule. To count any death that occurred during the course of an assault as felony murder would obliterate the distinction between assault and murder. And even more importantly, there would be no distinction between second degree depraved indifference murder and first degree intent to kill murder.

If I shoot my gun at a crowd without intending to kill anyone, but someone dies anyway, I am guilty of second degree depraved heart murder. If I shoot my gun at a crowd with the intent of killing someone, anyone I am guilty of first degree intent to kill, premeditated murder. That has been English common law since the time of the Magna Carta.

Under the government's felony murder allegation, both set of circumstances would result in the exact same conviction, and in the process it would overturn almost a thousand years of Anglo-American law. The facts in this case, while interesting, are not unsual. I have no doubt thousands of similar cases have occurred since the inception of the felony murder rule centuries ago. If, in fact, fact Ms. Arias' conduct fits within its application, why then has the prosecution been forced to stretch the felony murder rule to such seemingly metaphysical extremes?

The prosecution is getting very clever in this case, and that concerns me. It is not the role of prosecutors to be clever or experiment. It is the role of prosecutors to present the evidence plainly within the clear meaning of the law. If there is a problem with the felony murder rule, or any other law for that matter, which makes the law too lenient, then it is up to the legislature to rewrite the law and fix it. Our separation of powers is clear that legislatures write laws and prosecutors apply it squarely.

The most basic element of due process is we do not have ex post facto, or retroactive, laws, which are expressly forbidden by the United States Constitution in Article 1, Section 9, Clause 3. What the government is trying to do with its felony murder allegation against Ms. Arias is say committing second degree murder in the home of a victim is really first degree murder. That may in fact be a good law, but if so, it is up to legislature to make it explicit. It is not for prosecutors to make new law on their own when it suits them.

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One of the foundational myths of our nation is that criminal defendants enjoy something called the “presumption of innocence” and that for the government to convict someone of a crime, they must prove guilt “beyond a reasonable doubt”.

Are either of these propositions, however, actually true? As the Jodi Arias trial convincingly demonstrates, no they are not.

For example, I have heard quite a few commentators make the point that Jodi Arias’ testimony regarding Travis Alexander’s behavior is uncorroborated. In other words, we do not have any proof of what Ms. Arias is claiming to be true other than her testimony. Why doesn’t she have any proof? The simple answer is that it is next to impossible, maybe even impossible, for Ms. Arias, or any defendant for that matter, to prove what she is claiming. It is not impossible for her to prove it because it isn’t in fact the case but because of the nature of presenting evidence makes it so.

Quite a few commentators have made the point that Mr. Alexander’s ex-girlfriend, Lisa Andrews Diadoni, didn’t corroborate Ms. Arias’ claims about Mr. Alexander. Assume for the moment that everything that Ms. Arias said about Mr. Alexander is true, and that Ms. Diadoni knows it is true. Would she still admit it to the world? That is, would any women in her right mind admit to the world that the man she dated and wanted to marry was a weirdo, possibly a pedophile?

Of course not, which leads to the ultimate point: while the defense technically has the power to force witnesses to testify by way of the subpoena power, that is nothing compared to the state’s power to assemble witnesses and evidence. The state cannot only force witnesses to testify, it can persuade, some say compel, witnesses to testify in particular manner. They can do this because most state witnesses are government employees and obviously, police officers are likely to testify how the prosecutor wishes. Even civilian witnesses could be persuaded to testify in the prosecution’s favor because those witnesses are “going to bat for the good guys”, getting the benefit of a favorable plea bargain, or avoiding the threat of prosecution altogether. The defense has none of these incentives to encourage favorable witness testimony. If anything, unlike testifying on behalf of the prosecution, testimony for the defense will be seen by the majority of the public as advancing an evil agenda.

And this does not even begin to mention the state’s overwhelming advantage in resources, namely the dozens of police officers, technicians, experts, and investigative reports at hand as soon as a case begins. The prosecution cherry picks the evidence, charges, and when and how a prosecution begins. It then has the overwhelming “moral” power of persuasion. How can any person, innocent or guilty, compete with that?

Last week, a local Phoenix attorney, Mark Hummels, was shot and killed by disgruntled litigant Arthur Douglas Harmon after leaving a mediation. Just two days ago, a prosecutor in Texas, Mark Hasse, was killed leaving court. While most lawyers have no problem laughing at the profession, even repeating lawyer jokes, the idea that any targeting any profession for the simple fact of what they happen to do for a living is vile. See the story I did with Adam Longo of CBS 5 "Lawyers often targets of threats and violence": 

As an outspoken advocate of gun control, Phoenix attorney Vladimir Gagic knows that plenty of people will not agree with his positions. He was not, however, expecting vulgar email threats after sharing his views on a local television station several months ago. One man wrote to Gagic:

(expletive deleted) YOU you piece of (expletive deleted) "Vladimir" - you are a dumb (expletive deleted) ... I can't believe you spout such (expletive deleted) in AZ...It must suck to have to look over your shoulder every day."

Gagic says he and his fellow colleagues in the legal profession deal with threats routinely. "It's very common. It is extremely common," said Gagic

...

"It's a sad commentary in our country for professionals who wear suits and ties and carry a briefcase. That's our weapon. Now, we might have to carry a Sig Sauer or a Glock in the other hand," said Gagic.

Jodi Arias is on trial for alleging murdering Travis Alexander (see “Jodi Arias: Who Is the Admitted Arizona Killer?”).

Jodi Arias is a woman that many can't keep their eyes off of--a soft-spoken, small-framed 32-year-old who last year won a jailhouse Christmas caroling contest. But she is also an admitted killer who is now on trial in Arizona for the 2008 murder of her ex-boyfriend Travis Alexander.

So what? Why has that simple statement generated so much attention around the world? An ex-girlfriend murdering her ex-boyfriend, while not as common as the other way around, happens every single day multiple times around the world.  What is so special about this case then?

The obvious answer is that while the procedural facts of the case are not that unusual, there has been quite a lot of attention focused lately on female killers. Everyone is well aware of the danger that single men armed with dangerous weapons pose, so when the killer is a young, attractive women, just like Casey Anthony, that fact in itself is unusual and interesting, at least from the media’s perspective.

So does she have a defense to the charge? Of course she does.  For example, despite Nancy Grace’s typically silly opinion that this couldn’t be self defense because the crime scene was so bloody (see “Jodi Arias' Self Defense Claim Is 'Really Disturbing' Says Nancy Grace”).

These crime scene photos make me nauseous, and I have seen all sorts of crime in my time. They are some of the worst I have ever seen, and I can see from the photos that this was not self defense. This murder cannot be justified as self defense.

At the risk of stating the obvious, every single crime scene where a knife and gun were used will be sickening, whether or not it was justifiable or a crime. That is just the nature of violent deaths, and Nancy Grace’s amateurish opinion is nothing more than someone saying “I think she guilty because I don’t like her”.

And that is my biggest concern with this trial. The prosecutor’s in the Casey Anthony case seemed to believe that Casey Anthony was guilty of murdering her daughter because she was a party girl with unusual habits. With that in mind, I hope that as this trial unfolds, the prosecution will have more than just Jodi Arias was a party girl too.

There are a number of theories about why Adam Lanza killed 20 young children and 6 adults in Newtown, Connecticut ("As nation mourns, investigators try to figure out what led to tragedy in Newtown, Conn"): 

Federal investigators planned to visit dozens of shooting ranges and gun stores across Connecticut Sunday, attempting to figure out what led smart but painfully awkward 20-year-old Adam Lanza to murder 26 children and adults at Sandy Hook Elementary School in Newtown... 

Some people say lax gun laws are to blame; former Gov. Mike Huckabee said it was because we took God out of our public schools, while some others blame the lack of mental health treatment, and a "gun culture" promoted by violent movies, TV, and video games.  

My own feeling is that at least to some degree, many of the reasons listed above are to blame. As I wrote before in "The NRA gave him the gun and Hollywood gave him the reason: James Holmes and the Aurora Theater Shooting": 

Considering the destructive and dysfunctional message Hollywood pimps for a cheap buck, maybe it's time Congress imposed a sin tax on Hollywood movies to make up for the cost to the rest of society. There is no reason a sin tax should just apply to gambling, alcohol, and tobacco when Hollywood trash is just as dangerous.

As far as "God" not being in public schools, that answer is downright silly. The better answer is that the modern neoliberal state has destroyed any sense of community, which organized religion used to represent, and in its place, we are now only a collection of individuals. As Margaret Thatcher wrote, "there is no society anymore, only individuals". 

Mr. Neil Clark best made this point with his recent article "Get used to Cumbria-style killings in neoliberal UK: The egotistic culture of free market capitalism is to blame":

By encouraging us to be selfish and ultra-competitive, neo-liberalism destroys social cohesion. Other people are seen as threats and rivals, and not as potential comrades. In a neoliberal society it's much harder to make deep and lasting friendships and for families to stay together. Trust - that most essential element for building meaningful relationships - is eroded.

One of the odder things I have noticed is the convergence of Hollywood post-apocalyptic movies and Evangelical Armageddon theology. Two antagonistic groups, Evangelical Christians and Hollywood, have found common ground and are indulging in End of the World fantasy. And as a result, there are many Americans, Christians and non-believers alike, who are building an arsenal, not for basic self-defense, but for the End of the World. To them, there should be no limits whatsoever to the Second Amendment, not because they want to stop a burglar or mugger, but because they are waiting to fight the Antichrist or the next Civil War. 

Interestingly enough, the great conservative icon Ronald Reagan, supported gun control ("Ronald Reagan supported gun control, therefore your argument is INVALID")

As governor of California, Ronald Reagan signed the Mulford Act, which prohibited the carrying of firearms on your person, in your vehicle, and in any public place or on the street, and he also signed off on a 15-day waiting period for firearm purchases. After leaving the presidency, he supported the passage of the Brady bill...

His own words:

With the right to bear arms comes a great responsibility to use caution and common sense on handgun purchases. And it's just plain common sense that there be a waiting period to allow local law-enforcement officials to conduct background checks on those who wish to purchase handguns."

Also, see "Gun Control, Or Reloading Morality?" by Gareth Price: 

Reagan and Thatcher's neoliberal ideology inevitably entails the inculcation of a widespread amorality and misanthropy among the population. With Friday's events -- and the other half-a-dozen similar incidents this year alone -- it should be no surprise (though no less of a tragedy) when psychopathy comes home to roost.

You can listen to my podcast I did on this topic here "Newtown School Shooting: What can be done?". One point that I make in my radio show is that I think the modern decline of monogamy, and rise of both polygamy and serial monogamy, combined with easy access to weapons, is the single biggest cause, or proximate cause, of recent gun rampages (see "monogamy reduces crime"). 

Manuel Osorio-Arellanes plead guilty to first degree murder charges in killing US Border Patrol Agent Brian Terry. As the Associated Press reports (see "Brian Terry death: Mexican man Manuel Osorio-Arellanes pleads guilty in killing of US agent"): 

A Mexican man pleaded guilty Tuesday in the killing of a U.S. Border Patrol agent during a 2010 firefight near the Arizona-Mexico border. The first-degree murder plea on Tuesday by Manuel Osorio-Arellanes, of El Fuerte in the Mexican state of Sinaloa, marks the first conviction in the December 2010 death of Agent Brian Terry. Osorio-Arellanes faces up to life in prison.

Mr. Osorio-Arellanes killed Agent Terry with a weapon from the botched "Fast and Furious" escapade that landed US Attorney for Arizona Dennis Burke, Attorney General Eric Holder, and ATF acting director Kenneth Melson in hot water. 

The putative plan of "Fast and Furious" was to sell guns and rifles to straw buyers, who would then sell the weapons to Mexican gangs and drug dealers. The theory was to trace the sales to the drug cartels themselves. It seems, however, the actual details of the plan were carelessly thought out, if at all.

The open question is thus if "Fast and Furious" had never been attempted, or at least been carried out with a bit more consideration, would Agent Terry still be alive? If so, what should be done about it? Should government officials or agencies be sued? Or even more dramatically, should government officials, if culpable, be prosecuted? 

The important point here is not that prosecutions, if appropriate, will bring Agent Terry back to life. But it could be just the "ounce of prevention" necessary to make sure something like this disaster does not happen again. 

It was one of the most famous murder cases in American history, and most people remember it better by the title of the book and TV movie than the name of the defendant: Fatal Vision. I remember watching the TV miniseries, starring Gary Cole and Karl Malden, in the 1980s. I remember the sense of grief the family went through and the seeming injustice of when police first accused Jeffrey McDonald of the murder. And I also remember the moment of realization, like the opening scene of 2001: A Space Odyssey when Wagner's Thus Spoke Zarathustra starts and the apes move ever slowly upwards the evolutionary tree, that maybe in fact Mr. McDonald was guilty. 

But could it be the case that in fact Mr. McDonald is not guilty and was unjustly convicted? First, the prosecutor who prosecuted the case, Jim Blackburn, has been disbarred for stealing client money, forgery, and lying to clients (see the disbarment order). Part of the defense strategy for Mr. McDonald's new hearing is the allegation that Mr. Blackburn suborned perjury by forcing a witness to lie about what she saw. 

MacDonald's lawyer said that Britt heard prosecutor Jim Blackburn threaten Helena Stoeckley, a troubled local woman whom MacDonald had identified as one of the attackers.

A previous MacDonald attorney has said Stoeckley was prepared to testify she was in the MacDonald home the night of the murders until Blackburn threatened to charge her with the slayings. She later testified she couldn't remember where she was that night.

Second, the defense lawyers also say there is forensic evidence, pieces of hair, that don't match Mr. McDonald and point to another attacker. The interesting thing about this case is that even though Mr. McDonald has been eligible to seek parole, he has refused to do so because he is not willing to admit to the parole board that he committed these murders. 

For more information on this case, see Jeffrey MacDonald, Green Beret Convicted Of Murdering Family, Gets New Trial In Light Of DNA Evidence by MARTHA WAGGONER. 

Jared Loughner plead guilty yesterday to murder for the Tucson shootings that killed federal judge John Roll, severely and permanently injured Gabriel Giffords, and killed three other people, including a young child (see "Jared Lee Loughner Pleads Guilty To Arizona Shooting" by Elliot Spagat and Bob Christie). 

Jared Lee Loughner agreed Tuesday to spend the rest of his life in prison, accepting that he went on a deadly shooting rampage at an Arizona political gathering and avoiding the prospect of a trial that might have brought him the death penalty.

From what I understand of the story, it seems that Mr. Loughner was the textbook example of a person who would not have committed this crime if either he had received mental health treatment or if he had not been able to have guns and ammunition. If either of those conditions had not been true, 5 more people would still be alive, Mrs. Giffords would still be in Congress, and Mr. Loughner would be living his life away in anonymity and out of custody. Instead, now, many lives have been needlessly wasted, including Mr. Loughner's. 

Now, sadly, we can add Mr. Loughner's name to the following list: James Holmes, Mark David Chapman, John Hinkley, Lee Harvey Oswald, Wade Michael Page, Nidal Hasan, Seung-Hui Cho, George Sodini, Eric Harris, Dylan Klebold, John Allen Muhammad, Lee Boyd Malvo, Sirhan Sirhan, James Earl Ray, Arthur Bremer, etc...

What is the common link of all these names? They all bought the guns and ammunition they used to kill law abiding Americans legally, and they were all law abiding right up until the point they killed their very first victim. 

Gun violence in the United States has made us seem, to the rest of the world, as backwards and primitive. While that may not matter to some Americans, and in fact, some may actually take pride in that point, it should matter. Everyday, 8 children die by gun violence in the United States. Every year, approximately 12,000 Americans are murdered by guns. That means every year, four times the total number of Americans KIA from the entire Iraq war are murdered by guns.

In Japan, a nation of 130 million, in 2008 fewer Japanese (total of 11) were murdered by guns that entire year than the 12 Americans who died in Aurora, Colorado last Friday morning watching the latest Batman movie (see "Aurora Theater Shooting" by Allison Sherry and Sarah Simmons of The Denver Post). 

And while some people self-righteously claim this is not the time to "politicize" the Aurora theater shootings, if gun advocates are sincere in their belief that more guns will save lives, then this is exactly the time to make that point. If gun advocates really believe that an armed citizen could have stopped James Holmes, then why wouldn't they make that point right now of all times? My suspicion is the reason they are not, and instead are relying on indignation, is that they don't even believe their own "more guns makes us safer" nonsense. When, in the entire history of the United States, has an armed citizen stopped a gun massacre? As far as I know, the next time it happens it will be the first time. 

The reason, I believe, not one gun rampage has ever been stopped by a armed citizen is because even if a member of the public was armed, his natural instinct would be to run away and not confront an aggressive, determined shooter, particularly one like Holmes in protective body armor. Plenty of gun owners think they are Audie Murphy when they are the range shooting at paper targets or in the field shooting at unarmed moose, but in the moment of battle, I doubt very many, if any, would react quite like they think they would. It takes more than a gun to make one a hero. It takes months of training every single day to have the necessary skill, and even more importantly, the discipline to do the job. That is why so much of military training is devoted to esprit de corp, drill, and seemingly unnecessary, but absolutely vital, ceremony and ritual. 

One other point I would like to make though is not about guns, but about Hollywood. From the news reports I have seen it seems Holmes was fascinated by Batman, and in particular, the villains. It is time, not only to ban private ownership of guns, just like Japan, but to examine the trash culture Hollywood pushes. It's time we examined Hollywood's money making machine glorification of anti-social, alpha male characters (I call it "alpha male-itis") like the Joker and Tony Montana.  The NRA may have provided Holmes the means, but Hollywood provided the motivation. 

There is a strong culture of aggression developing in America today which is pretty psychotic. You can see it when you accidentally bump into a stranger on the street, you can see it on the highway when someone explodes in road rage, you can see it in a bar when knife-fights break out over the smallest things, you can see it on the Internet when people start attacking each other in profanity-ridden tirades, you can see it on television shows that glorify mobsters and biker gangs, you can certainly see it in our political landscape, and you can even see it in 8-year-olds who exhibit large amounts of "attitude." Something is very wrong here.

("Why Gun Control Is Patriotic" by Sanjay Sanghoee). 

Considering the destructive and dysfunctional message Hollywood pimps for a cheap buck, maybe it's time Congress imposed a sin tax on Hollywood movies to make up for the cost to the rest of society. There is no reason a sin tax should just apply to gambling, alcohol, and tobacco when Hollywood trash is just as dangerous. 

America is a nation under the burden of prisons. Far too many Americans, who ought not be in custody, are wasting their lives away in prison. We have the highest incarceration rate in the world, by far. The United States has 5% of the world's population, but 25% of the world's prison population. In other words, one in twenty people on Earth is an American, while 1 out of every 4 prisoners on Earth is an American. 

A recent article in The Economist magazine makes the point clearly with regard to Louisiana, or as they call it, “Louisiana Incarcerated” ("Louisiana’s prisons: Sheriffs’ delight, While local officials cash in, convicts lose out"): 

EVEN in a country with the world’s highest incarceration rate, Louisiana is extreme. The state imprisons 26% more people, on a per-capita basis, than the next-strictest state, Mississippi. Louisiana’s incarceration rate is almost six times Maine’s and seven times China’s.

How sad that a nation that calls itself "the land of the free" puts so many of its own citizens in prison and jail. We go around the world forcing "democracy" down the barrel of a smart bomb, but we do this to our own people? Why? The George Zimmerman vs. Trayvon Martin case is a perfect example of why, because it shows in crystal clear terms that social justice is incompatible with identity politics (see "Dharun Ravi Convicted of Cyber Hazing Tyler Clementi: A Masquerade of Justice"). 

I understand that many African Americans and others are concerned that George Zimmerman got away with murder, but in the putative quest for justice, ie, Rev. Sharpton and others, many, self-servingly at that, are doing far more harm than good.

The idea that Zimmerman is a racist murderer escaping justice will only push the public to support stricter and harsher laws and sentences. That, it turn, will put even more Americans in prison who ought not be there. And no single group bears that burden more than African American males. For all those who say they are concerned about racism, I wish they would step back and see the forest and not just the tree that is Zimmerman vs. Trayvon Martin.  

A Florida judge has revoked the release of George Zimmerman, the man Florida prosecutors have accused of murdering Trayvon Martin. The reason the judge revoked Mr. Zimmerman's release is because ("Zimmerman back in jail, attorney seeks new hearing" by Jennifer Kay): 

Prosecutors said last week that Zimmerman and his wife told the judge at a bond hearing in April that they had limited money, even though he had raised about $135,000 through a website set up for his legal defense. They suggested more has been collected since and deposited in a bank account. Defense attorneys say the matter is a misunderstanding.

According to news reports, the judge, Circuit Court Judge Kenneth Lester, revoked Mr. Zimmerman's release because he lied at his release hearing and did not inform the court about the website that he and his wife were running to raise money for Mr. Zimmerman's defense. That putative omission was very significant in the eyes of the court and prosecutors because it led the court to believe that the original bond amount was sufficient to hold Mr. Zimmerman to his promise to appear.

In other words, the issue the court had with Mr. Zimmerman is not just that he failed to tell the court about his website, a mere white lie, but he misled the court about his financial resources. A man who has plenty of money easily raised is more a flight risk than a man who puts his life savings on the line. While I do not think Mr. Zimmerman should be facing prosecution at all, I do believe the judge made the right decision in revoking Mr. Zimmerman's release (see "Free George Zimmerman: Prosecutors Angela Corey and Bernardo de la Rionda Step into Disgrace").

A jury may very well find Mr. Zimmerman not guilty, which is exactly what I hope will happen. Having said that though, until that happens, Judge Lester must enforce the rules of the court impartially. I know some people think that Mr. Zimmerman is under no circumstances a flight risk and that revocation of his release is excessive. To that point I will say that even if Mr. Zimmerman is not a flight risk, the public must know that if you lie to a judge, or at least don't tell him everything he should know, you will not get away with it. That means the next person who walks into a Florida court can't think to himself "Mr. Zimmerman didn't tell the judge about his website and was still released, so maybe I won't tell my judge about my secret bank account either..." 

The police reports in the case are available here at Zimmerman/Trayvon Martin police reports. A review from the police reports reveal the following information: 

1) When police officers played the 911 calls to Mr. Martin's dad, Mr. Martin's dad said the calls for help were not from his son. 

2) Mr. Zimmerman, as can be heard on the 911 calls, yelled for help 14 times in 38 seconds. 

3) According to police reports, several witnesses corroborated Mr. Zimmerman's statements with written and recorded statements to police.

4) On one 911 call Mr. Zimmerman is "frantacally calling for help" at exactly 19:16, while the gunshot was at 19:17.

5) One witnesses claims he saw Mr. Martin "mounted" on top of Mr. Zimmerman and hitting him with "MMA style" punches. 

6) Mr. Zimmerman's nose was broken, face swollen, scalp wounded, while Mr. Martin did not have any injuries other than the gun shot. 

7) Mr. Zimmerman's back was wet, which indicates he was on his back because the grass field they were found on was wet. 

It seems the government's reason for prosecuting Mr. Zimmerman is that they claim Mr. Zimmerman should never have gotten out of the car or he could have avoided the confrontation:

The encounter between George Zimmerman and Trayvon Martin was ultimately avoidable by Zimmerman. If Zimmerman had remained in his vehicle and awaited the arrival of law enforcement, or conversely if he had identified himself to Martin as a concerned citizen and initialed dialog in an effort to dispel each party's concern.

I find that claim puzzling as not a single witness says he or she saw or heard what happened before the actual physical confrontation, and if this is the prosecutor's rational, it is nothing more than speculation and guesswork. 

How can prosecutors prove Mr. Zimmerman could have avoided the confrontation? How can they prove when or why he out the car or that he should not have? And even if they can prove those things, how that does add up to second degree murder? 

It doesn't. As I have written before, Mr. Zimmerman is not necessarily a good or smart man, but there is absolutely no proof whatsoever that he is guilty of murder. 

If you have an opinion on this case, then leave a comment here or call in Thursday June 14 at 12:30 PM Arizona time. See the following link for details "George Zimmerman vs. Trayvon Martin: Racism or justified?"

To listen to part one, see the audio player below. 

Something still stinks in Scottsdale. But now it is now the stench of death and corruption faintly perfumed over by Scottsdale Police media apologists. In the never ending media rush to defend Scottsdale Police department's unlawful killing of Sgt. Prostrollo, the media conglomerate of Arizona Republic and KPNX has proclaimed yet another defense of Scottsdale Police. First there was Ofelia Madrid's abysmal "reporting", then there were tedious and worthless commentaries by EJ Montini and Laurie Roberts. Now there is the story above by Chris Hrapsky.

Mr. Hrapsky never asked Sgt. Mark Clark why did Scottsdale Police issue a press release that claimed it was too windy to use a taser or pepper spray when not a single officer on the scene said that was the case. Mr. Hrapsky, if you read this post, then I suggest you reread the police reports. Not one officer claimed it was too windy for non-lethal force. Mr. Hrapsky never asked why did Det. Lockerby of Scottsdale Police internal affairs spoon feed the answer "too windy" to the officers the day after the shooting. He never asked why did Scottsdale Police show more concern for their canine than Sgt. Prostrollo. Mr. Hrapsky never bothered to go the national weather service website, which would have taken all of two minutes, to find out the night of the shooting wind was average, and confront Sgt. Clark with that fact.

I am so dissappointed with the KPNX story for the following reason: if local media had been more interested in actual investigation of the Prostrollo shooting, maybe then John Loxas would still be alive. 

Of course, there is also Sgt. Clark's "cookie cutter" defense and his informal, casual, and quarter-hearted condolence to Mr. Prostrollo "we get it".  

Officers are trained to confront the situation that's presented to them. So to say that there is one cookie cutter approach for a specific situation, you can't do that... We understand that Mr. Prostrollo is upset... we get that... 

How on Earth Sgt. Clark is still the public information officer for Scottsale Police is beyond me, but it speaks volumes about the Scottsdale Police administration that he still has that job. If, Sgt. Clark, Scottsdale Police "get it", why did SPD lie about the wind? Why did the Scottsdale Fraternal Order of Police slander Sgt. Prostrollo and humiliate his friends? Why did Scottsdale police show more concern for a dog than Sgt. Prostrollo? 

I can almost imagine the following conversation taking place at Scottsdale Police Headquarters: 

Chief Rodbell: dude, guess what? Rambo's old man is totally bummed, and guess what bro?  

Sgt. Clark: No way, bro, what? 

Rodbell: the old man is suing us for freakin' killing his kid! Totally a bummer cuz our dog almost bit it.

Sgt. Clark: no way!! someone, should like, you know, tell him 'hey dude, chill bro', we like totally 'get it'. Ya know, it was like, totally too windy and gnarly. Ya know, what we do ain't cookie cutter. 

For some background information on this topic, see my posts on Scottsdale Police, Sgt. Jason Prostrollo, and John Loxas. 

UPDATE: For some very good news, the Prostrollo family filed a notice of claim against the City of Scottsdale seeking $5,000,000. You can see the notice here at NOTICE OF CLAIM.pdf The family hired Robbins and Curtain for the lawsuit, which is excellent news as I know that both Mr. Robbins and Mr. Curtain are excellent attorneys. 

While personal injury attorneys get a lot of grief for a variety of reasons, this is a perfect example of an attorney suing in the pursuit of justice. I hope and pray that Mr. Curtain and Mr. Robbins succeed in their pursuit of justice, that the Prostrollo family gets some relief, and the Scottsdale Police Department learns the error of their ways.  Maybe, after all is said and done, Scottsdale police will finally learn they can't kill unarmed civilians and lie their way out of trouble.

Finally, I was reading through the police reports of this case, and I saw Det. Lockerby's report. This is signficant because he was the internal affairs officer in charge of the investigation:

Offender threatened to commit Aggravated Assault with pool cue sticks against listed Scottsdale PoliceOfficers while at 12074 North 135th Place in Scottsdale, Maricopa County, Arizona. Listed Offender was shot and killed by Lt. Ron Bayne #559 while committing the Aggravated Assault.  

So, I ask again, if this is the official Internal Affairs summary of what happened and why Lt. Bayne killed Sgt. Prostrollo, what wind?

Bernardo de la Rionda's Nancy Grace-ish cross examination of George Zimmerman is maybe the most despicable part of this entire tragedy. Yes, even worse the the doctored 911 call because Mr. de la Rionda, like every prosecutor is supposed to be, is supposed to be a "minister of justice" speaking for the The People. 

Zimmerman: I wanted to say I am sorry for the loss of your son. I did not know how old he was. I thought he was a little bit younger than I am. And I did not know if he was armed or not.

After that statement, the prosecutor begins his terrible cross examination with the silly, tedious point about how Mr. Zimmerman didn't make the comment to the judge, but to Trayvon Martin's parents who were sitting in the courtroom. I suppose the prosecutor was trying to make the point Mr. Zimmerman's statement was not sincere but only an act for the media.

Watch the video above and tell me who was acting the for the cameras, Mr. Zimmerman or the seemingly mad, blood-thirsty prosecutor, Bernardo de la Rionda. As a side note, if Mr. Zimmerman was acting, he is the best actor I have ever seen. I seriously doubt he is a emotionless, pathological psychopath as no psychopath would tell police he felt bad for the victim's parents, nor would one say as much in open court against the well-placed advice of his lawyers. 

Prosecutor: Sorry sir, you are not really addressing that to the court. You're doing it here to the victim's family. Is that correct?   

Zimmerman: They are here in the court, yes.

Prosecutor: I understand, but I thought you were going to address Your Honor Judge Lester, but not... that's really addressed to the family and where the media happens to be. Isn't that correct Mr. Zimmerman? 

Zimmerman: No, to the mother and the father. 

Then the prosecutor accuses Mr. Zimmerman of having only apologized at the bail hearing- implied in the prosecutor's accusation is that he only did it now to get out jail- but not the police at the scene. 

Prosecutor: Tell me after you committed this crime, you spoke to the police and did you make that statement to the police sir? You never stated that?

Zimmerman: I don't remember what I said, but I believe I did. 

After that exchange, there is a tedious line of cross examination regarding when and to whom Mr. Zimmerman made that statement. Needless to say, Mr. Zimmerman does not remember the specific details, but I don't think anyone doubts he made a statement along to the lines of "I felt sorry for the family" to the police, and he hoped the police would tell the family of his sorrow.

Then Bernardo de la Rionda really steps in it and makes his biggest mistake. It's sad that a prosecutor forgets that the victim's bill of rights forbids criminal defendants from contacting the family of victims, and even if it did not, Mr. Zimmerman's lawyers would have told him to keep his mouth shut.  

Prosecutor: Why did you wait so long [the 54 days from the day of the shooting until his testimony] to tell Mr. Martin and the victim's mother, the father and mother, why did you wait so long, to tell them?

Zimmerman: I was told not to communicate with them.

It is without a doubt a horrible tragedy that a 17 year old boy is dead, and that his family has to grieve his loss. The only thing worse than that sad fact is that the media crucified an innocent man, George Zimmerman, to sell more papers, that a NBC producer doctored the 911 call to make it seem Mr. Zimmerman was a racist, that glory seeking prosecutors like Bernardo de la Rionda are embarrassing themselves and the American legal system to gain fame, and that putative community activists like Al Sharpton are mocking the entire notion of social justice and civic responsible. As bad as all that is, I can only hope that is the extent of it, and that latent anti-Semitism played no part in the rush to convict Mr. Zimmerman. 

My point is not that Mr. Zimmerman is a good person, just that there is absolutely no evidence whatsoever he is guilty of second degree murder. He should not be going through this indignity. I hope he is free soon, and when he is free, I hope he sues the state of Florida for malicious prosecution and sues everyone and anyone who falsely accused him for slander, libel, and defamation.

If you would like to share your opinion regarding this case, then call in to my internet radio program this Thursday June 7 at 12:30 Arizona time or you can leave a comment on this post or tweet me @vlga. See this link for more information: "George Zimmerman" Thu, June 7, 2012 12:30PM Call in to speak with the host (718) 305-6376.

Mark O'Mara, Mr. Zimmerman's defense lawyer is on twitter @Markomaralaw. I sent him a tweet as I am concerned, not as a criminal defense lawyer, but a free, proud, American citizen that Florida prosecutors are persecuting, that's right persecuting, Mr. Zimmerman because of the contrived, vile media campaign against him. I am worried that his client will plead guilty to a lessor charge to avoid facing trial on the second degree murder charge.  

It may be the right thing to do legally, but if so, that is a very sad commentary on our democracy, legal system, and the Bill of Rights, allegedly the finest in the world. If you agree, tweet him your own message or retweet mine: 

.@Markomaralaw Plz don't plead guilty just to avoid trial. This case is bigger than just Zimmerman/Martin. It is about our democracy.

Also see the video below of Harvard Law Professor Alan Dershowitz as he accuses Angela Corey of unethically overcharging Mr. Zimmerman. 

I just received the internal affairs file from Scottsdale Police for former officer Chong Kim. See "Scottsdale pays woman $315K in police strip-search incident": 

Scottsdale has agreed to pay a woman $315,000 as compensation for being wrongfully strip-searched last year inside her apartment by a city police officer who subsequently resigned.

Officer Chong Kim resigned in June 2008 after he was questioned about the incident by police internal-affairs investigators...

According to internal police documents, Kim admitted that he improperly searched the 19-year-old woman after she called police to her apartment for help.

The internal affairs file of the investigation is available here chong kim internal affairs 002.pdf. There are a couple of interesting points with regard to this investigation.

First, the supervising Scottsdale Police internal affairs officer who investigated Ofc. Chong Kim is none other than the same officer who shot and killed Sgt. Jason Prostrollo, Lt. Ron Bayne. Of course, Scottsdale Police internal affairs "investigated" Lt. Bayne after he killed Sgt. Prostrollo. In other words, in Scottsdale the police literally police the police. That this is an incestuous conflict of interest is obvious. What real incentive does Scottsdale PD internal affairs have to properly investigate officer misconduct when they know the officer they are investigating may very well one day be doing the very same to them?

Second, a former Scottsdale Police officer told me that during this same internal affairs investigation that not only did Officer Chong Kim admit to the allegations contained in the civil complaint against him, but he also admitted to have sex with an underage female.

During the IA investigation, Ofc. Kim not only admitted to having acted in the same manner in some 15-20 incidents; but, also admitted to having sex with an underage female. The legal and moral obligation of the IA detectives was to stop the interview and to turn the investigation over to the sex crime unit detectives (as anything that is revealed to IA cannot be used to charge the officer criminally in a court of law).

There is no mention, however, of that putative admission in the internal affairs file. Did he actually confess to felony sexual misconduct and Scottsdale PD is covering it up? I asked Scottsdale Police that question on twitter:

@scottsdalepd was a sex crimes detective brought in for Ofc Kim's internal affairs interview? If not why not.

.@ScottsdalePD Did Ofc Chong Kim admit to child molestation during an internal affairs interrogation?

I have not received any response back to either of these two tweets. If you are concerned about the incestuous nature of Scottsdale police internal affairs or the possibility they are covering up officer crimes, tweet them and ask them the same questions I did. 

According to news reports, Scottsdale PD turned over the Ofc. Kim investigation to the FBI. However, I did not find anything online that Ofc. Kim was ever prosecuted in state or federal court. And even if Scottsdale PD did turn over the putative criminal investigation over to the FBI, that does not excuse, if true, Scottsdale PD from learning everything they needed to from Ofc. Kim before ended the interrogation. Did he confess or was he about to, but Scottsdale PD cut him off to protect both him and themselves? If this interrogation was recorded, which it should have been, then I think it's time Scottsdale PD released it. 

I believe the former Scottsdale Officer is credible as he told me personally about Officer James Peters penchant for slamming on his brakes while a prisoner is in the backseat so the prisoner will hit the cage divider. He told me this a couple of weeks before Scottsdale PD released Officer Peters' internal affairs file and the media reported the same incident ("Personnel files released of officer involved in 6 deadly shootings".  

His superiors said in August of that year, he and a trainee were transporting a handcuffed prisoner in the backseat of a patrol car. While on the freeway, the suspension letter said his trainee sped on the freeway, braking several times and causing the prisoner to strike the cage divider in the car. The report called it an excessive use of force, saying that he did not do anything to stop the trainee.

Another day, another Marine killed by police. First, Tucson SWAT killed Jose Guerena (please read the excellent story called "Jose Guerena Killed: Arizona Cops Shoot Former Marine In Botched Pot Raid" by Radley Balko): 

One of those homes belonged to 26-year-old Jose Guerena and his wife, Vanessa Guerena. The couple's 4-year-old son was also in the house at the time...

As the SWAT team forced its way into his home, Guerena, a former Marine who served two tours of duty in Iraq, armed himself with his AR-15 rifle and told his wife and son to hide in a closet. As the officers entered, Guerena confronted them from the far end of a long, dark hallway. The police opened fire, releasing more than 70 rounds in about 7 seconds, at least 60 of which struck Guerena.

Note that Mr. Guerena was completely innocent of any criminal activity and did not fire his weapon: 

The Pima County Sheriff's Department initially claimed Guerena fired his weapon at the SWAT team. They now acknowledge that not only did he not fire, the safety on his gun was still activated when he was killed. Guerena had no prior criminal record, and the police found nothing illegal in his home.

Then Scottsdale PD killed Sgt. Jason Prostrollo, lied about why had to kill him, and if that was not enough, tarnished his honor after the fact and belittled friends who cared about him. 

Now, it has happened yet again; police have shot and killed yet another unarmed Marine. This time an Orange County Deputy shot and killed Sgt. Manuel Loggins ("RIP Sgt. Manuel Loggins Jr. of the Marines. Killed by the police, unarmed and in front of his children"): 

A veteran Orange County sheriff’s deputy (claims/lied that) he feared for the safety of two young girls sitting in a parked car when he shot and killed a Marine sergeant in a dark parking lot near San Clemente High School, authorities said Friday.

Sgt. Manuel Loggins Jr. was shot early Tuesday as he started to get into the SUV where his two daughters -- 9 and 14 -- were sitting, authorities said. Jim Amormino, a spokesman for the department, said the deputy was fearful that Loggins -- who he said (supposedly) appeared to be acting irrationally -- was about to drive off with the girls.

The Tenth Generation Patriot hit the nail on the head: 

The cop, who was "doing paperwork", was probably really sleeping on the job. He woke up at the sound of an accident at his "safe hide", and sleepy and confused, shot this Marine. His confusion still apparent, he made up a story about "feeling Threatened". Later, when told his story wouldn't wash, he made up a new one, when someone told him, "For Christs sake, his kids were in the back seat!"

Police officers are acting like a badge is a license to kill. But the law for police officers is exactly the same as any other person: you can only shoot to kill to protect yourself or others from an imminent physical threat. Period.

A friend of mine who used to be a federal agent in Southern California told me that police departments in California are much better at weeding out trigger happy police officers than Arizona police departments. Let's hope that's true, and let's hope the Orange County Sheriff's Department provides a model to local law enforcement, i.e. Scottsdale PD, of what a true and complete investigation is all about. 

One note of comparison is immediately noteworthy. Southern California media is not terrified of doing its job and is not falling over backwards to congratulate and exonerate the deputy who killed Sgt. Loggins. I hope our local media (for example, E.J. Montini) heeds that lesson as well. 

Something is rotten in Scottsdale. Despite a state law that requires Scottsdale Police to release reports from the Jason Prostrollo shooting, Scottsdale PD refuses to release them: 

Mr. Gagic,

Our intention is to release what we can publicly per ARS 39-121. We are currently reviewing the documents with our detectives and the County Atty's Office to make sure that we are releasing all of the available documents as soon as possible. As soon as they are available we will let you know.

Officer David Pubins Scottsdale Police Department

While it may sound as if Scottsdale Police is merely trying to be responsible, I believe differently: they are stonewalling and circling the wagons; in other words, the thin blue line is forming.

ARS 39-121 does not give Scottsdale Police the option to hold off on releasing the police parts or only parts of it. It must be released to the public. Second, it is very disturbing that Sgt. Mark Clark, the very same Mark Clark who released a press statement that it was "too windy to use taser or pepper spray", has authority in determining the release of the police reports.  That to me is a clear conflict of interest as it would very much be to his benefit to deflect blame.  

The bottom line is I have no faith in Scottsdale Police properly investigating Sgt. Prostrollo's shooting. 

I would like to see the following done: 

1) An outside agency should investigate Scottsdale Police. The best agency for this would be the Arizona Department of Public Safety. I have no doubt they would conduct a full and truthful investigation, and there is a facebook page called "Justice for Jason Prostrollo" dedicated to this point. At the very least, Sgt. Mark Clark should have absolutely no role in determing the when and how of the police report release.

2) A truthful investigation into criminal charges- at least manslaughter- not only against the officer who shot Sgt. Prostrollo, but also obstruction of justice charges against any Scottsdale officer who may participated in concealing evidence regarding the shooting. Also, if it turns out Sgt. Mark Clark should have known better than to issue a false press statement, he should be severely sanctioned as well.

3) I really hope the Prostrollo family sues the city of Scottsdale. This is not just about uncovering the facts regarding the shooting and punishing anyone who may have been responsible, this is about preventing this sort of thing from happening again. This about changing the Scottsdale police culture from "shoot first" and "cover up afterwards". The only way that will happen is by hitting Scottsdale where it hurts: in the pocketbook.

If this case ends without a civil complaint and criminal charges only (any criminal charges is big assumption in any event), that will not motivate the Scottsdale administration to weed out trigger-happy cowboys. Without a civil complaint, Scottsdale will only say this shooting was sui generis and all the bad apples have been caught and punished.  But if the Scottsdale budget takes a hit, that will motivate them to make sure this never happens again. 

Below is the contact information for the Scottsdale Police administration. Ask them why are they refusing to release Sgt. Prostrollo's police reports? 

Sergeant Mark Clark

Public Information Supervisor

480-312-1910

Email: pio@scottsdaleaz.gov

Officer Dave Pubins

Public Information Officer

480-312-1911

Email: pio@scottsdaleaz.gov

You can also contact these assistant chiefs and demand answers.

John Cocca, Assistant Chief, Uniformed Services Bureau

Phone: (480) 312-1904

Email: jcocca@scottsdaleaz.gov

Sean Duggan, Assistant Chief, Personnel Development/

Investigative Services Bureau

Phone: (480) 312-1906

Email: sduggan@scottsdaleaz.gov

UPDATE: 

Two days ago (Feb 14, 2012), I emailed Scottsdale Police asking for a status of the reports. They have not bothered emailing me back. I guess they have been very busy lately, see "John Loxas Murdered by Scottsdale Police, From 'Protect and Serve' to 'Get Some'"

Tyson Langley, the 15 year old accused smoke shop murderer, entered his plea at his arraignment today. See my interview with Kimberly Chang of ABC 15 in the video above and read the story "Accused smoke shop shooter to enter plea in court, lawyer discusses case": 

Vladimir Gagic, a criminal defense attorney who is not involved in the case, says Langley will face charges as an adult but not the death penalty because he is underage.

Langley is held on $2 million bond. Gagic said he wouldn't be surprised if Langley spent life in prison.

See my interview with Tim Vetscher of ABC 15 regarding Jhessye Shockley, mother of Jerice Hunter, was released from custody. The police released the search warrant they used to search her home. What did they expect to find? 

It may be nothing more than an urban legend, but I have heard many people claim that someone is much more likely to be harmed by a family member than a stranger, and that a child is much more likely to be harmed by one his parents than a stranger.

Whether or not that is true in general, according to Glendale police activity, it appears to be true in at least one particular case ("Glendale missing girl: Mother arrested, according to family" by John Genovese and Lisa Halverstadt): 

Jerice Hunter, the mother of a missing Glendale girl has been arrested, according to her mother Shirley Johnson. Police told Johnson they have not found the missing girl, Jhessye Shockley, and they had not given her a reason for Hunter's arrest. "I have no answers right now," Johnson said.

There is no indication whether the arrest was because Glendale police Ms. Hunter was responsible for harming or even killing Jhessye Shockley, or if they arrested her for another reason such as hindering prosecution (see ARS 13-2510). Certainly, having watched Ms. Hunter bizarre interviews with local media over the past few weeks, she did not seem coherent or sympathetic.  

One of the important points of this case is that I think the public tends to believe only men harm their children physically, and that mothers usually only harm their children emotionally. For more information on this point, see "Perpetrators of Child Abuse & Neglect" by the US Department of Health and Human Services Administration for Children and Families. 

Think Mark Goudeau was guilty of all the shootings in the Baseline Shooting cases? Then why, at least according Mr. Goudeau's defense attorney was ( see "Goudeau defense: Evidence lacking in 'Baseline Killer' case" by Michael Kiefer) there: 

- No evidence that he owned a gun or ammunition. No gun was even found. 

- No evidence that his car was seen in front of a victim's house before her death. 

- No footprints, no fingerprints, no body hairs.

 Further: 

He [the defense attorney] challenged the in-court identifications of Goudeau by victims and witnesses. He reminded the jury that the victims had given widely varied descriptions of their attacker, sizing him at 5 feet 4 inches to 6 feet 4 inches and everything in between.

The police claim they found evidence from the some of the victims at Mr. Goudeau's home, but that was only found after the third search of the house. The first two came up empty. I hope this is not a case where Mr. Goudeau was convicted simply because he has a violent criminal history, because of media coverage, and because of the fact many different allegations and events- in other words, boot strapping- were tried together. 

One of the interesting things about child pornography charges is the assumption that only men do it. In other words, many people think that only men engage in child molestation and that women would never, for whatever reasons, have child pornography in their possession.  Well, it seems that assumption is not particularly well-founded: 

A Swedish court on Tuesday convicted 23 women and one man of child pornography offenses in what investigators called a unique case because of the number of female perpetrators...

The court said the women received scores of sexually explicit video clips and photographs of children from the man and discussed them online with him. Some said they liked the images or shared sexual fantasies about the children, and one woman sent pornographic images of children to the man, the court said.

The material showed girls and boys of various ages, from toddlers to teenagers.

(From "Sweden: 23 women convicted of child pornography")

As odd as the female involvement in this case sounds, there are two important side notes to the story. First, while the possession of pornographic images was extensive, there was no allegation or evidence that any child was actually touched. In the broader context, and as I have written before "Should Mere Possession of Child Pornography Mean Decades in Prison?", we should rethink the idea that if someone posses child pornography that automatically means they will molest children given an opportunity. That reasoning, of course, is part of the reason behind the extremely stern prison sentences for possession of child pornography in Arizona. 

That leads me to the fact the sentences in this Sweden were remarkably light in comparison to Arizona: 

The Falu District Court gave the women, aged between 38 and 70, conditional sentences and fines ranging from 2,500 to 18,000 Swedish kronor ($380 to $2,700). It also sentenced a 43-year-old man to one year in prison for aggravated child pornography.

In contrast, in Arizona every count of sexual exploitation of a minor is presumptive 10 years in prison. That is why some defendants in Arizona get decades in prison for similar conduct to this story (see "Robert Thomas Flibotte Gets 90 years in Prison for Possessing Child Porn").

So who has it right, Europe or the US? While I certainly believe incarceration rates in the United States, and in Arizona in particular, are far too high, I also think Western Europe is too soft on crime. The European justice system is too soft because it is too individualistic. It determines punishment based exclusively on the effect on the individual and not society on the whole. In other words, Europe focuses exclusively on incapacitation, reform, and deterrence of a particular defendant, but ignores general deterrence in entirety. 

For example, Norway might sentence mass murderer Anders Breivik to only 21 years in prison (Norway shootings: Anders Breivik cannot get more than 21 years- Despite his mass killing spree, the maximum sentence Anders Breivik could be handed by a court is just 21 years.) The thinking in Europe is that 21 years is enough time to reform and deter Mr. Breivik from committing crime again. But what Europe does not realize is the message it sends to the public at large: while 21 years in custody may stop Anders Breivik from committing more crime, it is no where near enough punishment to deter future Anders Breiviks from thinking "I kill 90 children, spend 21 years in prison, and then come out as a celebrity? Sounds like a good deal to me." 

Amanda Knox is free. How ironic that the "corrupt" Italian criminal justice system gets it right, while too many Americans languish in prison.  

"It's going to come down to what the doctors say, so if there's no real evidence that he's competent to stand trial, it's kind of out of the prosecution's hand," Phoenix Attorney Vladimir Gagic said. Too read the rest of the story see "Will Tucson shooting suspect Jared Loughner be ready for trial?" by Steve Kuzj Phoenix station ABC 15 KNXV. 

I know this point is getting old and tedious, but that very fact in itself means there is a serious problem: why do civil servants, and police officers in particular, get away with behavior that would land average, everyday Americans in prison for decades?  

This time I am referring to a very disturbing story in the Arizona Republic by JJ Hensley: "Peoria man sues Sheriff's Office, cites abuse by deputies". During a recent NASCAR event in Phoenix, Michael T. Wyman, saw his friend, Ernie Griego, and gave him a bear hug. Apparently, in the eyes of Maricopa County Sheriff's deputies providing security at the event, that was enough to attack Mr. Wyman, arrest him, and then charge him with multiple felonies.  According to Mr. Wyman, Deputy Preston Boyer even came up behind him and started to choke him, and another deputy tasered him in the back, and his son as well. 

Fortunately for Mr. Wyman, the Maricopa County Attorneys' Office, responsible for prosecuting this case, dismissed all the charges against Mr. Wyman. Now Mr. Wyman is suing Sheriff Joe Arpaio and the Maricopa County Sheriff's Office.

Michael T. Wyman, 50, maintains in his lawsuit that he greeted an old friend with a bear hug near the track's Speed Cantina during a NASCAR race last November when, without warning, a deputy put him in a choke hold. The deputy threw him to the ground, Wyman alleges, and another deputy began shooting Wyman in the leg with a stun gun.

Wyman was charged with resisting arrest, aggravated assault and disorderly conduct for his role in the Nov. 13 incident, but a judge dismissed the charges in March at the request of prosecutors.

The important point about this case is that all the available evidence indicates the deputies overreacted, and then, to protect themselves from sanction, blamed everything on Mr. Wyman, even though he did absolutely nothing wrong. According to the story, "a handful of witnesses acquainted with Wyman, including a firefighter and a 911 operator, could verify Wyman's claims."

According to Mr. Wyman's attorney, Daniel Treon:

Wyman continues to experience nerve damage from the stun-gun shock and has undergone surgeries, including a skin graft, to repair damage from the weapon and broken bones from a deputy stomping on Wyman's foot...

The injuries appear to be so bad that Mr. Wyman cannot go back to work at his job with Ricochet Excavating. 

If it is true that the deputies overreacted, I don't understand why the worst thing that will happen to the deputies is that the department and Sheriff Arpaio get sued. It does not even seem like they will lose their job. But imagine if these were not law enforcement but regular citizens who overreacted at a bar fight. Wouldn't they be facing jail time for aggravated assault with a deadly weapon and charges for false reporting? Why should deputies get off easy just because they wear a badge? 

Even as bad as the injuries Mr. Wyman suffered seem to be, by far the worst part of this story is the fact it seems the deputies were perfectly willing to use their authority not only to cover up their wrong doing, but were even willing to charge an innocent man with multiple felonies.  

I wish the next time the media does a story in which they think an guilty person is acquitted, for example Casey Anthony, they would also do a story in which an completely innocent man is wrongly accused. Imagine if in this case there were no civilian witnesses to corroborate Mr. Wyman? He would now be facing decades in prison for simply being the victim of police brutality.

My own experience with Maricopa County Sheriff deputies, usually at the Maricopa County Superior Court, is that while plenty of them are polite, plenty of them are cowboys as well, for example Deputy Adam Stoddard. And my experience with the always courteous and professional Pima County Sheriff deputies puts Sheriff Joe's gang to shame. 

In a surprising development, the jury in the Michael Jaskcht Carefree motorcycle case was deadlocked on all the felony counts against Mr. Jasckcht, and the judge declared a mistrial.  I just looked at the Maricopa County Superior Court website, and the counts included multiple allegations of manslaughter, endangerment, and aggravated assault.  

The manslaughter counts apply to the motorcycle riders who will killed, the aggravated assault counts to the motorcycle riders who were injured, and the endangerment counts apply to the motorcycle riders who were not hurt, but were in "firing line" could very well have been hurt. 

Clyde Nachand, 67; Stephen Punch, 52; and Daniel Butler, 35, died at the scene. Dayle Veronica Downs-Totonchi, 47, died a day later.

When I was a public defender in Pima County, I defended and tried a case almost exactly like this one.  And that is why I am surprised that the Maricopa County Attorney did not charge Mr. Jaskcht for driving under the influence of an illegal drug or metabolite.   If Mr. Jasckcht's license was not suspended or he had no previous DUIs, then there would be no basis for charging him with a felony or aggravated DUI, but even for a misdemeanor DUI conviction a defendant can get up to 6 months in custody.  

The main point of a DUI illegal drug charge is that unlike alcohol, to be convicted of the DUI drug charge, a driver must only have the illegal drug in his system and it does not matter if the illegal drug or metabolite actually affected his ability to drive.  That is, even an inactive metabolite of an illegal drug- such as carboxy THC, which can stay in a person's system 30 days after smoking marijuana- is enough for an illegal drug DUI.

According to news stories, Mr. Jaskcht passed all field sobriety tests and the only reason the police found out about the alleged illegal drug use is because he volunteered for it.  Police routinely ask drivers for chemical tests- usually urine- in fatality cases even if they have no reason to suspect drugs or alcohol, and the driver has the absolute right to refuse such requests. It may be the case, because the DUI most likely would have been a misdemeanor, that it was handling in Maricopa County Justice Court or Carefree City Court separately from the felony counts. 

When Mr. Jaskcht's testified, he claimed that he was not taking drugs illegally and the positive test results were from a diet drug.  He also said the reason he crashed into the motorcycle drivers were because his brakes failed. "I'd say it [the truck] was fine throughout the morning, then gradually it just pulled to the left," he said. "I was in shock, I was numb [after the accident]".  He also said the brakes failed even though he checked him.

My belief is that the jury did not convict Mr. Jaskcht because there were no signs or symptoms of impairment. Thus, even if a driver has an illegal drug metabolite in your system and he is guilty of a illegal drug DUI, if the driver is not impaired then he cannot be guilty of manslaughter, endangerment, or manslaughter.  

In the parlance of legal procedure, the defense did something very smart: they presented their own alternative version of events, supported by their own evidence. That evidence was Mr. Jaskcht's testimony. Under our law, the defense is not obligated to produce any evidence or offer an alternative explanation of events, and is free simply to rebut the prosecution case.  But while the defense does not have to produce evidence or an alternative explanation, when it does so, it gains a powerful advantage.  That is because while the prosecution must prove its case beyond a reasonable doubt, if the defense evidence is sufficient for the defense's alternative explanation to be "reasonable", that means reasonable doubt and not guilty.  That point is spelled out clearly in standard criminal jury instructions, the famous Arizona Portillo instruction on reasonable doubt.  

That means if the jury believes the defense evidence and explanation is reasonable- not even likely, probable, etc..- just reasonable, that means not guilty.  Here it seems the 9 out of the 12 jurors believed Mr. Jakscht's testimony was reasonable.   

Because the jury deadlocked on all the counts, Mr. Jakscht is now legal purgatory, and the county has the right to retry him on all the counts.  Double jeopardy does not apply to jury deadlocks and mistrials. My experience has also been that the conviction rate is much, much higher on retrials than original trials because if Mr. Jakscht, for example, were to testify in a second case, the prosecution could use his testimony from the first case to challenge him. 

If Maricopa County decides to re-prosecute Mr. Jakscht, they will 60 days from the end of the the last trial do so.  One thing the prosecution may need to do is work very hard during jury selection to make sure none of the potential jurors are biased against motorcycle riding victims. I don't know how careful the prosecution was in the first trial making sure none of the jurors disliked motorcycle riders (see "Should Arizonans Hate Motorcycles and Motorcycle Riders?").  I can't help but think that if this case was a car accident instead of a motorcycle accident, the result may have been different. Certainly, as someone who rides a motorcycle myself and has represented motorcycle riders in accident injury cases, I am aware that many people- especially insurance companies- consider motorcycle accidents, even when the motorcycle rider is not at all at fault, the "cost of doing business" and that motorcycle riders have essentially assumed the risk of getting hurt. 

I wrote before that I don't believe juries make mistakes.  Juries are very good, much better than judges, at figuring out what happened in a particular case.  In the vernacular of the judicial system, I would say juries are very good "triers of fact." American law is based on English common law, which has for hundreds of years divided the "trier of law" and the "trier of facts."  Judges figure out the law, while the jury figures out the facts. I think that distinction is a very good one, and most of the sentiment for eliminating jury trials is nothing more than anti-democratic elitism. 

Having said that though, the guilty verdict in the James Arthur Ray trial bothers me. Even though I have written quite a bit about the double standard of our legal system- what I call Prison Democracy- it seems that the exact reverse happened here.  I hope that it is not the case that Mr. Ray was only charged and convicted because he is famous, but with the weak evidence against him, I can't help but think that.  While I don't think famous or established persons should escape due punishment, I also don't think they should suffer from unwarranted accusations either. 

So did the jury make a mistake?  I never read the transcripts of the trial or saw any of it; so without more information I would say no.  But the verdict- criminally negligent homicide- could still be bad as a result of odd or incomplete facts.  The defense attorneys' for Mr. Ray claim that the verdict is a result of prosecutorial misconduct. (Arizona self-help guru deserves new trial in sweat lodge case): 

A self-help guru who was convicted in the deaths of three participants in an Arizona sweat lodge ceremony deserves a new trial...Ray's attorneys went before a Superior Court judge in Yavapai County, Arizona, claiming he should be tried again because of prosecutorial misconduct...[t]he defense claims the prosecution did not disclose evidence on time.

The defense's position since the deaths is that the adults who participated in this event knew full well the consequences and dangers they were facing, and that Mr. Ray never misled them.  In fact, it is in part because of those dangers that they wanted to be part of the sweat lodge.  Thus, this case seems to me the classic example of something that should be handled in our civil personal injury system, and not the criminal system. 

Arizona is going through its own version of the Casey Anthony trial: the disappearance of baby Gabriel.  The major difference with Casey Anthony is that, unlike Ms. Anthony, Ms. Johnson's mental health is at issue. That is because 4 doctors have found Ms. Johnson incompetent to stand trial.  As Laurie Merrill reports in today's Arizona Republic:

A judge who postponed Elizabeth Johnson's competency hearing until Aug. 11 said Tuesday he is concerned that four of five doctors who have examined Baby Gabriel's mother have found her incompetent to stand trial.

This point deserves some clarification.  Competence to stand trial, and Arizona Rule of Criminal Rule 11, which governs the determination, have nothing to do the so-called insanity defense or diminished capacity. While there may be a connection between a defendant's mental state at the time of offense and competence to stand trial, just because someone is found incompetent does not mean he was insane or planning to use the insanity defense.  And just because someone may be found competent does not mean he was not insane at the time of the offense. 

One particular point worth emphasizing is that Arizona does not have a verdict for "innocent by reason of mental disease or defect", words that I have heard repeated on Law and Order dozens of times.  Instead, Arizona has "guilty except insane".  That statute is ARS 13-502 and reads in part: 

A person may be found guilty except insane if at the time of the commission of the criminal act the person was afflicted with a mental disease or defect of such severity that the person did not know the criminal act was wrong. A mental disease or defect constituting legal insanity is an affirmative defense.

The history of Arizona's guilty except sane statute can be found in the fascinating and true life novel "Death of a Jewish American Princess" by Shirley Frondorf.  The most interesting person in the book is neither the defendant Steven Steinberg nor the putative Jewish American Princess victim, but the defense attorney Robert Hirsh.  I had the opportunity of working for Mr. Hirsh at the Pima County Public Defender, and I can tell you from personal experience the description of his wit and his caustic and eccentric personality is right on the money.

I mention this book and statute because if it turns out that Ms. Johnson is eventually competent to stand trial, don't be surprised if the defense raises the guilty except insane defense. 

It seems that Arizona politicians can't help but make Arizona look bad, and in the process, expose the little secret fact that if you wealthy and privileged, the law does not come down on you so hard.

As reported by Howard Fischer of the East Valley Tribune, Arizona Republic reporter Richard Ruelas claims Arizona Senator Lori Klein pointed a handgun at him. She denies that it was intentional. 

A first-term state lawmaker denied Monday she deliberately pointed a loaded gun at a newspaper reporter during an interview at the state Senate.

Sen. Lori Klein, R-Anthem, admitted in a statement she took her .380 Ruger out of its carrying case during an interview last month with Arizona Republic reporter Richard Ruelas in the lounge outside the Senate chamber. But Klein, who refused to comment, instead issued a statement saying that was done for the benefit of the photographer who wanted to see the gun and the laser sight -- and that Ruelas sat down in the path of the laser.

Regardless of the fact Mrs. Klein has denied that she deliberately pointed the weapon at Mr. Ruelas, there seems to be enough to start an police investigation into the matter, in particular considering the harm a handgun can cause.  

I know when I was taught basic firearm safety in the Marine Corp, we were told- the first rule of firearm safety- never, ever point a weapon at a person unless they are the enemy in battle.  If you do not follow that basic rule, something like what James King of the Phoenix New Times can happen:

The senator might be interested to know that sometimes guns do things when they're pointed at people -- for example, they can go off. Enter Jordan McGrath, 28, charged with manslaughter after blowing his friend's brains out, apparently accidentally.

As reported in the Arizona Republic, it seems rank has its benefits, and the Arizona Senate will not investigate Mrs. Klein.  "The chairman of the Arizona Senate's ethics committee [Democratic Sen. Steve Gallardo] says he doesn't plan any action regarding a fellow lawmaker who has acknowledged pointing her gun at a newspaper reporter during an interview."  

If police decided to take up the matter, the Maricopa County Attorney could charge her with Aggravated Assault with a Deadly Weapon, and allege the crime as dangerous.  That would mean if convicted, she would be going to the Arizona Department of Corrections even if it is a first offense. 

Interestly, there is now a Facebook page titled "Charge Arizona Senator Lori Klein with Aggravated Assault".  

Neither the media or the population in general have a very fond image of attorneys.  Sure, attorneys who work for the government, like prosecutors and judges, seem to have a decent image, but attorneys who represent consumers- divorce, criminal, personal injury, bankruptcy, and criminal lawyers primarly- have a rating lower than used car salesmen.  Of major professions, only stockbrokers are thought of lower than attorneys.   That is very sad considering the amount of money and school one must invest in becoming a lawyer.  

Of course, a lot of that public derision is well deserved.  Cheesy used car salesman like sales tactics and overly aggressive trial attorneys do damage to the bar's public image, as does the idea of rich, well established deep carpet firms making millions for work that is largely non-productive and of little social value. 

Now it seems lawyers will be thought of even less, for committing simple violent crime.  Daniel Gukeisen, the founder of the Arizona and Nevada bankruptcy "want a fresh start" practice is going to prison for killing a ASU student. According to the Arizona Republic, he received a 5 year prison sentence from Judge Cari Harrison. Gukeisen was found guilty in April for stabbing Arizona State University student Garret Hohn after an argument broke out between the two in front of Gukeisen's Tempe townhouse in September 2009.

Even though the state charged Mr. Gukeisen with manslaughter for killing Mr. Hohn, the state did not allege the crime as "dangerous".   The fact the crime was not technically dangerous meant that he was eligible for probation and is still eligible for 85% time in the Arizona Department of Corrections.  If he had been convicted of a dangerous offense, he would not be eligible for probation and he would have to serve 100% of his sentence. 

While seems some of the derision that lawyers get is undeserved, from what I could tell of the facts of this case, Mr. Gukeisen is lucky to be only going to prison for 5 years.  If the facts were identical with the only difference Mr. Gukeisen was a bar tender or car mechanic instead of a wealthy attorney, I would not have been surprised if he was charged with murder instead of manslaughter and his sentence was over 20 years. 

There is a saying that reality is sometimes stranger than fiction, and in the case of the death of Phoenix Police Sgt. Sean Drenth, that could very well be true.  According to AZ Family Channel 3 reporter Kristine Harrington, there could be a connection between Sgt. Drenth's death and the allegedly false overtime South Mountain Police case.

They're in trouble for allegedly lying about off-duty work they did not perform. The dead officer was under investigation for the same charges and questions about how and why he died have haunted the officers for months. 

While Ms. Harrington does not explicitly address the issue in this article, she hints that Sgt. Drenth might have been murdered for his part in the fraudulent overtime case: 

Drenth was found dead in his uniform, killed with his own shotgun while on-duty. Police and the medical examiner have yet to determine whether his death was a murder or a suicide.

On top of the fact that whoever killed Sgt. Drenth used his shotgun, Sgt. Drenth's GPS tracking device was apparently turned off.  The following is from Christopher's Sign's article from ABC 15. 

The GPS system can show dispatchers the location of each patrol car, but [Phoenix Police Spokesmen] Crump declined to answer questions if the system was used or even working during the search for Drenth.  "I'm not going to talk about the sergeant's GPS and the tracking of that at this point," Crump said during a news conference Tuesday.

One of the things that points to a methodical hit is the fact that the crime scene had very few clues: 

Those close to the investigation say numerous security cameras in the area did not capture the shooting incident and haven't provided many clues in the case. "It's a tough, tough, tough crime scene at this point," Crump said.  Crump told The Associated Press investigators obtained surveillance video of the scene but it has not been useful in explaining what happened.

From what the Phoenix Police Department have released so far to the public, it is far too soon to tell what happened to Sgt. Drenth and if his death is related to police corruption.  Having said that, the fact that the investigation is slow does not necessarily mean it is methodical or will be adequate once finished. Not just because of this case, but because of poor behavior by Phoenix Police Officers in general, it may be time Phoenix considered a civilian police commission to oversee the Phoenix Police Department.  

One thing to know right off the bat is that there is no such thing as a "domestic violence" charge in Arizona.  There is a allegation of domestic violence, but the allegation is different from the charge.  The difference is that you cannot commit the crime of domestic violence, but any other criminal act, usually assault or trespassing or criminal damage, can have the domestic violence allegation added to it.  Without question, even though the domestic violence allegation is not itself a criminal charge, it is serious.

If you are the defendant and you have a close personal relationship with the alleged victim, living in the same home, children together, married or used to be married, etc... and then you committed a crime like assault or damaged their property, the prosecution will add the allegation of domestic violence.  The most important consequence of this allegation is that if you are convicted of a first time offense, even without any criminal history whatsoever and for a first time misdemeanor, the judge must sentence you to anger management classes for anywhere from 26 weeks to a full year once a week, no exception.  For a second time conviction, even for a misdemeanor, the judge must give you supervised probation.  For misdemeanors, supervised probation is almost unheard of and extremely rare.

Another important point to keep in mind is that the victim does not have the option or choice of "pressing charges."  Once the police have written their report and the State of Arizona has decided to prosecute, the discretion to prosecute or not prosecute is strictly limited to the prosecutor's office.  The victim cannot decide, once 911 has been called and the police on their way, to drop the case.  The reasoning behind this is common sense and pragmatism.   The prosecution of a defendant should not be subject to the ups and downs of personal relationships; it should be subject to the will of the democratically elected sovereign.