Archive for the 'Criminal Law' CategoryPage 9 of 69

Why Is It so Hard to Indict Cops?

With so many recent cases of white cop vs. black man, the country has erupted into protests demanding change. The George Zimmerman, Darren Wilson, Tamir Rice, and the Eric Garner case, have thrown the U.S. into a racial tailspin. These cases have all exemplified the complicated process of indicting cops.

why is it so hard to indict cops?Why is it so hard for a grand jury to indict cops? When 90% of cases end in indictment, why do the majority of cop vs. citizen cases end in non-prosecution of the cop?

What Law Does the Grand Jury See?

Indicting a police officer is a far more complicated process than indicting a citizen. The primary reason is that the law is very generous in giving cops the authority to use deadly force.

For example, in the Ferguson case, Missouri law gives officers the right to use deadly force “in effecting an arrest or in preventing an escape from custody” if the officer reasonably believes the deadly force is necessary to “effect the arrest” and also he “reasonably believes that the person to be arrested has committed or attempted to commit a felony…or may otherwise endanger life or inflict serious physical injury unless arrested without delay.”

What Protects Cops from Indictment?

Major criminal cases use police investigators and detectives, which poses an extreme conflict of interest in cop cases. Police officers can also serve as eye witnesses, since they were often the only people there (or the only people who lived to testify about it). This massive conflict of interest can affect a prosecutor’s expectations of the cop’s involvement.

Cops enter into the law enforcement field knowing they need to protect their fellow colleagues at any cost. This is exemplified in the field, as well as the court.

Police also have an extensive amount of specific legal protection. Each state has guidelines for what protects its police, but the laws that allow the use of force are backed by the Supreme Court. Police can use force when resisted against, and will extend their use of force if the criminal does the same.

It’s crucial to remember that police officers must make immediate, instinctive decisions to stay alive. This fact that influence a grand jury’s determination as to whether the officer acted reasonably under the circumstances.

Even in times where racial tension is at a high, the majority of the population favors cops. There is a central knowledge and belief that cops are essential to the safety of our country. Some might say they are a necessary evil. Jurors are often asked to put themselves in the police officer’s shoes in these types of cases, rather than the criminals. This creates an even bigger push to side with the police.

Even when police officers are indicted, reports from Philadelphia and Seattle show that most of these cases become overturned. This is a direct cause of the substantial due process protection for police officers.

The criminal justice system is corrupted with racial discrimination. This has especially been prominent in cases such as Michael Brown and Eric Garner. But, it is key to remember that the criminal justice system is also a complicated one. Only experts can decide if an indictment is necessary. Hopefully, this article has shed some light onto the widespread unknown reasons why indicting a cop is so hard.

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Highway Robbery: How Police Abuse Civil Forfeiture Laws

The news is currently flooded with examples of police abusing their power. Here’s another: civil forfeiture (a.k.a. highway robbery by the police).

civil forfeiture police abuse of powerConsider this example: you’re moving to a new city with your car weighed down with boxes of clothes, books, etc. When a cop pulls you over for speeding, he questions you about all the possessions in your car. He doesn’t believe your story, so he confiscates everything.

This scenario may sound farfetched, but it happens to thousands of Americans every year.

Under the civil forfeiture process, police are allowed to take and keep your property or cash if they believe it’s connected to an illegal activity—even if you aren’t charged with a crime.

Civil forfeiture is most commonly used against motorists, but police have also used it to seize homes. Also known as asset forfeiture, this legal process was prominent during the Prohibition era in order to thwart the activities of bootleggers. It was used by the police in the 1980s in the war on drugs.

After 9/11, the departments of Homeland Security and Justice spent millions to train local and state police to be their eyes and ears on American highways. This meant being more aggressive when looking for suspicious people or drugs.

Unlike criminal procedure, where individuals must be convicted before their property is confiscated, civil forfeiture is a dispute between the police and the seized item in question; your guilt or innocence is irrelevant. To regain your seized property, you must prove that their property was not connected to the alleged illegal activity. Most people do not regain their property because the legal process is long and sometimes far more expensive than the seized items are worth.

The most commonly seized items are cash, vehicles, and personal property. Civil forfeiture cases are lodged against the seized property and not the owner of the property, so the case names seem ridiculous, such as:

  • United States v. Approximately 64,695 Pounds of Shark Fins
  • United States v. One Pearl Necklace
  • State of Texas v. $6,037

So, why is property so easy to seize? Unlike people, property has no legal right and most states do not have a presumption of innocence in property. Most police departments benefit from civil forfeiture because they get to keep the confiscated property that is not returned to the owner. What was once a legal practice meant to stop organized crime is now used to line the pockets of underfunded police departments.

Abuse of civil forfeiture laws has become rampant in recent years. In 2012, the value of seized assets was $4.3 billion compared to 2001’s $407 million.  Most of the money is shared with local police forces, so the incentive to use civil forfeiture is high when cities cut police department budgets. Some police departments have used seized money to purchase sports tickets, home security systems, a $90,000 sports car, and a margarita machine for office parties.

Civil forfeiture, if used properly, can have a positive effect and be a useful tool in the fight against organized crime. But so far it’s become synonymous with police abuse and corruption. When people read an article about civil forfeiture, they encounter stories about the police and federal agencies keeping $2.5 billion in seized property, or innocent people, like the Sourovelis, who have had their home seized without being charged or accused of a crime. By abusing civil forfeiture laws, the police fail to protect and have become twisted Robin Hoods that steal from the innocent and give to themselves.

Bill Cosby in the Court of Public Opinion

Rape and Powerful Men

It’s a familiar story. A young woman moves to Los Angeles in search of an exciting life. She meets a well-known and respected man who offers friendship and mentorship in a big city. This man tells the young woman he is impressed with her work and thinks she has talent. He pays for her room and board while she gets her career off the ground.

bill cosbyA few months later, this man invites the woman to meet him at a restaurant and club he owns. At the club, the man offers her some wine and pills to congratulate her on the hard work she has done. She drinks the glass and passes out. When she wakes up, she’s naked in a hotel bed. The man, her benefactor, is standing nearby with nothing but a bathrobe on. He throws $200 at her and then walks out the door. According to sixteen different women, this man was Billy Cosby over the course of his forty years as a comedian, writer, and actor.

The Court of Public Opinion

Even non-attorneys will sense there is something odd about these allegations. The only lawsuit filed against Bill Cosby alleging sexual assault and/or rape was in 2004 and that case was settled in 2006. The other sixteen women, with claims dating as far back as 1965, haven’t come forward until this year. Indeed, these women haven’t filed any lawsuits and only one woman has filed a police report. Instead, they’ve taken to the Facebook and other social media outlets to persuade the larger public.

I’m not going to discuss whether the allegations are true. The only evidence so far are the womens’ testimony, a few witnesses, and a picture of Cosby in a rather ugly bathrobe. No one should be determining innocence or guilt based on testimony about incidents that took place decades ago.

However, there are reasons why women are often reluctant to bring charges against their rapists. Trials are public affairs and that can’t be changed because the Constitution gives criminal defendants the right to confront their accusers. The most widely used defense in rape cases is consent and defense attorneys will often use a victim’s sexual history as evidence of whether she would have consented to sex with the alleged rapist. Although this type of defense is limited by rape shield laws today, evidence about a woman’s sexual history was fully admissible during most of Cosby’s career and any woman trying to bring a case against Cosby would no doubt have her virtue questioned.

Cosby’s attorneys have already given us a picture of what Cosby’s defense would look like. Cosby’s alleged victims have moved on with their lives despite the encounters with Cosby. One woman is a drug addict with a history of criminal conduct; another is a disbarred lawyer after a dispute about a legal fee. These prior moments of dishonesty undermines the creditability of the accusers. Character attacks will likely be a primary defense if any of these claims go to court and with good reason. If the only evidence is testimony, then the best strategy is to discredit the witness giving the testimony. The public spotlight, especially against a popular man like Cosby, will make a spectacle out of the woman’s sex life.

Settling Rape

Based on all these factors, the best thing these women could probably do is to sue Cosby in civil court and then settle the case before it gets to trial. District attorneys have been reluctant to prosecute Cosby because there isn’t enough evidence to prove that he is guilty beyond a reasonable doubt. Civil law uses a lower standard of evidence, so convincing a civil law judge to keep the case alive will be far easier despite the scarcity of evidence.

Some people might view settlement as a way for Cosby to buy himself out of court. In fact, one victim claims that Cosby gave her $200 after raping her as an unspoken agreement to keep quiet. However, there is a difference between a rapist giving women money to stay silent and a legal settlement. First, the offer will not be a further attack on the woman’s dignity. A rapist giving money to a victim will make the woman feel like a prostitute whose body was only worth $200. Settlements for sexual assault will recognize that the woman was wronged and that she has rights beyond being a piece of meat for the rapist’s pleasure.

Second, the alleged victim would have time and advisors to consider whether a settlement offer is a good one. Settlements, unlike hush money, are not “take it or leave it deals”; the plaintiff can negotiate for a good price or go to trial. The important thing is that the woman will have the ability to control what she wants, rather than what the rapist wants.

Disturbing Implications of No-Knock Raids by Police

The Emergence of No-Knock Raids

The Fourth Amendment was founded on the premise that citizens have an inherent right against unreasonable search and seizures as well as an expectation of privacy. The police are required to obtain a warrant before entering a private home. Additionally, prior to the 1970’s and before the “war on drugs,” they were expected to knock, announce themselves, and wait a reasonable amount of time to give the person a chance to respond.

no-knock raid by policeThe police argued that some situations were dangerous enough to allow no-knock raids. Consequently, in the 1980’s, the federal government began to allow such raids and gave the police unfettered discretion. The police began to abuse the law and it was struck down a couple years later. Since then, the courts have slowly allowed the practice to resume, but have supposedly added extra precautions that the police must follow when conducting a no-knock raid, including:

  • A determination that the situation is too dangerous to knock and announce their presence.
  • The suspect would have more time to dispose of a weapon or evidence of a crime.

However, it is not often that a judge denies a no-knock warrant (only about 3% of the time) and 10% of the time judges will issue a no-knock warrant, even if the police asked for a standard warrant. It is important to note that the police are not always required to obtain a special warrant. If they “reasonably believe” there is justification to enter the home without knocking, they are entitle to do so. Consequently, the line has blurred between a justified and unjustified no-knock raid. As such, many critics believe the practice continues to be abused, and again subject only to subjective police discretion.

How No-Knock Raids Have Changed 4th Amendment Protections

Most states have provisions in their laws allowing a homeowner to kill an intruder if they reasonably believe the intruder intends to inflict serious bodily harm or death upon an occupant of the home. There are currently 26 states that go even further and allow “Stand-Your-Ground” laws, which permits a person to shoot outside the home if they feel threatened. An example that is widely known is the George Zimmerman case.

As controversial as these laws are, when an intruder breaks into a home, dressed in black, holding a weapon and screaming, many people will choose to shoot, with the intent to kill and will not be prosecuted. However, these laws will not protect a person if they mistakenly shoot a police officer who is breaking into a house as part of a SWAT operation, even if the homeowner reasonably believes the police officer is an armed intruder (especially if the homeowner has a record). Recently there have been instances of this scenario in the media, with over 20,000 no-knock raids in America each year. However, the outcome of attempted prosecution has varied, many blaming a bias based on race. Below are two such examples that are ripe with controversy.

Texas Cases with Drastically Different Outcomes

In 2013, in the pre-dawn hours, a SWAT team entered Henry Magee’s home through the door, without announcing their presence. Henry had previous arrests on possession of marijuana, as well as a DUI. It is important to note that the police did discover marijuana plants in the home. Magee shot and killed one of the officers and was charged with capital murder. However, he argued that he believed the intruders were entering his home and, in order to protect his pregnant girlfriend, he was entitled to shoot. Consequently, the charges never made it past a grand jury indictment and were dropped. Magee is Caucasian.

Five months later, Marvin Guy, who is black, also killed an officer in a no-knock raid, in almost the exact same circumstances. Although Guy had been convicted of more serious crimes than Magee (robbery and weapons charges), the police entered Guy’s home through a window and found nothing that suggested a crime had taken place. In fact, an ACLU study found that 36% of raids fail to produce evidence of a crime and, in 2003, 10% of 450 raids were wrong-door raids. This variation in circumstances from Magee seems to suggest that Guy was more justified in the shooting. However, the grand jury chose to indict and he now faces the death penalty.

Many argue that these raids, targeted to those suspected of a crime, actually endangers innocent persons within the home. Additionally, statistics show that there has been significant differences involving people of color.

The Consequences of No-Knock Raids

Unfortunately, there often times are no consequences for the police or the subsequent prosecution. The exclusionary rule is supposed to be designed to prevent police from using evidence that was obtained illegally. However, recently the courts have not applied this rule to evidence obtained in an unjustified no-knock raid, if that evidence could have been obtained with a standard warrant.

However, there are certainly consequences for the subject of a no-knock raid. Civilian deaths greatly outweigh police deaths in no-knock raids and, even if a police officer is killed, the suspect is very likely to face a charge of murder, despite a valid claim of self-defense.

Additionally, if an innocent civilian is killed in the raid, it is rare that the police are charged with murder, or even civilly liable. In 2010, a Detroit SWAT team killed 7 year old Aiyana Stanley-Jones as she was sleeping as the bullet pierced her brain. In another case, police in Georgia, killed a 19-month-year-old when they threw a grenade into his crib. Neither officer was convicted of the deaths, mostly due to the argument that there was insufficient evidence the police knew the children were in this house. Compare this with Guy’s argument that he did not know that the police were the intruders.

Overall, no-knock raids are a concern across party lines, eliciting outrage from conservatives, libertarians and liberals alike. SWAT raids affect people of color at a staggering 71%. However, studies have shown that Caucasians are often involved in crimes that are more serious, such as hostage situations. Inevitably, the debate will continue to dominate the media when considering constitutional rights, racial bias and the abuse of police power.

 

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Florida School Fakes Shooting as a Drill – Why This Is a Terrible Idea

It’s 10 a.m. on a Thursday morning. You’re at work when you suddenly get a text message from your child. Your child’s message is only one line, but it sends a chill down your spine: “I thought he was going to shoot me.”

school shooting drillYou immediately leave your office. You get to the car and race down to the school. You run a couple of red lights along the way. There are dozens of other parents in the parking lot. Police have their weapons drawn. Nobody knows what is going on. Your heart is pounding. Despite police warnings, you go inside the school and find your child hudled in a corner with a few other classmates. As you take your child out of the school, an announcement comes over the school announcement system. The “shooting” was only a drill.

This “active shooter” drill took place at Jewett Middle Academy in Winter Haven, Florida. On November 13, the school principal announced the school was going into lockdown. Police burst into classrooms with guns drawn, including an AR-15 rifle. The weapons were unloaded, but nobody informed the children. Actually, the school principal and the Winter Haven Police Department neglected to inform parents or even teachers. Parents only found out about the drill through an email after the drill was over.

Winter Haven police have attempted to defend their drill. Officers claim their weapons were unloaded and pointed at the ground. The drill was supposed to simulate the surprise that children, teachers, and parents felt had there been a real shooting. However, the Winter Haven police did acknowledge that feedback was mixed and promised that officers would not use weapons in future drills.

In the wake of the Sandy Hook shootings, many states, including Florida, New Jersey, Colorado Tennessee and Missouri have enacted “active shooter drills.” Some of these drills have included volunteers to play hostages and victims. Other drills were more like Winter Haven, where children, parents and teachers were scared senseless. In many drills, an officer acts a gunman and takes “hostages.” Some schools go so far as to use fake blood.

One Terrible Idea

The Winter Haven “drill” is one of the stupidest ideas I’ve ever heard. What if a parent or a teacher heard that there was a shooter and decided that now was the time to use their gun? The hypothetical fire fight that police and school principals were practicing for might become real. Given that many people believe arming teachers is the solution, that’s a very real possibility. The opposite result could also occur. Fire drills have become so common that people often take them for granted. It would be extremely ironic if schools had so many drills that when a real shooter shows up some people might not realize it before the shooter starts killing people.

Winter Haven police claim that they didn’t inform the community about their drill because they wanted to create the surprise that comes from a shooting. We have plenty of fire or earthquake drills and nobody proposes that we should heat or shake buildings to replicate the terror of a fire or earthquake. Indeed, some elderly individuals or young children might have heart conditions that could be triggered if the “drills” go so far as to terrify them.

In California, we conduct earthquake drills because earthquakes are a likely possibility that could occur and we have little in the way of a warning system. In the mid-west, we practice tornado drills because tornados will arise and we can’t stop tornados. We prepare for natural disasters with drills because there’s little else we can do about those disasters.

School shootings are very different. School shootings appear to be becoming more common, but they are far from natural. We cannot do anything to prevent earthquakes, but we can do far more to address school shootings. Arming teachers is a possibility. Treating more mentally ill people is another option. Creating or expanding insurance for depression and mental health is a good alternative. My point is that school shootings don’t have to be common and they don’t have to be unpreventable forces of nature. School shootings are the results of sick individuals in what some call a sick society. It’s a bad idea to equalize human actions with acts of god.

These drills concede that we cannot stop shootings. These drills treat shooters like faceless natural disasters, such as earthquakes, fires, or tornados. The problem is that the shooters are human. Potential shooters can be treated so that they don’t become the unstoppable beasts of destruction that the drills will treat them as. If we mischaracterize the nature of these shootings, we will only bring more harm upon our children.

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