Chicago Cop Sues Shooting Victim

A Chicago officer who shot and killed a 19 year old suspect is suing (via counterclaim) the decedent’s estate for trauma. The officer claims that the suspect assaulted him with a baseball bat during the confrontation. It is claimed by the officer that he suffered deeply from the traumatic experience of having the baseball bat nearly miss his head when swung by the suspect. In fact, the officer alleges that the suspect tried to hit him twice, nearly missing on each occasion.

Although what happened during the confrontation has been subject to different interpretations, one things is clear: the officer used deadly force to stop the suspect. Specifically, the officer shot the suspect four times as he (the suspect) lunged towards the officer with a bat. The officer’s use of deadly force prompted a lawsuit by the victim’s family. On behalf of the suspect (Quintonio Legrier), his family seeks damages for his wrongful death. In response, the officer (who is one of the defendants in the original suit) responded by filing his counterclaim for ten million dollars for emotional distress and intentional infliction of emotional distress.

What Really Happened That Day

It is unclear at this point how the confrontation started and what happened during the interaction. Authorities know for certain that the suspect, Legrier, was the person who made the initial 911 call. It appears he and his father called police seeking some sort of assistance. The victim’s father claims he called 911 because his emotionally challenged son was hitting a door with the bat. Then it appears that the officer arrived to the location and immediately requested that Legrier drop the bat. Subsequently, it is said that the suspect swung the bat a few times in the officer’s direction, but while the two had several feet of distance in between them.

The officer responded by using deadly force because he felt that it was the only way to prevent harm by the suspect. Unfortunately, in the midst of subduing the suspect by shooting, the officer also shot and killed a bystander who was in the area. Supposedly, the officer was unable to see the bystander in the area because he was knocked onto his back, and the suspect blocked his view of other people in the immediate area. According to advice from a Sacramento criminal defense lawyer, an officer may generally use deadly force only where he or she believes it’s necessary to defend himself or others from the immediate use of deadly force by the suspect. The only other time where it may be permissible (depending on state law) is where the officer is attempting to carry out an arrest for a felony involving the use (or the attempt) of serious physical injury and the officer forewarns that he may use deadly force.

Why the Case Has Created Controversy

The thought of a cop suing a dead suspect sounds controversial enough. However, there are other aspects of controversy in this case. First, the family has been criticized for quickly filing a lawsuit after the death occurred. The family’s attorney claims that this was done to ensure that all possible pieces of evidence would get preserved. However, the officer involved, and the law enforcement agency have made statements suggesting that the family is just looking for a quick windfall. The officer’s attorney, Mr. Brodsky, even stated that the family shouldn’t be using the lawsuit as a “lottery ticket.

From the opposite side, the family and its attorney claim that the police department is trying to downplay the shooting and blame the victim for what occurred that day. The family’s legal team is also reaffirming their underlying desire to preserve evidence by showing that it has already received several pieces of evidence as it originally desired.

The police department’s internal affairs department is already investigating the situation. It will be using all the available evidence to try to reconcile the different versions of the story. The other victim’s family is also pursuing its own lawsuit against to recover for the death of the innocent bystander. At this point, the case will continue further and we will provide updates on the situation when possible.

Freddie Gray Case: Prosecutors Asking to Compel Testimony

A Brief Background

If you don’t know about the story, Freddie Gray was 25-year-old, an African-American man who had been fatally harmed while being transported by law enforcement officials in the city of Baltimore, MD. A total of 6 officers were charged for the acts that led to Gray’s death while in their custody.

What Prosecutors Want

Prosecutors with the Baltimore D.A.’s office are taking an unexpected step in asking the court of appeals to compel a law enforcement official to provide testimony in opposition to several fellow officers in the Gray case.

As of today, filings exist that show that the issue of Officer Porter being held as a witness may be revisited by the court. The Baltimore State Attorney’s Office says it truly is appealing Judge Williams’ January 20th oder to block prosecutors from calling officer Porter to act as a witness opposite officers Nero, Miller, and Lt. John Rice.

How the Appeal Affects the Cases

This dispute will most likely push out their respective trial dates, beginning with Nero’s February 22nd case (as currently scheduled), about assault and misconduct in addition to reckless-endangerment.Officer Porter’s case for manslaughter came to an unfavorable end for Gray supporters as the case ended up with a hung jury late last year.

Angelita Williams spoke on behalf of the Maryland Judiciary and stated that no appeal had been filed as of the time of her statement. However, it seems clear that the D.A.’s office will go forward with requesting that Porter be called to testify in the case.

How Shkreli Lost Attorney Client Privilege

If you have been paying attention to the news lately, you know that the young, rich owner of a pharmaceutical company recently when to jail for securities fraud. This man, Martin Shkreli, was often criticized for his elaborate lifestyle which he obtained partly from an astronomical rate hike of a medication needed by cancer and AIDS patients. Shkreli claimed it was just business, but most people considered it outright greed and selfishness. Well, it seems that karma caught up to him. He, and his lawyer, were arrested

What Was the Crime Here?

He, and his lawyer, were arrested for conspiracy and fraud for illegally taking money from Schkreli’s firm, Retrophin Pharmaceuticals. It is alleged that Shkreli needed to make some quick cash to pay back angry hedge fund investors, so he and Greebel (the attorney) came up with a sheisty consulting fee scam designed to juice the company for extra cash.

How Does Attorney-Client Privilege Play In?

This alleged scheme is what leads us to the discussion of the attorney-client privilege in the criminal law context. The company Retrophin cooperated with authorities by turning over docs and waiving its privilege with Greebel. However, in the turn over, there were many docs which concerned communications between Greebel and Shkreli. The company had redacted a lot of information on these docs because Greebel was representing Shkreli (the CEO of Retrophin) as his personal counsel at the time. The company thus believed that those documents were subject to the additional attorney-client privilege between the two parties and that it had no right to disclose them without authorization by the parties.

How the Prosecutors Got the Info

The prosecution urged the court to dissolve the privilege to uncover evidence which would support the alleged wrongdoing by Greebel and Shkreli. In many states, it is possible to overcome the attorney-client privilege by showing that the sought-after information was created to further a criminal scheme.  Apparently, the prosecutors in this case were able to make the required showing and the judge agreed to order the disclosure of the documents.  The uncovering of the information contained therein led to the indictment of the two men, to the joy of many of Shkreli’s critics.

The End Result

While many defendants think that the attorney-client privilege is rock solid, this case shows one of the main exceptions to the rule.  Whenever an attorney and his client discuss something that helps to carry out a crime, the court will not allow you to use the privilege’s protection to prevent being prosecuted. This exception makes sure that the privilege is used fairly and doesn’t promote criminal enterprise. The best advice here is to not abuse legal privileges because it will just hurt you in the end.

Are We Seeing the Death of the Death Penalty?

electric-chairCapital punishment has long been a subject of debate in American society. A total of thirty-four states are still using the death penalty to give the ultimate punishment to their most feared criminals. However, we are seeing a drop in the number of executions performed despite the fact that the majority of citizens support its use. Here, we’ll look at some of the reasons the death penalty seems to be meeting its own death.

Current Statistics Prove the Death Penalty is on the Decline

As we close the end of 2015, only 28 executions have been reported for the entire year across the U.S. We haven’t seen a number this low for decades. Use of capital punishment hit its apex in 1999 when 98 prisoners were executed. Since then we are noticing a steady decline, even in the strictest states. The deadly year of 1999 was followed by another 85 executions in the year 2000. The rate of executions seemed to be declining in the years 2007 and 2008, but it climbed again to 52 in 2009. Since 2009, we have seen a gradual decline to the latest reported number of 28 in 2015.

Uses of Alternative Sentences

One of the main reasons analysts believe that death penalty use is declining is due to the increasing imposition of life in prison terms. Many court systems and prosecuting agencies are turning to life sentences instead of seeking the death penalty. The reasons behind this have social and financial implications, but also reflect society’s increasing awareness that life in prison serves as a perfectly suitable deterrent against future crime. In practical terms, most prisoners on death row wait years and years before they are ever executed. In many cases, what was intended to be a short wait on death row becomes the equivalent of a life sentence anyways.

In reality, sentencing or commuting a death row inmate to life imprisonment ends up being a lot cheaper too. In the large state of California for example, there would be a savings of approximately $2.34 billion if prisoners were given life sentences instead of the death penalty. In its current state, the California death row system costs taxpayers somewhere around $117 million dollars a year. All this money is collected to run a system that is hardly ever used in the state. Only 13 inmates have been executed since 1978. Also, one defense lawyer recently confirmed that the state has not executed a death row inmate since 2006. Yet, nine years later the state is still using taxpayer dollars to fund the death row process.

Cruel and Unusual Punishment

In recent years the death penalty has come under attack when execution process did not go as planned. Just last year (2014) two problematic executions brought the topic into the national headlines. First, Oklahoma used a secret combination of drugs (including a paralyzing agent) to perform an execution on Clayton Lockett. However, prison officials mistakenly injected a series of drugs that caused excruciating pain while they believed the inmate was unconscious. This oversight caused the inmate to convulse in pain for over 40 minutes until he finally died due to cardiac arrest. Oklahoma authorities underwent extreme scrutiny from legal groups and the community for the failure to carry out the process in a humane manner.

The second ineffective execution of 2014 occurred in  Arizona. Joseph Wood received around 15 injections that induced severe breathing problems for approximately 40 minutes before he died. Some sources even reported that it took up to two hours for his death to occur. Here again, the state government was harshly criticized for its inefficient handling of the situation.

These nearly unsuccessful attempts at carrying out capital punishment have created a large amount of backlash from the public. Although most people agree that convicted killers should be punished, most also agree that the ultimate punishment should be carried out in an ethical manner. Part of the problem leading up to these botched attempts arises out the of unavailability of commonly used chemicals for injection. As these types of drugs become increasingly unavailable (from Europe), the states are turning to newer, experimental chemical agents. Since the death penalty is so infrequently used, it is hard for states to determine if these new injections are as effective as believed. The end result is that death row inmates are used as guinea pigs which is not what the legal systems intends.

Many states have simply backed off performing executions to avoid getting into legal turmoil. They are also taking more time to work out a proper administration process to avoid future mishaps.

The Financial Side of Capital Punishment

As discussed above, many states simply do not want to expend funds on capital punishment. It has been estimated that imposing sentences on a non-death penalty case costs the state around $740 million per year while death penalty cases cost an additional $1 million. In a time where most states are still trying to tighten the belt around spending, the death penalty is an undesired expense.

When breaking down the costs to the average taxpayer, the results are astounding. In California, taxpayers can expect to pay $90k more for each execution than they would have to pay for a life prisoner term. This number adds up to a whopping $63 million per year (paid by taxpayers as a whole) for the current number of inmates on death row.

All in all, the state of California spends an unbelievable amount of money just to have a death row system. It has been estimated that in excess of $4 billion has been spent since the late seventies, when capital punishment once again became legal. Considering that only 13 inmates have been executed during that time, you can do the math and see that the cost per inmate undergoing execution was about $300 million. Most taxpayers can’t even fathom how much money this really is. If the problem wasn’t big enough already, it is going to blow up even more when costs rise in upcoming years.

The future for death row is going to be an expensive one. In the near future, costs could go up to over $232 million per year. When you compare this to the amount that would be spent by merely incarcerating inmates ($11.5 million yearly), it is easy to understand why many states are backing away from the death row system.

In Summary

At one point in history, capital execution was a perfectly acceptable punishment for certain heinous crimes. However, in today’s society, the sheer number of inmates sentenced to death row along with growing humanitarian concerns are causing us to rethink capital punishment. As previously stated, polls show that a majority of Americans  still support the death penalty. Yet this support may be more abstract than practical. When it comes to hitting the average citizens’ pocketbooks, most are likely to figure that the costs don’t outweigh any potential benefit. The recent botched execution attempts have also brought the procedures into question. In conclusion, the reason why capital punishment is declining is not attributable to a single factor, but rather to a mixture of financial and social concerns.

How Can One Get Immunity for Testimony?

The idea of immunity for testimony is often used on criminal justice TV shows. Due to this, the average person understands that there are ways to get yourself out of trouble by getting someone else in trouble. Shows like Law & Order often depict this scenario when they are trying to explain a character’s willingness to cooperate with the prosecution, or just to add a little drama to the series.  Yet, obtaining immunity for testimony is a lot more complicated than the shows lead you to believe. There is a whole world of law that applies specifically to immunity. Here, we’ll look at some of the details of this legal phenomena as it applies in California courts.

The Two Types of Immunity In California

California law recognizes two distinct types of immunity: use immunity and transnational immunity. Use immunity is available to help protect the witness from the subsequent use of the given testimony in a criminal prosecution. Law enforcement is also prohibited from using the so called “fruits” of this testimony; in other words any type of information they immediately gain from hearing the testimony. In this sense, use immunity is fairly limited in its application.

The second type of immunity, transactional immunity, is much more broad. This is probably the type of of immunity most lay people believe they will get when they strike a deal with the prosecutors. In essence, it prevents prosecution for any matter that is testified to. It is not merely limited to activities which are related to the topic the witness testifies about. For example, a witness testifying about participating in a gang shooting could also testify to selling large amounts of cocaine and not be subject to prosecution for drug sales.

A seminal case dealing with transactional immunity is People v. Campbell, Crim. No. 11053. Court of Appeals of California, Third Appellate District. November 30, 1982. In this case, the defendant appealed after he was prosecuted for drug crimes because he felt he was covered by transactional immunity. The defendant had previously testified for the D.A. in a felony case and was told he was covered by Penal Code Section 1324. However, after his testimony, the D.A. went forward with charges against him claiming that he was only entitled to “use” immunity. The Court of Appeals reversed the conviction because it held that the defendant’s exercise of his 5th Amendment right against self-incrimination couple with the prosecution’s grant of 1324 immunity constituted transactional immunity.

How Can You Get One or the Other?

Many people reading this will immediately wonder how it is determined which immunity will be used. California law makes this a little easier by imposing transactional immunity under Penal Code 1324 when the case concerns a misdemeanor level crime. Also pursuant to Penal Code 1324, when the case involves a felony crime, the D.A. can choose whether to offer one of the two. Whether the D.A. chooses transactional or use immunity at the felony level probably depends on the unique circumstances of the case and the witness’ own criminal history or propensity for future crimes.

So Transactional Immunity Means I’m Good!

Not necessarily. As previously discussed, transactional immunity is not as constrained as use immunity, but it does have limits as well. When making an offer of transactional immunity, the prosecution is free to offer it as applied to certain crimes while leaving you open to exposure for others. Due to this, a prospective witness needs to clarify what the immunity will cover before agreeing to go through with it. Anything less than blanket immunity could leave a witness open for prosecution in the future.

You can also still be liable for perjury. Therefore, if you get on the stand and make up a story just to get your immunity and to please the D.A., you could be prosecuted later for lying under oath. Transactional immunity won’t extend to crimes that you are currently committing. The policy behind this limitation is that the prosecution made the deal with this defendant under the presumption that the truth will be told. Public policy also  promotes truth and justice in the court system.

One more limitation was fashioned out of the case Zicarelli v. N.J. State Comm’n of Investigation, 406 U.S. 472 (1972). In this case it was determined that any grant of immunity will not be extended to witness’ response which doesn’t address the particular question asked. For example, if you are asked about the robbery offense in the case, you cannot just start talking about how you killed someone last year and expect to be covered by immunity. This limitation prevents witnesses from sneaking crimes into their testimony just to take advantage of the immunity system.

Are There Any Other Requirements for Using Immunity?

Perhaps the most essential qualification for using immunity is that the witness must be testifying about a matter that could be covered by the 5th Amendment. Thus, the witness must be in a situation where he or she is being compelled to testify against their will about a matter that could incriminate them. The witness must also assert his or her 5th Amendment rights before they will become eligible for immunity. As such, the prosecution is totally free to use other evidence related to witness which does not fall under the umbrella concept of “testimony.”

How to Get Started on the Road to Immunity

Whether a witness can proactively seek out immunity depends on the type of case. In misdemeanor cases, it is perfectly acceptable for the witness to make the initial request to the prosecution. Whenever you are in a co-defendant situation, you can request immunity from the court and the court can approve it on its own motion. This procedure is possible under California Penal Code 1100.

In a felony case only the prosecutor can start the immunity process. The court cannot just grant a witness immunity on its own accord. However, the court can accept or reject the D.A.’s request for immunity once it is submitted. It should also be noted that the  D.A. is not required to give anyone immunity.

Summing Up Immunity

Immunity for testimony is a far more complicated subject than can be adequately described in this article. However, the one thing you can take away here is that if you are ever required to testify in a criminal matter, you look into immunity if you have a criminal past. Testifiying without any type of immunity puts you at risk. As a witness, it would help you greatly to get your own attorney to explain these concepts in further detail.

Is ignorance of the law enough?

 

A lot of people don’t commit criminal offenses knowingly. All humans make mistakes, and sometimes those mistakes land us in trouble. Once in a while you might find yourself doing something that you sincerely believe is lawful which in fact sanctioned by the criminal code. In such cases, you might wonder whether your honest mistake is enough to absolve you of criminal wrongdoing. Well, the answer isn’t a simple yes or no. The right answer really depends on the jurisdiction in which you are located and the factual background behind the mistake. The following article will look at some of the theories behind mistake of law and mistake of fact in criminal law.

A Look at Mistake of Fact

A mistake as to a fact which would be necessary to convict one of a crime may “in fact” excuse the conduct. Criminal defendants can use mistake of fact to defend themselves against an accusation when the mistake tends to negate a mental state that is considered a material element of the criminal statute. Generally speaking, mistake of fact doesn’t excuse criminal conduct. Rather it provides a defense which the defendant can use to explain why he undertook a certain action.

However, the notion of mistake of fact as an actual defense is not so clear. As stated above, mistake of fact is merely pointing out that a defendant does not have a mental state which is required by law. In a sense, it suggests that the defendant should never have been charged of the offense because he or she did not meet the requirements to be found guilty of the offense. This is how the mistake of fact defense differs from other classic defenses.

For examples of some well known mistake of fact cases see:

  1. State v Silveira, 198 Conn. 454 (1986)
  2. State v Freeman, 267 N.W.2d 69 (Iowa 1978)
  3. State v Sawyer, 95 Conn. 34 (1920)

The Requirement of Reasonableness

One limitation on mistake of fact is that the defendant’s mistake must have been reasonable. This is an important limiting factor because without it practically every crime could be called into question under the mistake theory. The concept of reasonableness in a defendant’s perception of the events is best understood in a scenario involving rape. It would be easy for a defendant to claim that he did not rape a woman because he made a mistake as to her consent to the sexual encounter. Without the requirement of reasonableness, practically every rape defendant could use mistake to explain his actions. However, with the requirement in place, a defendant has to prove why the circumstances led him to believe consent was given. In a sense, the requirement validates the veracity of the defendant’s purported mental state.

Additional Factors

A different problem plaguing the use of mistake of fact is the articulation of a particular state of mind in criminal law statutes. Many statutes do not specifically state what the mental state is, and this causes great confusion as to whether mistake of fact really applies. Courts are often stuck doing statutory construction to resolve the problems that arise with an unclear mens rea. In many cases, where it is determined that the required mens rea is actually one of general intent, the mistake of fact defense will likely not apply. Also, in the case of a strict liability offense the mistake of fact will not apply because there is no mental state to negate. Yet, where a specific intent can be found, (i.e. in sexual assault where there must be an intent to rape) the defendant may successfully raise the idea of mistake.

What About Mistake of Law?

It has unequivocally been held that mistake of law is never an excuse. This situation differs from that above in that the defendant does have the required mental state but just thinks that his or her conduct is not proscribed. There are some situations however where the government may actually make mistake of law an excuse. The case US v Liparota exemplifies this idea. In this case, the legislature crafted a law that contained a “knowingly” requirement, however it specifically explained that the defendant must know what he or she is violating is against the law. In conclusion, it is still safe to say that mistake of law is not a defense in the majority of jurisdictions.

What Have We Learned Here

Hopefully you were able to grasp the subtle differences between mistake of law and mistake of fact. Knowing how these differ is beneficial to understanding how criminal defense work. Some people are surprised to find out that mistake of fact is allowed while mistake of law isn’t. It certainly seems logical that you shouldn’t be held liable for a crime when you didn’t know you were committing one. It goes to show that the law in the criminal arena is not always as you might think at first glance!