Category Archives: psa

Death by any means

It’s bad enough that the duty of prosecutors to disclose and give to the accused any exculpatory and impeachment evidence is entirely self-regulated. It’s quite another when prosecutors flout that requirement to obtain convictions while hiding behind the quickly falling veil of justice. It’s worse yet when they intentionally hide evidence in a case in which they are seeking to murder the accused.

This may sound familiar to you and that’s because I wrote back in February about Virginia prosecutors and their quest to kill Justin Wolfe. If only this were a follow-up to that post. It is not. This is yet another instance of prosecutorial hide-the-ball in a death penalty case, this time from Colorado in the case of Sir Mario Owens1.

Determined to demonstrate just how far he believed Arapahoe County prosecutors had strayed over the line in the effort to obtain the death penalty against his client, defense attorney Jim Castle resorted to a visual aid. During a hearing late Friday, he presented District Judge Gerald Rafferty with a wheeled cart piled with documents that he said prosecutors were obligated to turn over to the defense before trial but failed to do so — a transgression of due-process rights known as a Brady violation.

“There are so many violations in this case, I can’t cover them all,” Castle said. “How did this happen? This shouldn’t happen. If it’s allowed, we will accept a new low for justice in Colorado.”

I’m not going to go into a long-winded rant about the injustice of this. I’ll just let you see how outrageous it is.

  • [Co-defendant] Robert Ray’s wife, LaToya Sailor, testified that she wasn’t willing to come forward about what she knew until after Owens was arrested because she feared Owens would harm her son. Despite the fact that police documents indicate Sailor was already cooperating with authorities prior to Owens’ arrest, prosecutors made her supposed need to be protected from Owens “an issue in the case” and hammered away at it to the jury.
  • Another document withheld from the defense indicated Sailor, the beneficiary of a car from then-District Attorney Carol Chambers, had initially offered to assist in an accessory case against Ray but didn’t want to tie him directly to the Marshall-Fields shooting. (Ray was sentenced to death for Marshall-Fields’s murder and received a life sentence for Wolfe’s death.)
  • Witness Jamar Johnson was facing two counts of conspiracy to commit murder if he failed to cooperate in the Ray-Owens prosecution, but defense attorneys weren’t made aware of that possible motivation or how it might have shaped his testimony.
  • Greg Strickland, the only witness to identify Owens as the shooter of Marshall-Fields and Wolfe, testified that he’d received no assistance in any of his own cases in return for his testimony. But records indicate he received a plea deal in Adams County in exchange for his cooperation.

Some prosecutors take the position that if they don’t ask or know about information that would tend to prove the accused’s innocence, then they don’t have to abide by the Constitution. DA Carol Chambers apparently subscribed to that school of thought, because this isn’t the first case in which her ethics were called into question.

It is precisely this blood-lust that leads to a convict-at-all-costs attitude. And when the priority is a conviction, it is justice that dies.

Black men are exigent circumstances

Pursuant to the protections of the Fourth Amendment granted to every resident of this country, police cannot enter a residence or a closed bedroom without a warrant. This would violate the Fourth Amendment. There are certain exceptions to that warrant requirement, such as the existence of “exigent circumstances”.

[t]he term, exigent circumstances, does not lend itself to a precise definition but generally refers to those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization.

There are three categories of circumstances that are exigent: those that present a risk of danger to human life; the destruction of evidence; or the flight of a suspect.

The exigent circumstances doctrine, however, is limited to instances in which the police initially have probable cause either to arrest or to search.

So, when one day police officers knocked on the door of the third floor apartment at 239 Knickerbocker Avenue, Stamford, CT, the following was known to them:

  1. GPS data from a third-party’s cell phone, which was believed to be in the suspect’s possession, suggested that the suspect had been in the general vicinity of that address (not that apartment) for some unknown period of time in the past 41 hours, and

  2. That the resident of the third floor apartment had recently been keeping company with two black men in her apartment. The suspect, naturally, was black.

Since the police were searching for a murder suspect from New Jersey, who they believed to be armed and dangerous, they thought it permissible to enter the bedroom without obtaining a warrant, because of “exigent circumstances”. But that’s just sophistry.

As Justice McDonald’s blistering dissent [PDF] states:

Thus, at the time the police knocked on Valvo’s apartment door, all they reasonably believed was that [the murder suspect] Singer possibly was in possession of a cell phone, that this cell phone had been in the vicinity of 239 Knickerbocker Avenue at some moment in the preceding forty-one hours, and that a man who has the same skin color as Singer had been staying in the third  floor apartment of 239 Knickerbocker Avenue for an unspecified period of time.

You’d think, now, that the name of the case is State v. Singer. It isn’t. It is State v. Kendrick [PDF]. Mr. Kendrick is one of those unfortunate black men who happened to be in the apartment at that time and in whose possession a gun was found after this warrantless search.

Mr. Singer was arrested in New Jersey, where the crime of murder had been committed. Further, the cell phone used to ping the general vicinity of Knickerbocker Avenue in Stamford? Never found in Stamford.

But this is all the information relied upon by the prosecution to convince a judge that exigent circumstances existed: the possibility that a black suspect had been in the vicinity of an apartment building and the knowledge that one of the apartments therein had a few black men in them.

That, the majority opinion states, is enough to lead officers to believe that there exists “a risk of danger to human life”.

Can you every imagine any court saying that about white people? The suspect is white, and armed, and that apartment building there has white people in it, so go ahead and burst into any room you want because officer safety!

Of course not. This stands only because being black carries with it the subtext of being a criminal. And, as this Court is wont to do, the result justifies the means: there was a gun, after all. So he was a criminal and he was dangerous.

The dissent makes the point that the police and prosecution may have had further evidence to tie those residents in that apartment to the cell-phone and the murder suspect, but chose not to present it. If that’s the case, this opinion is even more troubling.

What this signals, in that event, is that all the police and prosecution have to proffer to a trial judge in order to circumvent the Constitution is that the suspects are black. That, alone, is sufficient to justify an officer’s fear that the suspect is a danger.

We already know that in Connecticut minorities cannot freely walk the streets anymore without being suspected of criminal activity. Now minorities can’t sleep in their apartments at night without fear of cops busting in without any probable cause. Because our Court has affirmed that being black is the same as being armed and dangerous.

Ferguson: the no-Constitution zone

[The following is my latest column for the CT Law Tribune, to be published this week.]

To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment.

Until the Fourth Amendment, which is closely allied with the Fifth, is rewritten, the person and the effects of the individual are beyond the reach of all government agencies until there are reasonable grounds to believe (probable cause) that a criminal venture has been launched or is about to be launched.

Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him in their discretion, we enter a new regime.

So concluded Mr. Justice Douglas in his dissent – the lone dissent – to Terry v. Ohio, perhaps with greater prescience than even he would have envisioned. Today, some 46 years later, the fruits of that unwise policy have ripened and come to bear in America, presenting us with a country that seems unrecognizable.

Impossibility is not a defense

The law, you will have guessed by now, is not concerned much with the English language and its precise definitions. A fall-back answer that’s almost always right, when it comes to the law, is that everything “depends”.

Even something as simple as ‘impossibility’. When you, laypersons, think about the word “impossible”, you usually think of something that’s not possible. But the law isn’t that easy.

There are different categories of impossibility, each with its own definition and applicability: mistake of law, mistake of fact, legal impossibility and factual impossibility. Legal impossibility is where, no matter how evil your intentions are, your acts do not constitute a crime. Factual impossibility is where it is impossible for you to have committed a crime because you misunderstood the facts. A classic example used in law school hypotheticals is that of Sydney Barringer, the guy who died in a most tragic fashion.

But none of this takes into account the law’s stubborn desire to extract a conviction from just about anyone who wanders into its field of vision, despite the apparent physical impossibility of that person to have committed the crime.

This is how we come to meet Tyree Threatt, 21 years old, facing charges of mugging a woman on June 27. They didn’t arrest him that day, of course, but she gave a description of the mugger. A few weeks later, officers saw Threatt and determined he matched the description. Then they put his photo in a lineup and she picked him out.

Things from Ferguson that even you can’t ignore (updated)


A picture of Officer Friendly in Ferguson:


My, what a big gun you have. Now here’s what happens if you want to record Officer Friendly:


(via @rdevro) What happens to people who try to record the police in Ferguson, like Intercept reporter Ryan Deveraux? He gets detained, for no reason, held overnight and then released in the morning. I know some of you find paying attention hard, so here’s the relevant portion:



But certainly they must allow press and protests, right? I mean, it’s the most well-known part of the First Amendment! It’s not like the law allows them to detain anyone without reas-oh. And within designated areas? And only walking protests? Oh.


But what about that unprecedented action by Amnesty International to send independent observers? That certainly made sure that police were on their best behavi-oh:



Well, this is the America you got when you decided not to give a crap about what didn’t happen in your cocoon. I blame you. Because for a large percentage of the population, this shit doesn’t end. It is constant and ever-lasting. Please, read this and get your head out of the sand.




The apathy of privilege

I don’t live in one of Connecticut’s big cities anymore. I used to, but I don’t. I live in a residential neighborhood that is decidedly middle-class. I have a dog and I often walk that dog on my street and the streets nearby, as middle-class suburban folk are wont to do.

Last week, after our supreme court issued its opinion and while I was in the midst of getting indignant and demanding that people pay attention, I went for a walk. And it was heavenly. I forgot about everything. I forgot about the anger. I forgot about the frustration. I looked at the trees, neighbors’ yards and their flower gardens. I heard dogs barking from windows, I saw birds at bird feeders. I said hello to a few neighbors mowing their lawns. A man stopped to pet my dog. I smiled at him. I politely made way for some kids bicycling.

It was great. It was serene. It was peaceful.

It was horrible. I forgot all about Jeremy Kelly. I forgot all about Michael Morton. I forgot all about Cameron Todd Willingham. I forgot all about Troy Davis. I forgot all about the sad mentally challenged client who had fondled his younger cousin and who was now going to a very bad place that he would no doubt be completely unable to navigate. I forgot all about the hundreds of drug addicted individuals who were inartfully balancing that fine line between treatment and prison. I forgot all about the innocent man who had been arrested and locked up for weeks, the investigation of whose case had stalled. I forgot all about the institutional racism. I forgot all about prosecutorial misconduct. I forgot all about Trayvon Martin. I forgot all about the NSA and the CIA. Everything was right with the world. It was peaceful, happy, just.

From my stupor, it was easy to see how 5 wizened justices would rule that, of course, officer safety would trump the minor incursion into an individual’s Right to Suspicionless Assembly. Of course, in my neighborhood, if I saw one person up to no good, then his friend was also in on the scam. That’s the way of the world. It was white and black. It made perfect sense.

It felt great.

I hated myself. I hated myself because it was so easy. Because it was so tempting. There was nothing to slipping into that coma of blissful ignorance. I could abandon this career and never have to test my conscience again. I could walk away and never have to justify my principles again. I could take the easy path: the path of apathy. The path of following well-trod progressive trails. I could stick to the easy causes: health care, education, marriage equality. They were hard, but they weren’t controversial. It would be easy. It would be serene. It would be relaxing.

I think about that today. Michael Brown would be forgotten. Ferguson would be forgotten. Dr. King would be a token I would pay infrequent homage to. Leave it all behind and embrace my privilege. I could devote my life to Shark Week and Kim Kardashian. The Central Park Five, The Angola Four, Renisha McBride, that Lockett fellow with the horrible death by lethal injection would all run together as post-it notes to be called upon to appear informed and tut-tut the anomalous shortcomings of our otherwise truly fine institutions. But really, there would be no need to worry. There would be no need to fret. My rights aren’t really going anywhere. No cop is shooting at me 5 times. They aren’t detaining me on the street just because of who I’m standing next to. It would be so easy to wrap myself in that cocoon of privilege and turn up the apathy to 11.

It would be a lie. It would be a betrayal. It would make me a coward. If I only express support for easy causes, then I have no real principles. If I only investigate “trendy” issues, then I am nothing but a fraud. Activism, contributing to society and making a difference are meaningful only if you’re doing more than greasing the wheels that are running fine without your presence.

The easy path isn’t always the right path. I am privileged in many ways, but the people I stand up for, the causes that make me wake up every morning and shout at others for ignoring are causes that affect all of us. Those with privilege and those without. And every day that you let your apathy stand in the way of the protections that I deserve, I will smack you in the face and remind you that you’re part of the problem.

Your rights are my rights. Pay attention, because I don’t want to lose them any time soon just because you’ve decided that you’re too white or middle-class to be bothered.