Can you watch the police bodycam video – starting at 13:40 – without getting mad as hell?  I can't.

 

An incident in Seattle illustrates two important points:  First, police managers are not controlling their officers but letting them run amok, terrorizing innocent victims.  Second, all of the blame cannot be placed on racial prejudice.  The victim in this case was white.

Howard McCay was 72 when cops invaded his home in 2019.  About an hour earlier, someone had called the police department's non–emergency number to report that the doors to McCay's house were open.

Listen to the call here.  McCay's lawyer placed it at the beginning of a YouTube video which also includes the bodycam footage.

The caller had begun by saying "it's not an emergency" and the police must have believed him.  They did not show up at McCay's house for another 50 minutes.

Four cops, one of them with an "assault–style" rifle, entered the house. McCay, who had been sick and was worn out, was sleeping soundly in his upstairs bedroom, with the door closed.

Finally, McCay awoke, heard noises and called 911 to report an intruder.  The dispatcher told him they were police officers and that he should cooperate with them.  He did.

The cops yelled through the bedroom door to come out with his hands up.  He did.  They told him to turn around.  He did.  They told him to kneel with his hands over his head.  He did.

Before his retirement, McCay had suffered a shoulder injury while working as a longshoreman.  When the officers pulled his arm back  to handcuff him, the pain caused him to scream, but the cops wouldn't stop.

He was still in pain, when the officers told him to stand up.    McCay, on the top stair and handcuffed, strained to keep his balance and he tried to stand.  He said, "Hold me so I don't fall."

One of the cops answered, "Stand up on your own.  If you fall, it's on you."  McCay slid down a couple of steps and the cop told him to "use your legs."  Eventually, another officer helped McCay get to the front porch.

There, one cop took McCay's wallet, checked his ID, and discovered what McCay had told them.  He lived there.  They released him.

The officers' actions not only flout the Constitution, they defy common sense.  Why did the cops handcuff McCay?  He wasn't trying to get away and, besides that, they had no probable cause to suspect that he had committed any crime.

And why did they force McCay – an old man obviously in pain – downstairs?  Why didn't they just check his ID where they were?   

McCay filed suit against the Seattle police department.  Based on the bodycam video, it is clear he has an excellent case that they violated his Constitutional rights by using excessive force.

To determine whether the amount of force used was unreasonable, courts weigh several factors including "severity of the crime," whether the person posed a threat to the safety of the officers or others, and whether he was actively resisting arrest.  Here, there was no evidence that any crime had been committed.  McCay, who was 72 and not feeling well, posed no threat, and he was cooperating, not resisting.

Before he filed suit, McCay complained about the officers entering his apartment with guns drawn but the Office of Police Accountability announced that the cops had been following department policy!  If so, the city, not just the individual officers, will be legally liable.

I'm betting that city officials, after watching the damning video from the bodycams, will decide to settle out of court.  With taxpayers' money, of course.

The only way to prevent incidents like this – and worse – is to  impose serious discipline on the offending officers, at least a suspension without pay for the first incident and discharge for a second similar one.

Of course, that's easy to say but there may be significant obstacles, such as collective-bargaining agreements with unions representing officers and having significant political power.  Balancing the interests of the officers, the management and the public won't be easy, yet it needs to be done.

Consider George Floyd's killer, former Minneapolis officer Derek Chauvin.  He wound up in prison. Finally.

However. before the day George Floyd died, Chauvin had used excessive force on at least 6 other people, and at least 2 of them had filed complaints against him, but he wasn't even reprimanded.  Giving any person a gun and authority and then failing to supervise that individual puts all of us at risk.

Iowa's "Back The Blue" Law Protects Cops, Not Public

By K. W. Locke

Several states, most recently New Mexico, have abolished or curbed the doctrine of qualified immunity which prevents many victims of police misconduct from taking cops to court.  Iowa, however, has now gone in the opposite direction.  Its legislature recently passed a bill which writes this judge–created doctrine into state law.

Iowa Governor Kim Reynolds signed the bill into law on June 17.  Referring to police as "the heroes who patrol our streets," the governor said "tragically, this fundamental and wholesome part of America's culture is now under vicious attack."

Does that strike you as a bit over the top?  Sadly, the discussion has turned into a grade B western movie with good guys who can do no wrong against bad guys who are always wrong.  People feel compelled to take sides, each person deciding which group wears the white hats.

But that kind of either/or thinking – cops are either angels or devils – doesn't deliver any useful answers.  We need a system which recognizes that police officers are human beings with assorted flaws, just like the rest of us.   America's founders, mindful that imperfect human beings would be running the government, built checks and balances into the Constitution.  We need to apply the same principles to the criminal justice system.

Even the concept of qualified immunity isn't bad in theory.  Most of the harm comes from the way it has been applied.

The Supreme Court essentially has held that a police officer can be sued for violating someone's legal rights only if the right had already been clearly established.  That sounds reasonable enough, but in practice, courts have made it very difficult to show that a right was "clearly established."

For example, in one recent case, police in Fresno, California were investigating illegal gambling and executed a search warrant authorizing them to confiscate money.  The officers claimed that they had seized $50,000.  However, the property owners filed suit, alleging that the cops really had taken more than 6 times that much, and had pocketed, unreported, $151,380 in cash and $125,000 rare coins.

The officers invoked qualified immunity.  To overcome that defense, the plaintiffs had to show that they had a Constitutional right not to be stolen from, and that the right was so clearly established the police reasonably would know about it.

That sounds pretty self–evident.  But not to the judges.

The U. S. Court of Appeals for the 9th Circuit looked at the case precedents and decided that, when the seizure took place, it had not been clearly established that stealing the money violated  a Constitutional right.  "Although the City Officers ought to have recognized that the alleged theft was morally wrong, they did not have clear notice that it violated the Fourth Amendment – which, as noted, is a different question."

This type of judicial nitpickery makes me want to tear my hair out.  Such reasoning has let cops off the hook for many other kinds of misconduct.

The officers should have known not only that stealing was morally wrong, but also that it was illegal.  They're cops.  If someone else had taken the money, they would have gotten out the handcuffs.

But the federal court wasn't concerned about whether the police knew about the state law prohibiting theft.  The court was concerned with Constitutional law.  Was it a violation of the Constitution – of the Fourth Amendment's prohibition on unreasonable searches – for the officers to take the money?  

At the time of the seizure, no court had held that it violated the Constitution for cops to seize money and pocket it.  Hardly surprising.  How often would a case like that come to a court's attention?

However, it would be easy to draft a statute which preserved the concept of qualified immunity while eliminating its potential for abuse.  For example, the law could provide that there would be no immunity for conduct that violated a right clearly established by judicial precedent or by a statute.  It might also provide that there would be no immunity for conduct that violated a city ordinance or a police department regulation.

Unfortunately, the Iowa legislators made no attempt to correct the problem.  Their new "Back The Blue Law" specifically states that it applies in addition "to any other statutory or common law immunity."

                         

Who Pays For SWAT Team's Mistakes?

By K. W. Locke

    What do a SWAT team and an escaped lion have in common?  Both roar in and cause damage, but don't have to pay for what they break.

    You've already read here how a SWAT team in McKinney, Texas, caused $50,000 damage to a house and left the innocent owner with the bill.  We've also reported about the SWAT team in rural South Dakota that tore up a house trailer even though officers knew witnesses had reported that the fugitive was elsewhere.

    Here are more examples of what can happen when you give people guns and battering rams and no–knock warrants and also give them immunity from lawsuit.  Earlier this month, a federal appellate court issued another decision illustrating just how difficult it is to hold the police liable for damage they cause.

     The court considered a 2018 incident when a SWAT team in Henry County, Georgia, seeking a drug dealer, battered in the door of the wrong house, exploded a flash-bang grenade and arrested a 78–year–old who had just been sitting there watching television.  Later, the cops learned they'd made a mistake.
                                     
    The warrant had listed the correct address for the drug dealer and the cops had gone to that address first.  They found that building to be in bad shape and, apparently, unoccupied.  So, the SWAT team captain figured that the correct building must be this other one nearby.

    He might not have made that mistake if he had read the warrant carefully because it included a description of the drug dealer's house.  But the SWAT captain didn't bother.

    Narcotics detectives had wanted the drug dealer arrested but considered him too armed and dangerous for them to handle alone.  So, they asked the SWAT team to provide the muscle.  The SWAT team captain relied on the detectives to point out the right building to raid.

    When the court found that the captain had immunity, it stressed that the raid was dangerous because criminal friends of the drug dealer lived nearby.  The court also described how carefully the officers had planned the raid.  Therefore, the judges reasoned, this case was different from an earlier one where the court had denied immunity to a clearly negligent officer.

    Courts, wielding the doctrine of qualified immunity, make it very difficult, if not almost impossible, for someone to hold the police liable for their own negligence.

    The law holds a private party using something inherently dangerous - whether it be dynamite or a lion - to be strictly liable for any harm caused.  But a city or a county can equip a SWAT team with weapons and explosives and set it loose, and not have to pay a cent for any resulting damage!  That needs to change.

       In Flint, Michigan, a SWAT team with a no–knock warrant battered down the door of the wrong home and held a family at gunpoint.  A lawyer representing 28–year–old Michelle Colson and 56–year–old Renee Dunigan has now written Attorney General Merrick Garland asking for a federal investigation.

    The lawyer's letter said that the Michigan State Police SWAT team "rousted the family at gunpoint, literally from shower, sleep, and bed, and forced them to sit together for one hour – in Michelle's case unclothed, having just stepped out of the shower – while approximately 50 officers tore the house apart."       

    An informant had given the State Police misleading information.  The suspect lived in the house next to the one the SWAT team raided.   The letter requesting a federal investigation claimed that the police did not do anything to verify the information before they conducted the raid.

    This would be a good time for Attorney General Garland to act.  The federal government has just announced it will investigate domestic terrorism.  Few things can cause more terror than a SWAT team running amok.

* * *

   An earlier post on this blog reported that Loveland, Colorado police officers had injured a 73-year-old woman with  dementia who reportedly had walked out of Walmart without paying for an item.

   Two of the cops involved - shown above in an image taken the day of the incident by a police department surveillance camera - have resigned.  Both Austin Hopp (at left) and Daria Jalali (right) now face criminal charges.

    Larimer County District Attorney Gordon McLaughlin charged Hopp with second degree assault, that is, with assault causing serious bodily injury, which is a felony.

    The DA also has charged Hopp with "attempt to influence a public servant," which is also a felony.  The DA alleges that Hopp filed a misleading police report concerning the incident.

      The other former officer, Jalali, faces charges under a relatively new, and pioneering, Colorado law requiring a police officer to intervene, rather than just stand there and do nothing, when another officer is hurting someone in custody.  The DA charged Jalali with such a failure to intervene as well as with a failure to report the use of force.  Both are misdemeanors. 

   Additionally, both former officers face charges of official misconduct, arising out of the same incident.

 Banner based on image from bodycam worn by member of the Henry County (Georgia) Sheriff's Department Special Response Team; Georgia map from Wikipedia.   Photograph of Michigan State Police sign from MSP website. "Update" banner, showing Officers Hopp and Jalali "fist-bumping," based on image from surveillance camera in Loveland (Colorado) Police Department.  Bodycam image of arrest from Loveland Police Department.  Mugshots from Larimer County (Colorado) Sheriff's Office.                                                                                      

 

 

 

 

 

 

 

 

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              

 

 

Illinois Bill Curbs Coercive Interrogation of Kids

by K. W. Locke

    The Illinois legislature recently passed a bill to prohibit police interrogators from lying to kids under 18.   According to the Innocence Project, which supports the measure, no other state has enacted such legislation.

    Researchers have documented 250 instances when coercive interrogation tactics have led to false confessions.  Read about some cases here and here.

    To avoid confusion, I should point out that when I use the term "false confession," I'm not talking simply about a person pleading guilty to a crime he didn't commit.  That happens a lot, and there are many reasons why.

    If a poor person has been sitting in jail for months because unable to make bail, he might well choose to plead guilty just to get out.    With each day behind bars, the prosecutor's offer – plead guilty and we'll let you go for time already served – becomes increasingly tempting.

    An innocent person of moderate means – who earns a little too much to qualify for free legal representation – may decide it's cheaper to plead guilty and pay the fine than it would be to hire a lawyer.  That choice can seem particularly attractive because paying a lawyer is no guarantee of acquittal, and besides that, it prolongs the unpleasantness of being a defendant in court.

    People make those choices but that's not what I'm talking about when I say "false confession."  I'm talking about confessions resulting from intense psychological manipulation. 

   Decades ago, interrogators left marks.  They called it the "Third Degree."

    In 1973, I was a law clerk for a judge in Michigan and got to watch the proceedings in his court. One time, the cops brought in a kid not that much younger than I was.  You could tell he'd been beaten.  The judge, I'm proud to say, dismissed the charges.

    Today, police interrogators know how to rough the person up psychologically.  No visible marks!

Coercion Honed to a Science

    Often, they use the so–called "Reid Technique."  It entails relentless interrogation, carefully designed and structured.  

    The questioner insists the suspect is guilty no matter how many time he denies it.  The interrogator just won't take "I'm innocent" for an answer.

    The interrogator lies to the suspect, telling him that others already have confessed and are pointing the finger at him.    The cop makes a promise of leniency, or implies that if the person will just confess, this hell will stop and he can go home.

   After hours of grilling, the false confession seems to be the easy way out.  Of course, it's anything but.

    Sometimes, the person even believes what he's confessing.   (When that happens, researchers call it a "persuaded false confession.")

   In one case, interrogators even convinced a deputy sheriff  that his subconscious mind had repressed the memories of what he supposedly had done.  These were very serious offenses - molesting his daughters and killing babies during satanic rituals - but he confessed.

   Studies have shown that people with disabilities and those under 18 are particularly vulnerable to intense psychological tactics.  If the Illinois legislation becomes law, it will be a good start.

    Last month, this blog reported that the prosecuting attorney in Kansas City, Missouri, was trying to free a man, Kevin Strickland, who'd been in prison 42 years for murders he didn't commit.  Jointly with attorneys from the Midwest Innocence Project and volunteer lawyers from a large firm, she petitioned the Missouri Supreme Court on Strickland's behalf.

    However, on June 2, the court declined to consider the petition.   The prosecutor isn't giving up.  If the governor signs a bill recently passed by the Missouri legislature, she will be able to ask a trial–level court to find that Strickland is innocent.

    Read more about it here.

Banner:  Screenshot of FBI video of interrogation of Ariel Castro, who confessed to kidnappings, rapes and murders.  (Source:  FBI via Wikimedia Commons.)  Nothing suggests that Castro gave a false confession.  He later committed suicide in prison.

Unethical Texas Prosecutor

Loses Law License

 By K. W. Locke

     Twenty-one years ago, in Dallas, Texas, two men went to prison for a murder they didn't commit.  To obtain convictions, the prosecutor had withheld evidence of their innocence and elicited false testimony from a "jailhouse informant."

    The prosecutor had made a deal to go easy on the jailhouse informant in return for the informant's testimony that the men had confessed to the crime.  Yet at trial, when questioned by the prosecutor, the informant denied that any such deal existed.

    Of course, the prosecutor knew better but said nothing.  He helped perpetrate a lie.  A very costly lie.

    The prosecutor's misconduct came to light when lawyers from the Innocence Project, the Innocence Project of Texas, and the Dallas County District Attorney's conviction integrity unit worked together to exonerate the men.

    When they opened the old prosecutor's case file, they discovered correspondence from the informant which exposed the lie.  They also found that the prosecutor had known, but failed to disclose, there was an eyewitness whose testimony would have helped the defense.           

    Recently, that now-former prosecutor lost his license to practice law.  Reportedly, the ex-prosecutor, Richard E. Jackson, is driving a tour bus in Alaska.

     That doesn't sound like a very severe punishment, considering the harm he caused.  Each of the innocent men spent 15 years behind bars.   Even after their release, it took 4 more years before a court declared the men "actually innocent."

    The prosecutor could have been arrested and charged with the crime of suborning perjury.  Compared to prison time, taking away his law license merely amounted to a slap on the wrist.  Yet even disbarment of a prosecuting attorney is a rare event. 

    Moreover, a prosecutor cannot be sued for eliciting false testimony from a witness, even if the prosecutor knows that the testimony is untrue.  A prosecutor's conduct in the courtroom enjoys absolutely immunity from civil lawsuits.

    There need to be safeguards to prevent misconduct which puts innocent people in prison.  And when such misconduct does occur, the offending prosecutor should face consequences proportional to the harm he or she caused.

    The assistant chief of a large constable precinct in Texas assigned two female deputies to pose as prostitutes attending parties which were part of an undercover sting operation.  However, the deputies recently sued, alleging that at these "parties," the assistant chief would get drunk and molest them.

    Read more about their lawsuit here, on the Bureau of Stupidity blog.

New Orleans Judge Throws Out Murder Conviction 

Because Previous Prosecutor

Withheld Evidence From The Defense

    (June 2, 2021) The present parish district attorney in New Orleans did the right thing.  He learned that his predecessor had withheld evidence from the defense in a murder case.  So he informed the court.

    The judge vacated the 2007 conviction of Kaliegh Smith, who was serving a life sentence.  At the time of Smith's conviction, Louisiana did not require a guilty verdict to be unanimous, and Smith was convicted by a vote of 10 to 2.

    Today, a verdict must be unanimous to convict.  The prosecutor has not yet decided whether to retry Smith.

    Read more here.

Some Good Deeds By Prosecutors

by K. W. Locke

 Thanks to DNA technology, many of the wrongfully convicted have been able to prove their innocence.  But what if investigators find no DNA to test?

Centurion Ministries, of Princeton, New Jersey, specializes in cases lacking DNA evidence.  Since 1983, this non-profit organization has freed 63 innocent people who had been sentenced to life, or death, in prison.
     
One of them, Larry Walker, walked out of prison on May 21, 2021.  The Philadelphia native had spent 38 years behind bars for a murder he insists he did not commit.

Centurion's investigation did not uncover airtight evidence of Walker's innocence.  It left the district attorney less than totally convinced.

However, the evidence did call into question the fairness of Walker's trial and the correctness of the jury's verdict.  So the DA offered Walker a deal.  

The jury had found Walker guilty of second degree murder, which carried a life sentence.  If Walker would plead "no contest" to third degree murder, he could be released from prison based on time already served.

Walker agreed and was released, even before he entered the plea.  That will come next month.

Other district attorneys might have been reluctant to offer such a deal.  But this DA is Larry Krasner, who ran for office on a reform ticket and who refuses to prosecute certain low-level offenses.  

Both former President Trump and the police union want him voted out of office.  But, with respect to Walker, I believe Krasner did the right thing.

I suspect that the district attorney in Nashville, Tennessee, would not want to be likened to Krasner.  He might prefer not even to be mentioned in the same blog post.

However, Glenn Funk deserves some praise and he's going to get it here whether he wants it or not.  Funk recently filed a pleading seeking the exoneration of Paul Garrett, who remains in prison for the manslaughter of a sex worker two decades ago.

Funk's action stands in sharp contrast to that of his predecessor.  According to the Nashville Scene newspaper, the previous district attorney had learned in 2011 that a police detective had testified, falsely, that Garrett had confessed to the murder.

The Nashville Scene reported that the previous district attorney also knew that a crime scene DNA sample did not match Garrett's DNA but did match that of another man identified through a national DNA database.  An assistant district attorney reported to her boss that "Garrett deserves to be released immediately with no conditions and to have his record clear."

However, the previous district attorney did not follow that recommendation.  He just wrote the parole board recommending an immediate release, at the same time stating that he could not say that Garrett was "utterly blameless."

That was in 2011.  A decade later, the new district attorney notified the court that "this office knows of clear and convincing  evidence establishing Mr. Garrett was convicted of a crime he did  not commit. . ."   

Bravo, Glenn Funk!

Meanwhile, 200 miles to the west, the district attorney in Memphis, Tennessee, has established a Conduct Review Unit to investigate allegations of police brutality.  DA Amy Weirich already has brought charges against two Memphis officers.                    

   

(June 3, 2021)  The Missouri Supreme Court has declined to consider a petition filed on behalf of Kevin Strickland, who has served 42 years in prison for murders he did not commit.  The court did not give a reason for its decision.

    Prosecuting Attorney Jean Peters Baker, convinced of Strickland's innocence, had joined with lawyers from the Midwest Innocence Project and from a large international law firm, in seeking Strickland's release.  This team has not given up.  Baker said that "we are pursuing all avenues of exoneration for Mr. Strickland."

    The governor knows about the case and might pardon him, but it hasn't happened yet.  Recently, Missouri Governor Mike Parson pardoned 36 people pardoned 36 people, but Strickland's name wasn't on that list.

    However, there is another possibility.  The Missouri legislature has passed a bill to give circuit courts - the trial-level courts of general jurisdiction - authority to free the wrongfully-convicted.

    If the governor signs the legislation, it will take effect this August 28.  Prosecutor Baker said that, if it is still necessary, she will be ready that morning to file a petition seeking Strickland's release.

 

    ORIGINAL ARTICLE

A Role Model for Prosecutors

By K. W. Locke

 (May 16, 2021)  No one likes to admit an error, but prosecutors can be especially hardheaded.  Even when clear and convincing evidence proves that a convict is really innocent, many prosecutors reflexively oppose his  release from prison.  And even after an innocent person is released from prison and asks a court to clear his record, some prosecutors will fight that effort tooth and nail.

    So, Jean Peters Baker, the prosecuting attorney in Jackson County, Missouri, deserves applause.  She is seeking the release of a man who has spent 42 years in prison for murders he did not commit.

    Actually, many people deserve credit.   Three attorneys from a prestigious international law firm, working without pay, teamed up with the Midwest Innocence Project to assemble and present evidence that Kevin Strickland was not part of the gang that killed three people and injured a fourth in 1978.

     Strickland's first trial ended with a hung jury.  During the second trial, a survivor mistakenly identified him as one of the four attackers.  However, she later recanted that testimony.

    Additionally, just months after Strickland's conviction, one of the actual perpetrators entered a guilty plea.  This guilty plea went much further than just saying "I did it."  The perpetrator gave a detailed description of the crime which made clear that Strickland had not been present.

    Other perpetrators gave sworn statements exonerating Strickland and identifying the true murderer.  Nonetheless, Strickland remains in prison today.

     That may soon change.  In November 2020, the Midwest Innocence Project and the attorneys from Bryan Cave Leighton Paisner presented evidence of Strickland's innocence to the Jackson County Prosecutor's Office.

Recently, Prosecutor Jean Peters Baker joined in their petition to the Missouri Supreme Court to free Strickland.

   Legally, the prosecutor didn't have to do that.  That's because the ethical rules binding lawyers in Missouri differ from the Model Rules of Professional Conduct adopted by the American Bar Association.

    The ABA's Model Rules are not binding, but provide an example which many state supreme courts copy in promulgating the ethical standards for that state's lawyers.  In fact, almost all of the Missouri rule governing prosecutorial conduct does closely follow the ABA's Model Rule, but the Missouri Rule leaves out the last two sections of the Model Rule.

Those last two sections – (g) and (h) – concern what a prosecutor must do upon discovering that a person already convicted of a crime is innocent.  They state:

          (g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:

          (1) promptly disclose that evidence to an appropriate court or authority, and

          (2) if the conviction was obtained in the prosecutor’s jurisdiction,

          (i) promptly disclose that evidence to the defendant unless a court authorizes delay, and

          (ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.

          (h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

    Because the Missouri rules do not include these provisions, the prosecutor would not have been subject to discipline if she had simply declined to join in the petition.  She did the right thing anyway.

 

    Bravo!