Out of court

Thursday, August 2, 2012

A Nation of Laws and Lawbreakers

It is commonly said that America is a nation of laws. There are so many different laws in America, starting with the U.S. and the 50 state Constitutions, the federal statutes written by Congress for over 200 years, the 50 states' individual codes, the innumerable city and county ordinances, that no one can come up with a number other than to say 'maybe a million or so.' So does that make us law abiding? Not necessarily.

Historically, we were founded by lawbreakers who rebelled against the tax and other restrictions England imposed on the colonies. The real Boston tea party players were criminals to the English but the first patriots to us. Since then we have a tradition of resistance to various laws. Recall the underground railroad for runaway slaves, or the rum runners in the 1920's. How many of us are here either because our ancestors were draft dodgers or entered America without permission of the government? In the 1960's, peace protesters broke the law and so did marijuana smokers in droves. Illegal drug usage is still happening on a large scale, despite severe punishments for the suppliers.

There are those who believe that all drugs should be legalized and which in theory would stop the crime that surrounds the drug business. Easier said than done. Should the government get into the business of dispensing these drugs, or should it be a regulated industry like alcohol? If legalized, then minors would have to be prohibited. Would that still lead to more crime? I know when my kids were minors, they could easily find some adult to make a straw purchase for them. There were bums who hung out by the liquor stores who filled in nicely. Legalizing, while resolving some issues, will open other cans of worms. In Amsterdam, the Dutch government is moving back toward more restrictions on who can use drugs, prohibiting drug sales to non-citizens. The purported reason: to get rid of the 'criminal industry' surrounding the freedom to use drugs.

As vexing as drug laws are, traffic laws are nearly infinite in their numbers. Yet two violations--speeding and drunk driving--are still commonplace. Just drive on the freeway and note the average speed can often be at least 10 miles per hour over the limit, unless highway patrol is visible. Of course if you travel in Europe, speeders are even more rampant; whereas, drunk diving is less common due to better public transportation and more draconian penalites.

In America, drunk driving has declined because of higher penalties and well publicized enforcement. But what about texting while driving--which may be nearly as dangerous as drunk driving? Everyone agrees that 'smart phones' are risky to drive while using, and yet. . .

What does it take to get people to hang up and drive? The same methods that have caused drunk driving to decline. Should we send those who text while driving to jail? If we want to stop the keystroke distraction, yes! Will we? You know the cell phone companies and other lobbies will fight it. If it happens, it will take time and more bad accidents to change these new habits.

Then there are environmental laws and regulations. Recently Seattle banned plastic grocery bags, as have other cities. Is this the right way to get people to stop creating indestructible acres of plastic garbage? Or does this just add more expense to rising food costs? Speaking of which, New York City's mayor is pushing a ban on large sodas. How far should the 'nanny state' go in protecting people from bad consumer choices. Would such a law like this spawn soda renegades who would get around the ban with clever 'soda structuring?' And is mandatory broccoli consumption the next step to legislating good nutrition?

It all reminds me of Dupont's infamous corporate tagline: "Better Things for Better Living...Through Chemistry." Now we might say: "Better Things for Better Living...Through Laws and Regulations." If we keep up the lawmaking, I suspect the lawbreaking traditions of this nation may be in for another great revival.

Friday, July 27, 2012

Why Juries Are Better Than Judges

     One of the beauties of our system of justice is that all citizens are eligible to decide the cases.  Unlike the European or continental system, the Anglo-American system puts a cross section of people on a panel to reach verdicts on civil and criminal cases.  Deciding whom to believe is central to the jury's role.   This is what juries do best.  The 12 members of a jury use their collective wisdom and experience to decide who is telling the truth.

     I just had a serious felony trial where the state called the alleged victim and a presumbly independent witness to say that my client committed an assault.  On our side, my client and a fellow co-worker testified to a totally different and innocent version of events.  The prosecutors hammered on the "independence" of one of their witnesses and tried to show how 'biased' my co-worker witness was.  Nonetheless, the jury  acquitted my client in well under an hour.

     Why?  Obviously they did not believe the state's witnesses and instead believed our witnesses.  One clear reason is that the alleged victim's manner while testifying was strange.  He clearly spoke English, but instead used an interpreter (which the jury saw through and became suspicious of.)  He refused to ever admit a mistake even when I confronted him with inconsistencies.  He testified that he was in the middle of the street some15 feet away from the pedestrian crosswalk at the time of the assault.  His written statement to the police the night of the incident said he was "in the crosswalk."  When I asked him about that difference, he insisted there was no inconsistency--that he meant 'near' the crosswalk in his statement--so as to reconcile the inconsistency.  When asked about other inconsistencies he attempted to explain them all rather than admit error.  In closing I argued that a liar can never admit a mistake.

    In contrast, my witnesses did not use interpreters, even though their English was far from perfect.  In this way, the jury would understand and hear their actual words and get a better feeling for them as people.  They also had a nice, likable manner in contrast with the alleged victim and the other 'independent' witness.  When confronted by the prosecutor with some inconsistencies, my witnesses did not get defensive but either conceded error or explained in a way that made sense.  It was all about how they were perceived by the jury.  This intangible, call it likability, made all the difference.

     Judges, on the other hand, have difficulty with the intangibles.  They tend to be more intellectual and make decisions without really discussing it with anyone else.  So their thinking is not shaped by other viewpoints and for that reason, can be narrow minded.  For political and other reasons, they have a real problem in disbelieving police officers.  In contrast, jurors are much better at scrutinizing police credibility. 

     Recently, I raised a Fourth Amendment issue, attacking the stop and seizure of my client in a case.  This type of motion is only heard by a judge who decides both the law and the credibility of the witnesses.  The police witnessses were adept at either not recalling key events or of being so certain of their observations that they were superficially credible.  I say superficially because they convinced the judge they were truthful.  One police officer was over-the-top in his perfect recall of a split second event and was way too much of a know-it-all and see-it-all witness.  And yet, the judge bought his version of events.  Despite my best effort, the judge refused to make certain inferences which would have made their testimony less credible.  Instead the judge just assumed that what they said was true without critically analyzing their version.

     Obviously I lost that motion and maybe I'm bitter.  But I do believe a jury would have had a much harder time believing the police and probably would have been more open to my arguments than the judge was.  It's on appeal now to a panel of appeals judges but not to a jury.  I can only hope they act more like a jury.

Tuesday, April 24, 2012

"Stand Your Ground"

     The 'stand your ground' law in the notorious case in Florida is not that different from Washington law. 

     In Florida, the law reads this way: "a person is justified in using deadly force (and does not have a duty to retreat) if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony, or to prevent imminent death or great bodily harm to himself or herself or another."  [Florida Statute Section 776.012.]
"The use of deadly force is further justified when a person is resisting any attempt to murder such person or to commit any felony upon him or her or upon or in any dwelling house in which the person is located." [Florida Statutes Section 782.02]

    In Washington, if someone claims a killing was done in self defense, then the jury would be instructed this way: " It is a defense to a charge of murder that the homicide was justifiable as defined in this instruction. Homicide is justifiable when committed in the lawful defense of the slayer when:
     1) the slayer reasonably believed that the person slain intended to commit a felony or to inflict death or great personal injury;
     2) the slayer reasonably believed that there was imminent danger of such harm being accomplished; and
     3) the slayer employed such force and means as a reasonably prudent person would use under the same or similar conditions as they reasonably appeared to the slayer, taking into consideration all the facts and circumstances as they appeared to him, at the time of and prior to the incident.

     The State has the burden of proving beyond a reasonable doubt that the homicide was not justifiable. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty."  [Washington Pattern Instruction #16.02]

The jury would also be instructed: "It is lawful for a person who is in a place where that person has a right to be and who has reasonable grounds for believing that he is being attacked to stand his ground and defend against such attack by the use of lawful force. The law does not impose a duty to retreat."  [WPI # 16.08]  For many years this 'no duty to retreat' instruction was derisively referred to as 'the law of the Old West.'  Washington was one of many Western states that used this instruction.
The key ingredient in both Florida and Washington is the "reasonable belief."  To use the facts of the Trayvon Martin case, the state will have to convince the jury that Mr. Zimmerman's use of deadly force was not based on a reasonable belief.  Put another way, first, was he reasonable in following Martin after the 911 operator told him not to?  And more importantly, did Zimmerman reasonably believe that Trayvon Martin was about to kill him or commit a 'forcible felony' or cause great bodily harm?  Suppose that Zimmerman testifies that Martin punched him in the face or pushed him away, or even kicked him.  Is that sufficient for Zimmerman to reasonably believe Martin would kill him or cause great bodily harm?  Preventing a bloody nose or a black eye do not seem to be sufficiently threatening so as to justify deadly force, i.e., pulling out a gun and shooting.
I have had several murder trials where deadly force was used in a situation where some force would have been justifiable.  In one case, my client agreed to leave the bar and face a bully who was tormenting him.  They began a fistfight.  Then during the tussle, my client pulled a steak knife from his sock and began stabbing his opponent until the fight broke up.  The other man died of his wounds two weeks later.  Two juries heard this case (1st one reversed on appeal) and both convicted. 
Another case involved a client sleeping in his room.  His mother's boyfriend, a drunk and a bully, suddenly burst into the sleeper's room and began a fight.  My client pulled out a large kitchen knife he kept in his room and cut him more than a dozen times, killing him.  Some of the wounds were 'defensive'--to the hand and fingers, so a murder charge was filed.  The first jury voted 7-5 to acquit but could not reach a decision.  The re-trial jury convicted him of the lesser included offense of manslaughter.  And a third case involved a client who got into a fight near his home with his sister's ex-boyfriend.  When the ex-boyfriend began threatening to kill my client, he ran into his house got a .45 caliber gun and shot the ex-boyfriend from the front porch about 6-8 times.  The jury convicted him but said if he had only fired one time, they might have acquitted.
The similarity in the three cases is that the jury probably found that the force used was greater than necessary.  Washington law adds the requirement that the force be what a "reasonably prudent person" would use, but arguably the term "reasonable belief" in Florida can encompass that. 
The biggest difference may be the jury.  On the same facts, juries will differ in deciding what is "reasonable."  Stereotypically, in the South, or in rural areas, there is more tolerance for excessive force in self defense, but not always.  Another major factor in the Florida case will be Zimmerman's credibility and how he does on cross examination.  Since there are no other eyewitnesses, his version will largely be uncontested--except for the 911 calls.  A well prepared defendant will be advised to avoid contradicting those calls. 
In the end, the law that applies in Florida will not be that different from what is applied here in Washington.  Since the details of Zimmerman's story is not publicly known, there is no way to predict what the jury will do.  Whatever they do, it'll hit the fan hard.

Wednesday, March 14, 2012

Gun in Backpack Case: Parents' Assault Charge is Political

When a child is severely injured by another child's possession of a gun, as happened recently in Kitsap County, some parent is probably at fault as well. However, that does not mean the parent is liable to be prosecuted for assault. The charge of assault in the third degree against the mother and her boyfriend who owned the gun distorts the law and is a political charge.
To be guilty of third degree assault requires a showing that the defendant's conduct caused bodily harm accompanied by substantial pain. In virtually all cases of assault with a weapon, the defendant is the one who wielded the weapon. To be sure, one could be an accomplice to the assault, but that person would need to have aided or abetted the crime of assault by actively encouraging, helping, or assisting the assault in some way. Even the police concede that the parent did not place the gun in the boy's backpack nor did the parent tell the boy to go use the gun on someone. The parent was negligent, even reckless, in leaving a loaded gun on a desk, but in no way did their conduct cause the injury, as criminal cases require causation.
Criminal liability cannot rely on a 'hole-in-the-bucket' chain of events to create liability. If parents can be held to answer for an assault here, then the slope is extremely slippery. For example, is a person committing the crime of assisting a suicide if they forget a legally prescribed bottle of oxycodone is in the family medicine cabinet and a depressed young teen finds it and overdoses on it? Or, if a cook leaves a very sharp kitchen knife on the counter and his known, mentally ill nephew grabs it and stabs someone with it, is the cook guilty of assault, too? No of course not! The cook did not commit the assault as there were intervening events between his act and the act of assault. Similarly, the conduct here--leaving a loaded gun on a desk--could have led to any number of outcomes, some bad and many other inconsequential ones which harm no one.
Causation in criminal cases has two components: legal cause and factual cause. The Washington Court Of Appeals in the case of State v. Christman, 160 Wn. App. 741, 753 (2011) is instructive. There, the defendant provided a friend a few methadone pills at a party and the friend died. The defendant was convicted of a "controlled substance homicide" and his conduct was considered a factual or proximate cause of the friend's death, even though the friend's death was also caused by the alcohol and methamphetamine he got elsewhere. Factual or proximate cause means: in its factual context, as “a cause which in a direct sequence unbroken by any new superseding cause, produces the injury complained of and without which such injury would not have happened."
In the Christman case, the defendant's act of giving the controlled substance (methadone) led directly to his friend's death. In contrast, in the Kitsap case, the parent's negligence in leaving a loaded gun in the house, required the child to find it, pick it up, place it in his backpack in a certain way, take it to school, then slam the backpack down in such a way as to discharge the firearm, and thereby wound the nearby schoolgirl. There are four or more intervening steps required here between the conduct and the end result. It is not unbroken. Obviously if the mother or boyfriend had placed the loaded gun in his backpack to ensure that it would go off at the slightest jostle, perhaps then it might be a factual cause.

Even if one stretches the concept of factual cause to include this conduct, then legal cause should slam the door shut. Legal cause means causation by which the court weighs policy considerations in cases where a defendant's act is so removed and attenuated from the result that perhaps liability ought not attach. If reckless endangerment were charged here, there is a good argument that the parent's conduct recklessly endangered the safety of people by leaving a loaded gun around. However, to say that the parent is guilty of an assault ignores the long history of the specific and well known acts that comprise an assault. In short, the parent did not point, shoot or possess the gun at the time the girl was shot. The parent was not present nor did the parent encourage it or actively assist it. None of the traditional acts constituting an assault were present. The parent's conduct, albeit grossly negligent, is not the conduct that led inevitably to the girl's wound. That is why legal cause also does not exist for an assault charge against the mother or her boyfriend.
In the end the mother's and boyfriends actions are too attenuated for an assault charge to lie. But this particular pair is easy to pick on. Presumably they are poor and uneducated, and both have criminal records. What is more, the prosecutor looks good to the community, as its three-piece-suited protector. This case is in sharp contrast with a more recent one in Marysville. There, a very young child grabbed his father's gun out of the glove box, and shot his sister to death, while they were left unattended in the family car by the parents who were nearby. His father happens to be a police officer. Will he be charged with negligent homicide? That may be the better test case, as his negligence is not as attenuated. He was present, he left the gun loaded and easily accessible, and his supervision of young children was wanting. The chain of events is much shorter. Still, prosecutors are loathe to charge police officers and juries tend to let them off. We shall see. . .