Archive | July 2013

Trial Insider – Police Dog’s Bad Record Upends Murder Conviction


July 29, 2013

The state prosecution’s handling of this Los Angeles murder case just smells bad.  The 9th U.S. Circuit Court of Appeals overturned the murder conviction of Gilbert Aguilar Monday, because state prosecutors failed to disclose the police dog that identified Aguilar’s scent had a history of mistaken scent identifications.

The only question in Aguilar’s case was the identity of the shooter who killed John Guerrero in 2001 while his car was stopped at a stoplight.

Aguilar’s defense was that another young Hispanic man, Richard Osuna, shot Guerrero.

Prosecutors produced evidence that “Reilly” the police dog alerted to a scent allegedly showing Aguilar’s scent was present on the front passenger seat of a car carrying the shooter.

What the prosecution did not do was mention that Reilly had a history of making mistaken scent IDs, even though it had stipulated to Reilly’s mistakes in a different trial several months earlier.

In addition, the dog’s scent ID was the only evidence linking Aguilar to the car.  While evidence against Aguilar was weak, “substantial” evidence suggested Osuna as the potential killer, according to Judge William Fletcher.

Osuna’s brother was shot several days before Guerrero was shot.  Two witnesses testified that Osuna jumped into a white Volkswager Beetle to pursue Guerrero’s car. Another witness testified Osuna toler her he had shot a “fool.”  But he was never investigated as a suspect.  In fact, the prosecutor in this case “expressly told the police not to pursue an investigation of Osuna,” Fletcher wrote, because it would be a “wild goose chase.”

By contrast, there was no clear motive for Aguilar to shoot Guerrero, no physical evidence tied him to the crime and the faces of Aguilar and Osuna are very similar but Aguilar is older and significantly taller.

Fingerprints later recovered in the Volkswagon matched Osuna but not Aguilar, according to the opinion.

Eye witnesses identified Aguilar as the shooter, but several of those earlier gave police physical descriptions that matched Osuna, rather than Aguilar.  At trial, the witnesses changed their descriptions to match Aguilar.

He was convicted in 2006.

A California Court of Appeal upheld Aguilar’s conviction, rejecting the dog-scent evidence issue.  Aguilar then took his appeals to federal court.

Fletcher found the prosecution failure to tell Aguilar’s defense lawyers about Reilly’s scenting problems was what’s known as a Brady violation, a standard that requires the government to turn over, or disclose, evidence potentially helpful to the defense.

Whether or not the trial prosecutor knew about Reilly’s history, the dog’s handler did and had an obligation to disclose it, according to Fletcher.

Aguilar must be released or given a new trial.

He was joined by Judges Harry Pregerson and Mark Bennett, visiting from the Northern District of Iowa.

Case:  Aguilar v. Woodford, No. 09-55575

A Reminder of the Power of a Judge and the Impact on People

Two witnesses in trial of Jefferson County judge Dorothea Batiste testify to being jailed on contempt charges

MONTGOMERY, Alabama – Two people testified before theAlabama Court of the Judiciary today that they were not given a chance to defend themselves against contempt of court charges before Jefferson County Circuit Court Judge Dorothea Batiste had them thrown into jail. One witness, a woman, had served three days in jail in 2011 before she was released. In another case, a man testified about serving 12 days in jail last year before his attorney got another judge to release him, according to testimony.

The nine-member court began its trial today for Batiste, who was suspended with pay April 19 after a complaint was filed by the Alabama Judicial Inquiry Commission charging her with 30 violations of the Alabama Canons of Judicial Ethics. The charges relate to her having seven people thrown into jail on contempt charges in five divorce cases that were before her. Most of the people had been witnesses in divorce cases and one involved child support payments.

As the trial began both the prosecutor and a defense attorney argued about the case, which has included charges of political intrigue, discrimination, and sexual harassment.

Griffin Sikes, the Judicial Inquiry Commission attorney prosecuting the case, told the court that the allegations against Batiste are that she didn’t follow the law and allow the seven people she had jailed a chance to respond first and did not allow bail. “This case is about due process of law,” he said.

Sikes urged the judges not to consider Batiste’s various claims of racial and gender discrimination, a political vendetta, selective prosecution, and a sexual harassment complaint against the former presiding Jefferson County judge. Instead, he said, Batiste did not know the law, nor attempted to learn the law, ignored it, or willfully violated it.

“I invite you to keep your eye on the ball,” Sikes said.

Julian McPhillips, an attorney for Batiste, called the prosecution of the only black Republican woman judges in Alabama “one of the worst cases of a railroading.”

Defense attorney Kenneth Shinbaum and Batiste also questioned witnesses today.

McPhillips told the court that at worse Batiste made a good faith mistake. He said that in at least four of the five cases cited were where the judge had used another procedure than contempt – one called a writ of attachment used to order a no-show witness picked up and brought to court.

In a court filing last week, McPhillips had said that had Batiste not issued the attachment orders or contempt citations the other parties who had repeatedly shown up for court would have been denied their due process.

Batiste was a good judge who had cleared the backlog in her court, disposing of 2,259 cases in less than two years, McPhillips argued.

But he said there has been selective prosecution of Batiste, with at least one recent former domestic court judge having used their contempt powers more and holding people in jail longer than Batiste, McPhillips said.

McPhillips also said charges against Batiste were orchestrated by former presiding Jefferson County Circuit Court Judge Scott Vowell, a Democrat who Batiste claims had sexually harassed her and had political agenda.

Vowell has called Batiste’s claims baseless. Also, last week the chief judge of the commission ruled that Batiste could not use the charges as defenses at the trial and could only use it for purposes of impeaching a witness or possibly mitigating any possible penalties.

Two witnesses testified today about Batiste ordering them jailed before they had a chance to respond.

Sonja Bell testified that she spent three days in the Jefferson County Jail. She said that in August 2011 she had found a subpoena on her door to testify at a hearing at a divorce case – not her case – scheduled for two days later. But she was scheduled to leave on a pre-planned vacation that same day and called Batiste’s office to inquire. She said she also called a lawyer who advised her that the subpoena had not been properly served so she didn’t have to go to the hearing.

While on vacation she learned Batiste had issued a contempt order against Bell ordering her to jail for five days. She hired an attorney, who also told the commission today that he couldn’t get Batiste to hold a hearing on the contempt charge unless Bell first served jail time.

Bell said she served three days over a weekend before being released the following Monday.

Bell said she was exposed to a crack addict and a heroin addict. “I felt like I had a death sentence almost. It wasn’t fair,” she said.

Curtis Austin testified that he was arrested and jailed 12 days after Batiste issued an order he was unaware of for missing a court appearance of which he had no prior notice. He said he was behind on child support and the hearing was regarding an increase in payments.

Everett Wess, a Birmingham attorney who was hired by Austin’s current wife, testified that after repeated attempts try to get Batiste to hold a hearing, he went to another judge, Jefferson County Circuit Court Judge Robert Vance, to issue an order releasing Austin.

“I was just trying to get my client out of jail as soon as I could because I thought he was being held unconstitutionally,” Wess said.

Wess had hired Batiste to work in his law office about 10 years ago, but had to let her go because she didn’t understand some fundamental issues in the law. But he said he did donate to and support her campaign for the bench.

Testimony in the trial restarts at 9 a.m. Tuesday. The trial is to continue at least through Wednesday.

A Good Article Regarding Lawyer Fees from “Above the Law”

I have in my office a framed print of the classic New Yorker cartoon: “You have a pretty good case, Mr. Pitkin. How much justice can you afford?” I often find myself referring to the cartoon when talking to prospective clients.

For one thing, the joke is a light-hearted way to broach the subject of fees. This can be a difficult or awkward subject, yet it is critical that prospective clients understand the fees involved in a representation. Whether you are handling a matter on a contingent fee, a flat rate or hourly basis, or otherwise, clients need to know that nothing comes for free. If you can’t have a frank and detailed discussion about your fees and expenses, you inevitably will have trouble collecting. For lawyers who are opening a new solo or small firm practice, understanding the perils of working for free is one of the hardest but most important lessons to learn.

Tom Wallerstein

The joke also is helpful because many clients appreciate a lawyer who is self-deprecating and doesn’t take himself too seriously. I have found that acknowledging the negative stereotype of lawyers, and why the stereotypes justifiably exist, is helpful to gaining a client’s trust. Rather than tiptoe around the elephant in the room, I prefer to expressly acknowledge the profit incentive I have whenever I recommend a certain course of action. I like to think that gives me more credibility. “Yes, I am recommending a strategy that is going to cost a lot of money in legal fees over the next several months. Here’s why I believe that strategy is in your best interest….”

Although most sophisticated clients know better, others can’t help but distrust all lawyers as greedy con-artists. A lawyer who recognizes and appreciates this stereotype is better positioned to allay client fears by confronting them directly. Clients understandably worry that they’re going to get ripped off. I acknowledge that and explain to clients what steps they can take to ensure they don’t get overbilled by me or any other lawyer. Those steps only go so far, however, and ultimately the client has to trust the lawyer in what I call the “look you in the eye” moment, or moment of truth.

The joke’s phrase “how much justice” also invites a discussion about how justice is relative. Every litigation client wants to win, but they don’t always immediately understand that winning is relative. I find it helpful to talk to the client about what winning really looks like in the matter at hand. For a civil defendant, winning might mean a dismissal of the complaint with prejudice. Winning might mean a reasonable settlement. Winning might even mean a judgment for plaintiff, but for less than a certain amount or upon certain acceptable conditions. Winning might mean deferring resolution for a certain amount of time.

Finally, the joke is helpful in leading a discussion about how there often is more than one viable strategy for handling any given matter. The serious point of “how much justice can you afford” is that different strategies, and desired outcomes, require different budgets. The joke is funny because it obscures the relative nature of “justice.” In reality, it is appropriate to ask “how much do you want to spend” when considering the strategy and result you want to try to obtain.

Even obtaining the best case result — for example, a dismissal with prejudice — entails a cost in terms of time, energy and fees. Maybe you collect or maybe you pay. But since it costs a lot to win, and even more to lose, clients need to carefully consider their strategic options by carefully weighing their choices. We chuckle, but I find it helpful to ask, “how much justice can you afford?” Clients seem to appreciate it when I acknowledge that it might not make sense to win the case at a cost that exceeded the prospective liability. In other words, “we can win, but it would cost you more than it would cost you to settle.” Clients generally don’t like hearing that, but they do appreciate the candor.

I’ve explained before that I try

to work closely with our clients to understand their goals, their tolerance of risk, and their budget constraints. We urge our clients at all times to consider their exposure, risk of loss, and attorney fees they will incur to achieve their goals. Our case assessments necessarily consider these factors, as do our strategic recommendations.

Sometimes clients will respond to that by pushing back and insisting that they want to win “at any cost.” “Tell me the cost, I can pay,” they proclaim. To that, I usually joke “music to my ears!” Again, I hope that acknowledging my own economic interest helps build trust.

Rather than leaving no stone unturned and pursuing an undefined victory at any cost, client-centric firms can instead recognize that justice is relative, and always comes at a price. They can contrast their approach with a sometimes predictable Biglaw litigation model. Too often, firms follow a rather consistent litigation playbook. They insist that the first step in every case is always to gather and review every conceivably relevant document, often with a team of junior attorneys. They insist on propounding kitchen-sink discovery, obtaining and reviewing every conceivably relevant document from the adversary, again billing every step of the way.

Admittedly, especially in high stakes cases, this may well be the right approach. But not always. More creative firms and boutiques sometimes have more flexibility in designing litigation strategy. I’ve written before how they can sometimes capitalize on this by exploiting their adversary’s predictable litigation formula.

Attorney jokes will never go away, thankfully. As a profession, we certainly deserve them. But attorneys who are willing to view the world through the eyes of their clients can gain trust simply by asking, “how much justice can you afford?”

Remembering Why Lawyers Enjoy Being Lawyers

Yesterday I went and spent a few hours manning the “Attorney for the Day” desk at the local courthouse.  It is a program through the Birmingham Bar Association’s Volunteer Lawyers Program.  FYI If you are an attorney it is good program to volunteer for.

Things that struck me as I listen to people talk about their legal issues and court cases.  First that I enjoy I can use my knowledge and experience to help people and Second, that I kept wondering that some of the people who say they cannot afford to hire an attorney, when in reality the question is “How can they not afford to hire an attorney?”

There were two case that stuck out.  Each involved substantial amounts of money.  In one a small businessman was trying to collect a substantial debt he was owed.  He said that he could not afford to hire an attorney and that was why he had filed the case Pro Se.  I pointed out that if he lost the case then he would not be able to recover any of the money he was owed.  If he hired a collections attorney the attorney would take a percentage of the money, but that he would have a better chance in court than being Pro Se and that the attorney would help him actually collect the money once he had a judgment.  I believe that he will go get an attorney to help him with this case and future cases he would have.

The Second case was a gentleman who had been trying to collect on a judgment for several years.  I looked over his paperwork and it was clear that an experienced attorney would have collected the judgment within 6 months of the judgment or determined that there was no assets to recover from.

As attorneys we have to educate people on the importance of having an attorney when going into court and that the benefits usually out weigh the cost.

The Second thing that struck me was that I enjoy helping people.  Many of the problems that were presented to me during that time had simple answers that I could provide.  To see people relief on having a solution to their problem or being provided with a pathway to the solution of the problem reminds me why I became a lawyer.  To help people, to try to provide them with a solution.

It is good to be reminded why we became lawyers.

4th Amendment Blog – Not unreasonable for officer to ask “locomotion-related inquiries not strictly directed to the motorist’s conduct at the time of the stop”

During a traffic stop, it is not unreasonable for an officer to ask “locomotion-related inquiries not strictly directed to the motorist’s conduct at the time of the stop, such as ‘[the] motorist’s travel history and travel plans’ and ‘the driver’s authority to operate the vehicle .'” The officer had a drug dog, and it was not unreasonable to use the dog. “While Defendant may curse his bad luck to get stopped by a police officer who has a drug dog and who knows the constitutional limits of his authority, nothing about this stop was unreasonable.” United States v. Pratt, 2013 U.S. Dist. LEXIS 101906 (M.D. Tenn. July 22, 2013).

Vehicles on public roads are subjected to what is called the “Automobile Exception” which means that the police can search the vehicle under certain circumstances.

• Consent. If the driver or owner of the car consents to the search of the vehicle then the police can search the vehicle.

• Plain View Rule. If the police officer can see something that is illegal or leads him to believe there is illegal items in the car then he can began to explore what he sees.

• Searches made in connection with a legal arrest. If a motorist is arrested then what is done is called an inventory search of the vehicle and is allowed under the law.

• Exigent circumstances. If officer fear that important evidence is about to be destroyed he can search the car, or if he feels someone is in danger he can search the car.

• Probable cause. If an officer has reason to believe that a crime is or has been committed, he can search the car.  This can be from the driver acting nervous and also giving bad or confusing information or the smell of alcohol or drugs or description of the vehicle or person being similar to a report of criminal activity .

Do you Know your Rights?

People call me about a criminal case and state “Police didn’t read me my Rights”, thinking that means their case will be thrown out.  Unfortunately most people do not know that the police only have to warn you of your right to remain silent and that you can have a lawyer, if the interview is after you have been arrested or where you feel that you are in custody.  And if the police fail to do that, it only means that your statement can be thrown out of court.  That does not mean the case against you will be dismissed.

What are the rights a person has that has been accused of a crime?

a. Right to remain silent
b. Right to have an attorney present when interviewed by the police while in custody.
c. Right to for their house, car  or personal property searched without a warrant or pressing circumstances outline in the law.
d. Right not to be searched other than for weapons for the safety of the officer
e. Right for their phone and other electronic devices not to be searched without a warrant.
f. Right to not disclose their passwords and usernames to the police without a warrant.

The law is still developing regarding the expectation of privacy in the online world.  The police should  be required to get a warrant to get your emails, online activity, and search history from internet providers and companies, but that does not always happen.

We will address the law as it develops in the area of a person’s rights in the regards to their interaction with the police.

Know your rights, but most importantly EXERCISE THOSE RIGHTS.  Say to the officer I am not answering your questions without an attorney present, you cannot search my property without my attorney present.  Always be polite and respectful, but firm.

The back of my card that I hand out to my clients states “My attorney has told me not to talk to anyone about my case, to not answer any questions, and to not reply to accusations.  Call my attorney if you want to ask me questions, search me or my property, do any test, do any lineups, or any other I.D. procedures.  I do not agree to any of these things without my attorney present and do not waive any of my Constitutional Rights.”  I ask my clients to keep that card in their wallet and to pull it out when questioned by the police and hand it to the police officer.  Exercise your rights.

Know and Exercise your rights.

The Volokh Conspiracy – On Zimmerman “Provocation and Self-Defense”

Provocation and Self-Defense

 • July 16, 2013 12:15 am

One recurring comment I’ve heard on the Zimmerman case is that Zimmerman was in the wrong for following Martin in the first place, and therefore couldn’t use deadly force when Martin reacted violently in response (perhaps in what Martin perceived was self-defense). This is an interesting and complicated question, which Prof. Alafair Burke (Huffington Post) discusses in some detail; I thought I’d also discuss it, with some overlap with Prof. Burke’s analysis.

To begin with, it’s clear that the right of lethal self-defense is lost in some situations. If D criminally attacks V with a knife, V takes out a gun, and D stabs V, D can’t defend himself by saying “I was in reasonable fear of death or grave bodily harm.” That risk of injury happened because D was committing a serious crime in the first place.

But what if D does something that’s noncriminal, but nonetheless foreseeably triggers a violent reaction by V, and then D uses deadly force to protect himself against that reaction? Has D also lost the right to lethal self-defense, because he could have avoided the need for such deadly force by avoiding the earlier act — or because he more broadly “provoked” the occasion for such deadly force? (Note that this is a separate kind of provocation from that which reduces a murder charge to voluntary manslaughter; though the label is the same, the legal rules and consequences are completely different.)

Let’s consider a few scenarios:

1. D knows that V is insanely jealous, and has threatened to attack D for dating V’s ex-girlfriend. Nonetheless, D keeps dating her, and even appears with her in places where V might well see them. V attacks D in a way that threatens D’s life, and D shoots V.

2. D knows that V hates him, and that V is likely to attack D with deadly force when V sees him. (Maybe V is a rival gang member, or maybe V just hates D.) Nonetheless, D keeps going (legally armed) to a public place where he knows V periodically hangs out. V attacks D in a way that threatens D’s life, and D shoots V.

3. D, who is black, knows that there’s a race riot outside the house at which he is staying, and the mob had been baying for his blood before he ran into the house. But D goes (legally armed) onto the street, rather than staying in the house or escaping through a back alley. See Laney v. United States, 294 F. 412 (D.C. Cir. 1923). V, one of the white rioters, attacks D in a way that threatens D’s life, and D shoots V.

4. D goes to a brothel, where she knows her husband V is visiting a prostitute, and claims that “she went to this house to persuade her husband to leave there and return home with her.” The husband, however, who had in the past “threatened to kill her if she came to this house for him” and had “beaten her on several occasions,” attacks her in a way that threatens D’s life, and D shoots V. See Moore v. State, 160 S.W. 206 (Ark. 1913) (for whatever it’s worth, D and V in this case were both black).

5. D, “a 40-year old black woman, saw an elderly white man and woman sitting on a bench outside an apartment building and said to them, ‘Good morning. How are you?’ When the couple did not respond, she asked why they did not return her greeting. The woman, [V], said to appellant, ‘Get away from here you dirty nigger, you don’t belong here.’ Appellant responded with a racial slur and an obscene ‘mooning’ gesture and the two women wound up in a physical altercation. According to appellant and her witness, … [V] got up from the bench, approached appellant, and started swinging at her. In response, appellant stepped back and pushed [V]. [V] staggered back and then fell down on some shrubbery…. Within a half hour, [V] died of heart failure.” See Gibbs v. State, 789 So. 2d 443 (Fla. Ct. App. 2001) (a criminally negligent injury case rather than a murder case, but one in which the self-defense was nonetheless in play).

What should the law do in these situations? The general answer in most states, as best I can tell, is that the law tends to conclude that D loses his right to lethal self-defense on grounds of provocation only if he had the specific purpose of provoking V into threatening D with death or serious bodily injury, so that D would have an opportunity to kill or seriously injure V. If D simply knew that it was very likely that V would react violently, that is not enough.

Interestingly, the cases cited in items 3 and 4 are departures from this general rule. In Laney, the court held that Laney wasn’t entitled to a self-defense instruction because he knew that it was “almost inevitabl[e]” that a deadly confrontation would arise, and “had every reason to believe that his presence [on the street] would provoke trouble.” In Moore, the court seemed to go even further, taking the view that Moore wasn’t entitled to the instruction because she was “expecting trouble.” (The court also said she was “probably looking for [trouble],” but if it’s just a matter of probability, that should be a matter for the jury to decide; the court thus seemed to take the view that D’s “expecting trouble” when she enters a particular situation armed is sufficient to strip her of her right to use lethal force in self-defense if serious trouble does arise.)

But from the cases that I’ve read — and I’ve read quite a few — D.C. and Arkansas are outliers on this score, and usually the right to self-defense is lost only if D acted with the specific purpose to provoke a violent attack. The Model Penal Code takes this view as well.

Now on to Florida. Gibbs is a Florida precedent, and it was interpreting the Florida provocation statute, which has not been changed by the Stand Your Ground law:

The justification described in the preceding sections of this chapter is not available to a person who:

(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or

(2) Initially provokes the use of force against himself or herself, unless:

(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or

(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

Note that “provokes” here does not indicate whether D only loses his right to self-defense if he has the specific purpose of causing V to use force against D, or if it is enough if D acts in a way that he knows (or should know) is highly likely to cause V to use force against D. But Gibbs reversed D’s conviction, for the following reason (emphasis added):

The instruction stated that appellant could not defend herself with non-deadly force if she “initially provoked” the victim. By not limiting provocation to the use or threat of force, the court failed to make the jury aware that the word “provoked,” as used in the instruction, did not refer to mere words or conduct without force. Stated another way, the instruction given by the court eliminated the use of non-deadly force in self-defense if there was any provocation by the defendant — no matter how slight or subjective the provocation. By that standard, a mere insult could be deemed sufficient to prohibit defending oneself from an attacker.

In this case, appellant’s self-defense was based on testimony that the victim verbally attacked her and then aggressively approached and swung at her. According to the defense, it was only then that appellant pushed the victim and used some force against her. Because the instruction did not limit provocation to some force or threat of force, the instruction could have misled the jury to believe that appellant’s pointedly asking the victim why she failed to acknowledge her greeting and/or appellant’s racial retorts and obscene gestures were sufficient provocation to preclude appellant from defending herself from an attack by the victim.

It thus appears that the law in Florida is that the defendant loses his self-defense rights on “provocation” grounds only if he is involved in a “forcible felony” orprovokes the target by “force or threat of force.” (Gibbs apparently had no occasion to resolve the separate question of whether purpose to trigger forcible reaction or mere knowledge of a high likelihood of such reaction — or even something less — is required for “provocation.”) And, as Prof. Burke points out, it seems to have beenGibbs that led the trial court to not give the “provocation” instruction. Prof. Burke, a former prosecutor, opines that the denial of the provocation instruction “may have been the moment when Zimmerman got acquitted.”

All this is not a question of stand your ground vs. duty to retreat. The provocation limitation on self-defense rights, to my knowledge, exists in all states; it certainly exists in Florida. Conversely, even states that impose a duty to retreat generally apply the “provocation” limitation only in situations where the defendant had the purpose of triggering a serious attack by the target. There are some decisions, especially in Arkansas and D.C., that read the “provocation” limitation more broadly; but they seem to be the exception.

Provocation is a separate question from the duty to retreat. And if we are to talk about whether Zimmerman should have been convicted on the grounds that he shouldn’t have confronted Martin in the first place, and that he was more generally “looking for trouble” (see Moore and Laney), we should be talking about the provocation limitation and not the Stand Your Ground law.