Thursday, September 11, 2014

Oscar Pistorius Verdict: How Strange

If the Oscar Pistorius case is any indication, the criminal justice system in South Africa is strange—at least when compared to ours.

Photo by David Jones
South Africa doesn’t use juries. So, the double-amputee sprinter’s fate was up to one person, a former social worker and news reporter turned judge. Except, the guilt/innocence determination wasn’t entirely Thokozile Matilda Masipa’s. If the two assessors aiding “My Lady” had disagreed with her finding, they could have overturned it. But even had that happened, sentencing would have still been up to Masipa. (“Oscar Pistorius' Trailblazing Judge Has Reputation for Toughness.”)

To someone trained in American law, it’s all somewhat convoluted. Like the verdict.

Not Guilty

After a six-month-long trial that involved approximately three months in breaks—including a month-plus delay for Pistorius to undergo court-ordered psychiatric testingJudge Masipa showed her hand. On Thursday, she found that the government hadn’t established that Pistorius premeditated Reeva Steenkamp’s death or that he intended to kill her at all. That means that Pistorius is off the hook for South Africa’s version of first degree murder.

Judge Masipa also found that Pistorius wasn’t guilty of what they call dolus eventualis murder. As The Independent explains, “dolus eventualis means it is enough to find someone guilty of murder if the perpetrator objectively foresees the possibility of his or her act causing death and persists regardless of the consequences.” 

That sounds an awful lot like an American variation of second degree murder that goes by monikers like implied malice murder, “abandoned and malignant heart” murder, and reckless murder.  In essence, it’s an unintentional killing where a defendant is aware of, but consciously disregards, a risk that takes another person’s life. (For infamous case examples, see Murder vs. Manslaughter: State of Mind.) 

No one disputes that Oscar Pistorius fired four bullets into a closed bathroom door, thereby killing Steenkamp. He claimed—and the judge believed that—when he unloaded, he thought an intruder was in the bathroom. But, as Stephen Tuson, an adjunct professor at the University of the Witwatersrand in Johannesburg, queried, “How can you shoot four bullets through a door and not foresee” the death of the person behind it?

Masipa’s answer? “Clearly he did not subjectively foresee this as a possibility that he would kill the person behind the door, let alone the deceased, as he thought she was in the bedroom.”

Unforeseen Consequences

It might well be that dolus eventualis murder wasn’t the right charge, and that Pistorius was nevertheless criminally responsible for Steenkamp’s death. Indeed, Judge Masipa indicated on Thursday that she’ll complete her findings by entering a guilty verdict for culpable homicide, the rough South African equivalent to U.S. manslaughter.

Our manslaughter has two branches. Voluntary manslaughter can involve an intentional killing where the defendant acted in the heat of passion, because of some reasonable provocation. And involuntary manslaughter often refers to an unintentional homicide caused by criminally negligent or reckless conduct.

Masipa refered to the sprinter’s conduct as clearly negligent. She mentioned the alternatives that were available to Pistorius in those fateful moments, like screaming from the balcony or calling security or the police. In short, she found that it was unreasonable to fire four rounds at the bathroom.

But even if dolus eventualis isn’t the appropriate verdict—if something like manslaughter is more fitting—reconciling Judge Masipa’s words with the facts is a challenge. Someone intentionally fires four rounds into a bathroom that someone else is in. Three of those shots hit the occupant; at least one of them kills her. But the judge says that the person doing the shooting didn’t foresee the possibility that his actions would kill the occupant?

How strange.

Tuesday, September 9, 2014

Ray Rice and Evolving Domestic Violence Policy

Photo by Keith Allison
As former NFL running back Ray Rice has recently learned, the public takes domestic violence very seriously these days. Folks were less than thrilled about the NFL suspending the one-time star for only two games for assaulting his then-fiancée/now-wife and dragging her, unconscious, out of an Atlantic City casino elevator. And they didn’t appreciate the Baltimore Ravens, Rice’s employer, not doing much at all in response to the February 15 incident.

But now that footage of the actual in-elevator assault is out, the Ravens have cut Rice, a former Pro-Bowler coming off a poor 2013 season. They’re even offering fans some sort of exchange for handing back their “Rice 27” jerseys. And the NFL went ahead and made the suspension indefinite. New England Patriots owner Robert Kraft went as far as saying of the 27-year-old, “I don’t think he’ll play another NFL game.”

But football-related punishment aside, there’s a telling, overlooked part to the Ray Rice story. Back on the night of the altercation, the police arrested the player’s now wife. They arrested her even though the video establishes she was the victim of, at a minimum, a brutal left-handed punch. (Mrs. Rice appears not to have been prosecuted; her husband, as a first-time offender, received diversion.)

New Mandate

Until relatively recently, police departments and prosecutors looked the other way when there was violence between spouses or significant others. But the kind of outrage generated by the Rice case–if not quite as immediate and fierce—eventually started to shape law and policy.

Today, many states make arrest mandatory where there are allegations of domestic violence. For example, in New Jersey, when someone claims to be a victim of domestic violence and the responding officer has probable cause to believe that such violence has occurred, the officer must arrest the alleged attacker if there are signs of injury or it appears that a weapon was involved. (For more detail, see this coverage of state-by-state domestic violence laws.)

The mandatory-arrest policy may not explain why Atlantic City police took Janay Palmer (now Rice) into custody after she regained consciousness on that winter night.  But her arrest is an indication of just how serious domestic abuse accusations are nowadays.

The Atlantic City Police Department issued a release after the arrests, reporting that the surveillance footage indicated “that both Ric[e] and Palmer struck each other with their hands.” Because there was at least some kind of indication of mutual violence, the authorities took the common approach of arresting both parties. (Somewhat amazingly, the release indicates that arrest was discretionary, rather than mandatory, even for Rice—it mentions that “no injuries were reported by either party.”)

Handle With Care

Despite the media frenzy over the Ray Rice story, domestic violence accusations are anything but uncommon, even when it comes to people in the public eye—or the NFL. Just three days after Commissioner Roger Goodell announced the league’s new, Rice-inspired punishment policy for domestic abusers, San Jose police arrested 49ers defensive tackle Ray McDonald. The allegation is that he struck his pregnant girlfriend.

If there’s any video in the McDonald case, we don’t yet know about it. It appears as though his case is like so many others—and so unlike the Rice case—in that regard.

But, video or not, the NFL now knows that police departments aren’t the only ones who must handle domestic violence cases with care.

Thursday, September 4, 2014

“Hot Car Death” Charges Explained

A grand jury has indicted Justin Ross Harris in the case the media refers to simply as “hot car death.” The broad facts are that Harris, employed as a web developer for Home Depot in Georgia, left his son Cooper in the car for seven hours while at work. While almost-two-year-old Cooper languished, prosecutors say, Harris sexted several women and even sent one—an underage girl, actually—a photo of his erect penis. (“Dad indicted on murder charges in son’s hot car death.”)

There are eight charges in the indictment against Harris for what are really two distinct acts. The first is causing the death of his child. The second act—or set of acts—relate to the sexting accusations.

Murder and Cruelty

The Cobb County District Attorney brought five charges against Harris for Cooper’s death. The most serious is malice murder, but there are also counts of felony murder and cruelty to children.

In Georgia, murder occurs when someone kills another with either “express” or “implied” malice. Express malice essentially denotes an intentional killing.

Several outlets have reported that the malice murder charge means that prosecutors must prove that Ross intended or premeditated his son’s death. But the relevant count in the indictment—which says simply that Ross acted with “malice aforethought”—indicates that they haven’t necessarily alleged as much. That’s because the “malice” in malice murder can be implied. In other words, killing someone, not necessarily intentionally, but through a “reckless disregard for human life,” fits the bill. (For more on a related distinction, including infamous real-life examples, see Murder vs. Manslaughter: State of Mind.)

The felony murder counts are really lesser variations of the malice murder charge. In essence, they allege that Ross caused his son’s death by committing either malicious or criminally negligent child cruelty. And the child cruelty charges are basically less substantial versions of the felony murder counts. 

In short, each of the first five charges relates to the single act of leaving the boy in a hot car for seven hours. If a jury were to convict Ross of all these offenses, they would “merge,” meaning that the judge would have to sentence on only the most serious one. But that one carries a maximum penalty of death. (GA ST §§ 16-5-1, 16-5-70.)

Sexting Crimes

The second group of charges against Harris relates to the time up to and including the day of Cooper’s death: one count of criminal attempt to commit sexual exploitation of children and two counts of dissemination of harmful materials to minors. They have to do with Ross allegedly asking a minor girl to provide him with a lewd image of herself, sending the same girl “detailed verbal descriptions and narrative accounts of sexual excitement and sexual conduct,” and sending her a photo of “uncovered male genitals in a discernibly turgid state.”

Some legal minds have reasonably theorized that the prosecution wanted those charges lumped in with the others so as to increase the chances that a jury would convict on the more weighty accusations. (GA ST §§ 16-12-100, 16-12-103; “Dad in Georgia Hot Car Death Charged With Murder.”)

What’s Next?

It’s not yet clear whether the prosecution will get the sext-related charges in front of the same jurors who would decide the other counts. And the District Attorney hasn’t announced whether this is going to be a death penalty case. Not only that, but DA Vic Reynolds seems to have left open the possibility of charging Harris’s wife as somehow complicit in young Cooper’s death. Reynolds commented that “whether (the investigation) leads to anyone else remains to be seen.”

Wednesday, September 3, 2014

Scalia’s Example of Someone Deserving Death Exonerated

Supreme Court Justice Antonin Scalia once wrote about the case of half-brothers Henry Lee McCollum and Leon Brown. In a 1994 concurring opinion, he held up McCollums alleged acts as behavior worthy of capital punishment. It was, he explained, “the case of the 11–year–old girl raped by four men and then killed by stuffing her panties down her throat.” He exclaimed, “How enviable a quiet death by lethal injection compared with that!” (Callins v. Collins, 510 U.S. 1141 (1994).)

Some 20 years later (31 years after the crime), McCollum and Brown, each at one point sentenced to death, are free. That’s because they didn’t commit the heinous offense that Scalia described. The flimsy case against the then boys—ages 19 and 15—had rested squarely on rumor and false confession.

False Reports

The police scooped up McCollum and Brown in a small North Carolina town on the night of September 28, 1983. A local teen had suggested that the mentally disabled half-brothers had something to do with Sabrina Buie’s death. (“DNA Evidence Clears Two Men in 1983 Murder.”)

Though there was never any physical evidence against the boys, there were confessions. McCollum cracked after “five hours of questioning with no lawyer present and with his mother weeping in the hallway.” (“DNA Evidence...”) He gave in amidst the shouting because he just wanted to go home. Then, confronted with his older brother’s confession and threats of execution, Brown also falsely confessed. (The “four men” Scalia referenced came from McCollum’s confession; prosecutors never went after the other two attackers, suggesting a pick-and-choose approach to the youngster’s tale.)

But exonerating evidence would finally come by way of a cigarette butt from the scene of the crime. On it was DNA that matched not McCollum or Brown, but a man who lived nearby and is currently in prison for life for a rape and murder that occurred weeks after the Buie tragedy. So, with nothing other than highly questionable words on the side of guilt, on Tuesday current Robeson County District Attorney Johnson Britt implicitly conceded innocence.


At the time of Tuesday’s announcement that a local judge had vacated the brothers convictions and ordered their release, Brown was in prison on a sentence that had been reduced to life in prison. But McCollum was still on death row, explaining why so many have seized upon Scalia’s comments.

To be fair to Scalia, the outspoken Associate Justice didn’t name McCollum or Brown as the perpetrators of what all can agree was an atrocity. He would surely argue that if not one of them, whoever raped and killed Sabrina Buie deserves death. And there would be plenty who agree.

But if there’s one place where those who support capital punishment and those against it align, it’s the area of wrongful convictions. No one wants to see innocent people imprisoned for life, and no one wants to see them executed. The obvious problem, of course, is that only one of those two sentences can be at all undone.

Thursday, August 28, 2014

Clamor for Police Cameras

There’s no video of the confrontation between Ferguson officer Darren Wilson and 18-year-old Michael Brown—at least not any recorded by the police. Police Chief Thomas Jackson reported that his department has four cameras, two for dashboards and two to been worn on uniforms. He said that no one had installed the equipment as of the August 9 shooting because of a lack of funding.

Even had they been installed, these cameras might not have provided a complete picture of exactly what transpired between Wilson, Brown, and witness Dorian Johnson. A body camera, for example, might not have been pointed in the perfect direction or covered a wide enough field. Or maybe it wouldnt have been rolling.

No Oversight?

Even in those places where law enforcement currently employs body cameras, there appears to a remarkable lack of protocol as to their use. Stanford Professor David Sklansky recently told the Daily Journal that there aren’t any legal regulations about the storing and use of data from body cams. Writer Kylie Reynolds observes, “Without any laws, questions abound about when officers should turn on or off their cameras.” (“Police body cameras fuel privacy debate,” Daily Journal, Aug. 21, 2014 (partial reprint here).)

But it seems as though, if there’s any problem with the deployment of these recording devices, it’s that departments are capturing too much. Reynolds quotes Electronic Frontier Foundation senior staff attorney Jennifer Lynch, who says that agencies generally have the cameras rolling “100 percent of the time.”

Private Matters

As Reynolds reports, there are appropriate concerns about privacy in officer encounters, particularly when the interaction occurs inside a home or there are folks nearby who have nothing to do with issue at hand. And there’s legitimate unease about how long departments store video data, whom within their departments they let see it, and whether they release it to the public. One gets Orwellian chills when imagining hordes of officers wandering the streets, always recording us and never deleting the footage.

But it sure seems that—with proper regulations in place—police cameras could at least help the truth-finding process.

And they might even save taxpayers some money, allowing for more efficient internal investigations and reducing the amount of police-misconduct litigation. Several outlets report that, in places where patrol officers now wear cameras, there’s been a staggering reduction in complaints against police. Not only that, but cameras seem to incline officers to reserve their use of force for appropriate circumstances. Take the results in San Diego, for example.

Call for Change

It’s no surprise that, in the midst of the Michael Brown controversy, more than 148,000 people have signed a White House petition calling for a law on body-camera use. Because it surpassed the 100,000-signature marker, the administration has to respond to the request for the “Michael Brown law,” which would require nearly all police to wear cameras.

Few petition signers would argue that dash and body cams are an elixir. But, as long as legislatures and courts were to keep a close eye on the use of this kind of equipment, some good might result.

Tuesday, August 26, 2014

California Supreme Court: Don't Be Silent If You Want to Be Silent

When last we considered the contours of the privilege against self-incrimination in this space, it was on account of a startling holding by the United States Supreme Court. (“Deafening Silence.”) The Court had just issued a June, 2013 opinion allowing the government to prosecute suspects with silence. Specifically, the decision in Salinas v. Texas established what happens when:
  • an officer interrogates a suspect who isn’t yet under arrest
  • the suspect hasn’t explicitly invoked the right to silence, and
  • the suspect doesn’t respond.
In those circumstances, the Court said, the prosecution can present evidence of the defendant’s saying nothing and argue to the jury that it’s evidence of guilt.

Peeling Back

Perhaps it was naïve not to expect a further peel-back of the Fifth Amendment’s self-incrimination clause, but it seemed like there wasn’t much more a court could do. No one would dare say that a suspect who is under arrest and hasn’t heard the Miranda warning has to say some set of magic words in order to invoke the right to silence. Right? Well…

This month the California Supreme Court took Salinas v. Texas to its illogical extreme, holding that post-arrest, pre-Miranda-warning silence can be used against a suspect whom the police haven’t interrogated. (People v. Tom, S202107 (Aug. 14, 2014).) The onus is on the suspect to prevent this use by stating an unequivocal intention to invoke the privilege against self-incrimination. (For the limitations on the California holding, see Can the government use arrestees' silence against them?)

In the case before the court, defendant Richard Tom had been involved in a fatal car accident. The prosecution alleged but couldn’t prove that he was under the influence at the time of the collision. Neither before nor after his arrest did Tom ask about the welfare of those in the vehicle he hit. The prosecution presented this fact to the jury and argued that Tom’s seeming lack of concern about the victims proved his guilt. To the prosecution, he either knew he had committed a crime and therefore didn’t want to talk about it or was “too drunk to care.”

A jury convicted Tom of vehicular manslaughter with gross negligence involving great bodily injury. The judge sentenced him to seven years in prison.

Ivory Towers

The majority of California’s high court saw no problem with the deployment of Tom’s silence in the above manner. The dissenters, however, had something to say. And Justice Goodwin Liu served as the voice of reason. (The decision was 4-3.)

Liu offered more common sense than apparently suited the majority, rightly observing that “often the best way not to incriminate oneself is to say nothing.” 

Under the majority’s opinion, saying nothing will no longer cut it. Instead, “a suspect in custody cannot later claim the protection of the Fifth Amendment unless he breaks his silence and ‘clearly invoke[s]’ the privilege in a manner that ‘a reasonable police officer in the circumstances would understand.’”

Justice Liu commented of this holding, “No one disputes that if the police in this case had given Miranda warnings to defendant Richard Tom immediately upon placing him in custody, the prosecutor could not have relied on his postarrest silence to show consciousness of guilt regardless of whether he clearly invoked the Fifth Amendment privilege.”

Why, he asked, should it matter that the officers only gave Tom the warning later? And doesn’t the new rule develop “an incentive for arresting officers to delay interrogation in order to create an intervening ‘silence’ that could then be used against the defendant”?

The majority—with a straight face—responded to Justice Liu’s queries by saying the suspect should just invoke the privilege. Of course, this kind of ivory-tower approach does little for those defendants who aren’t completely up to speed on constitutional law. And even those who are might not know exactly what to do. Liu remarked:

[T]e court does not explain how its rule is supposed to work in practice. As Tom sat in the back seat of the patrol car, he was not being questioned by the police. To whom and how should he have invoked the Fifth Amendment privilege? Was he required to approach an officer on his own initiative and blurt out, “I don‘t want to talk? Would it have been enough for Tom to say just that, without mentioning the Fifth Amendment or otherwise indicating he didn‘t want to incriminate himself? And if so, how would that have been materially different from simply remaining silent? Moreover, why should it matter whether Tom invoked the privilege to a police officer? What purpose would that have served, since no police officer was trying to question him?


Though Justice Liu fought the losing battle in this case, the law on post-arrest, pre-­Miranda silence hasn’t actually been written—at least not in stone.

We now have different law in different places. Neither the federal circuit courts nor the courts from state to state agree on what the government can do in its initial presentation of evidence to a jury. Some say the Fifth Amendment prohibits prosecutors from offering evidence of post-arrest, pre-Miranda silence. Others, like the California Supreme Court, say it doesn’t.

And the California Supremes’ Tom decision doesn’t even create uniform law in cases arising out of the Golden State. That’s because the U.S. Ninth Circuit Court of Appeals, which hears federal cases occurring in California, has taken the pro-defendant point of view.

So, as we had to do when it came to cellphone searches, we’ll just have to wait. Only the U.S. Supreme Court can resolve the disparity. But if last year’s Salinas decision is any indication, the absurd will become the law of all the land.

Tuesday, August 19, 2014

What the Accounts of Michael Brown’s Shooting Mean in Legal Terms

To the extent that there’s any agreement about the facts of Michael Brown’s shooting, it appears to be that: 
  • Officer Darren Wilson ordered Michael Brown and his friend out of the middle of the street
  • there was some kind of struggle in or around Officer Wilson’s car
  • Wilson’s gun discharged, and
  • Wilson fired several more shots after Brown was some distance from the car.
Of course, witnesses and the police are sharply divided over the facts that determine whether there was a legal justification for Wilson’s use of force. One of the most crucial points is whether the officer fired as Brown tried to escape.

Fleeing Suspects and Deadly Force

Officers are entitled to use at least some force on fleeing offenders. But the circumstances in which they can use deadly force against them are quite limited. (The United States Supreme Court has hesitated to say what, exactly, constitutes deadly force, but shooting to kill surely fits the bill. (Scott v. Harris, 550 U.S. 372 (2007).))

In Tennessee v. Garner, the U.S. Supreme Court held that an officer may use deadly force to stop an unarmed and fleeing felony suspect only where: 
  • such force is necessary to prevent escape, and 
  • the officer has probable cause to believe that the suspect poses a significant threat of serious harm to the officer or others.
The Court said that an officer can use deadly force if it’s needed to thwart escape and it appears that the suspect has committed a crime involving serious harm or the threat of it. But the Court held that an officer in this situation must provide some kind of warning “where feasible.” (Tennessee v. Garner, 471 U.S. 1 (1985).)

Witnesses Diverge

Dorian Johnson, who was with Michael Brown as events unfolded, says that Wilson started the physical encounter. According to Johnson, the officer grabbed Brown by the neck from a patrol car and pulled him toward the vehicle. Brown tried to pull free; the officer fired a shot. Brown began to run away. The officer got out of his car, pursued Brown, and fired a second shot that hit the young man. Brown turned around, hands in the air. He began to plea with the officer, who shot him dead. (“What we know about Michael Brown’s shooting.”)

Witness Tiffany Mitchell says she saw Brown and the officer “tussling through the window,” with Brown trying to get away. Mitchell essentially corroborates Johnson’s account from this point on.

But a radio-show caller who claims to have Officer Wilson’s version of events says that Wilson received word of a moments-earlier strong-arm robbery. She says he got this report after he had ordered the two young men out of the middle of the street. This was just before things got physical. He was suspicious of the two young men at least in part because they appeared to have cigars, cigars being the product of the reported robbery.   

The caller’s account aligns with the police’s. The authorities say that Officer Wilson tried to get out of his car, but that the physically imposing Brown pushed him back in. Then Brown assaulted the officer and tried to get hold of the officer’s weapon. (“What we know....”)

The caller takes it from there, reporting that the gun went off once during the struggle. Her account, which a “source with detailed knowledge of the investigation” confirmed as a match of Wilson’s, has Wilson then pursuing Brown and Johnson. Wilson orders the two to freeze, they turn around, and Brown taunts Wilson before running at him at full speed. Then Wilson unloads all those shots. The caller says that, according to Wilson, “ballistics will prove [Brown] wasn’t shot in the back like the other people are saying. . . .”

Justified or Not?

If you believe Johnson and Mitchell, Officer Wilson fired a shot at a fleeing Michael Brown. Brown hadn’t committed a crime against Wilson involving serious injury. If anything, he committed an offense along the lines of resisting arrest, but without using force against the officer: He was just trying to get away.

According to these two witnesses, there was no way the officer could have reasonably believed that the young man posed a significant threat of serious harm to anyone as he began to flee. Their story, if true, would mean that Wilson was never entitled to shoot at Brown—not from the car, not as Brown ran, and certainly not after Brown had surrendered.

Under the police and the caller’s rendition, Brown assaulted Wilson. Wilson knew that Brown had committed a crime involving serious injury or a threat thereof, that being either the officer assault or the earlier robbery. Even if Brown had been running away as Wilson first fired, shooting would have been the only way to stop the escape attempt. And Wilson couldn’t have feasibly warned Brown any more than he did. So, at least under a literal interpretation of Tennessee v. Garner, Wilson’s shooting once at an escaping Brown would have been justified. And all of the subsequent shots would have been in self-defense.

More Coming

With news that Eric Holder is heading to Ferguson and the announcement that a Missouri grand jury is convening on Wednesday, we’ll be hearing a lot more about what happened between Darren Wilson and Michael Brown. Wilson could face parallel sets of criminal charges from the state and federal governments, not to mention civil liability.

Much of what happens will turn on when, exactly, he first shot at Michael Brown.