Criminal Law | Le·gal In·sur·rec·tion - Part 9
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Posted by Andrew Branca on May 18, 2016 21 Comments
The defense in the “Freddie Gray” trial of Officer Edward Nero rested today, the trial’s fifth day. Closing arguments are anticipated tomorrow, and trial Judge Barry Williams has announced that he expects to return a verdict on Monday, May 23. There hasn’t been much substantive reporting on the defense’s case the last two days, and of course there aren’t cameras in Maryland courtrooms, but the following is based on live-“tweeting” of the trial by the Baltimore Sun.

Trial Day #4

The defense primarily brought as witnesses police officers who either were somehow involved or a witness to Gray’s arrest and transport, who trained Officer Nero, or who otherwise are experts on police procedure.

Posted by Andrew Branca on May 17, 2016 39 Comments
First, my apologies for not getting this post up last night--I'm in the process of riding the motorcycle to the NRA Annual Meeting in Louisville, and various delays just pushed last night's arrival to too late an hour. Yesterday the State presented the remainder of its case against Officer Edward Nero, and rested. The prosecution's case turns out to be just as weak and ridiculous as every reasonable person has long since perceived.  In essence, the prosecution's theory of criminal liability for Nero rests on the fact that when his superior officer, Lieutenant Brian Rice, radioed for assistance in chasing down a fleeing Freddie Gray, Nero complied with that request without first making an independent evaluation of whether reasonable suspicion existed for the stop or probable cause for the arrest. Of course, such automatic good faith compliance with fellow officers in a pursuit and arrest is precisely what police are trained and expected to do.  If the officer requesting assistance is later unable to articulate reasonable suspicion or probable cause, that's on the initiating officers, not on those who come to that officer's assistance in good faith.  The notion that the assisting officers should face years in prison for such good faith conduct is utter madness.

Posted by Mike LaChance on May 15, 2016 27 Comments
Sexual consent laws on college campuses are already reaching absurd levels, but if the American Law Institute has its way and loosens the concepts of consent, it will easier to accuse participants of crimes. Stuart Taylor Jr. writes at Real Clear Politics:
Legal Group Weighs Radical Expansion of Sex Crimes Imagine the following case: Two recent college grads meet in a bar, talk, begin kissing, and go to her apartment. After a little more talking, they resume kissing there. He undresses her and initiates sexual intercourse. She neither objects nor resists. He leaves, and they have no further contact. A month later, she files a criminal complaint with police, complaining that this was rape because she never expressed verbal consent and was physically passive.

Posted by Andrew Branca on May 10, 2016 18 Comments
I know many of you have been wondering where the heck I've run off to from the pages of Legal Insurrection, so I want to immediately dispel the most common rumor:  No, Professor Jacobson and I have not broken up. :-) More seriously, the reason for my absence has been that I've been hard at work finishing the thoroughly updated newest edition of my book, "The Law of Self Defense, 3rd Edition," which I'm proud to announce published last week.  Further, I learned this morning that we've already achieved the number one position in Criminal Law new releases at Amazon.com, at that we're #6 in the Criminal Law category overall. And today we also became #1 in the Hunting & Shooting category at Amazon.

Posted by Andrew Branca on May 08, 2016 57 Comments
The second of the Freddie Gray trials is scheduled to being this Wednesday, May 11, this time of Police Officer Edward Nero, one of the three officers involved in Freddie Gray's initial stop and arrest.  Nero was charged with second-degree assault, two counts of misconduct in office, and reckless endangerment. Nero is being tried on charges of second-degree assault, two counts of misconduct in office and reckless endangerment. All the parties involved remain under a gag order imposed by trial Judge Barry Williams (transparency, much?). Nevertheless, news reports are indicating that the prosecution has essentially conceded that they're simply making up the legal theory under which they are bringing Nero's prosecution. The Baltimore Sun uses the phrase "novel legal theory" to describe the State Attorney Marilyn Mosby's prosecution of Nero, which is simply a more polite way of saying "they're making up the law as they go along."

Posted by Mike LaChance on April 21, 2016 14 Comments
Anders Breivik, the mass murderer who killed 77 people during a rampage in 2011, has successfully sued the government of Norway for violating his civil rights by keeping him in solitary confinement and searching him. CNN reported:
Mass killer Anders Breivik's human rights breached in prison, court rules Norwegian mass murderer Anders Behring Breivik has won part of his lawsuit against the state over his solitary confinement in a high-security prison, a court announced Wednesday. The Oslo district court found the 37-year-old's treatment in prison violated Article 3 of the European Convention on Human Rights, prohibiting "inhuman or degrading treatment," and ruled that his conditions must be eased.

Posted by William A. Jacobson on April 07, 2016 26 Comments
The Black Lives Matter movement is angry with Hillary Clinton over Hillary's use of the term "Superpredators" in the 1990s to describe young black male criminals. That term was an integral part of selling the public on tougher criminal sentencing that BLM blames for the current high rates of incarceration for blacks. We covered the issue when a BLM protester confronted her at a fundraiser in late February, Hillary apologizes for stigmatizing generations of young black men as “superpredators”:
It was a chilling speech in 1996. Speaking in favor of a new crime bill, Hillary Clinton used the term “superpredator” to describe young, mostly black, men who were residual criminals. While the term was not literally limited to blacks, it came to signify and justify the mass incarceration of young black men under harsh sentencing laws:

Posted by William A. Jacobson on April 05, 2016 17 Comments
To those of us of a certain generation, who grew up in the NY City area, the name Kitty Genovese brings chills to the spine. One of my first memories, when I must have been about 5 (I can place the age mostly because of where we were living at the time) was hearing of some woman strangled. I don't recall the name of the women, and probably was not told by my parents, but given the timeline, that woman likely was Kitty Genovese. This March 27, 1964 NY Times report tells the story, 37 Who Saw Murder Didn't Call the Police:
For more than half an hour 38 respectable, law‐abiding cit­izens in Queens watched a killer stalk and stab a woman in three separate attacks in Kew Gardens.

Posted by Mike LaChance on April 01, 2016 15 Comments
A young woman who was pepper sprayed at a Trump rally in Wisconsin this week is facing charges because video from the incident shows she punched an older man in the face. Some liberal media outlets have been advancing a false narrative that she was sexually assaulted. Professor Jacobson addressed this issue in a prior post. The Hill reported the police recommendation:
Police recommend charges for teen pepper-sprayed outside Trump rally The 15-year-old pepper sprayed at a Donald Trump rally earlier this week may face charges of disorderly conduct for allegedly punching a man in an altercation captured on video.

Posted by William A. Jacobson on February 26, 2016 14 Comments
It was a chilling speech in 1996. Speaking in favor of a new crime bill, Hillary Clinton used the term "superpredator" to describe young, mostly black, men who were residual criminals. While the term was not literally limited to blacks, it came to signify and justify the mass incarceration of young black men under harsh sentencing laws:
“They are not just gangs of kids anymore. They are often the kinds of kids that are called ‘superpredators.’ No conscience, no empathy. We can talk about why they ended up that way, but first we have to bring them to heel.”

Posted by Mike LaChance on January 05, 2016 13 Comments
The city of Baltimore reached a grim milestone in 2015 by racking up more homicides in one year than ever before. Kevin Rector reported at The Baltimore Sun:
Deadliest year in Baltimore history ends with 344 homicides Blood was shed in Baltimore at an unprecedented pace in 2015, with mostly young, black men shot to death in a near-daily crush of violence. On a per-capita basis, the year was the deadliest ever in the city. The year's tally of 344 homicides was second only to the record 353 in 1993, when Baltimore had about 100,000 more residents. The killings were on pace with recent years in the early months of 2015 but skyrocketed after the unrest and rioting of late April. In five of the next eight months, killings topped 30 or 40 a month.

Posted by Mike LaChance on January 03, 2016 36 Comments
Protesters have taken over a small federal building in Oregon and some of them are armed. One of them is Ammon Bundy, son of rancher Cliven Bundy who was in the news last year for clashing with federal authorities over land use. The reason for the protest seems to be two-fold. The situation which set off the protest was the prosecution of a pair of father and son ranchers named Hammond. The Hammonds are not part of the protest however and are expected to surrender themselves to authorities Monday for separate charges. The second aspect of the protest is a grievance over the federal government taking over land that used to be owned by ranchers.

Posted by Andrew Branca on November 25, 2015 180 Comments
About 13 months ago, on October 20, 2014, Laquan McDonald, a 17-year-old 180-pound black male who was non-compliant with police orders and threatening Chicago police officers with a knife, was shot and killed by officer Jason Van Dyke, a white man. Yesterday Chicago authorities, under orders from a judge, finally released some dash cam footage of the shooting. Concurrent with that impending release, prosecutors arrested Van Dyke and charged him with first degree murder. He is currently being denied bail. Here's the relevant portion of the police dash cam video that captured that shooting:

Posted by Andrew Branca on November 21, 2015 25 Comments
This past Monday we wrote about the start of the re-trial of retired firefighter Raul Rodriguez who was previously convicted of murder and sentenced to 40 years in jail after shooting a neighbor over a dispute about the neighbor's noisy party. Rodriquez had claimed self-defense justification for the killing.  That prior post can be found here: Retrial Begins for Firefighter Who Selfied “Stand-Your-Ground” That re-trial ended yesterday with the jury returning a verdict of guilty of murder after three hours of deliberation, reports the Houston Chronicle. Rodriquez first murder conviction in this case was overturned because of a somewhat subtle error in the jury instructions on self-defense, as covered in some detail in a post last December, New Trial for Man Who Video Recorded Own “Self-Defense” Shooting.   No one knew, of course, whether the mistaken jury instruction had led the first jury astray and resulted in an improper guilty verdict, but a defendant is entitled to correct jury instructions and so a re-trial was ordered on appeal. This second conviction seems completely unrelated to the concerns surrounding the first--an issue of the timing of when Rodriquez may have openly displayed his concealed carry pistol--but instead focuses strictly on the issue of provocation.
"This case is about provocation, pure and simple," prosecutor Kelli Johnson told jurors in closing arguments earlier in the day. "The law doesn't allow you to create a situation and then claim self-defense."

Posted by Andrew Branca on November 20, 2015 9 Comments
NOTE: This post has one correction and one clarification, as noted below. One of Florida's more interesting laws is the so-called "10-20-Life" statute, properly cited as §775.087 Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence.  In a nutshell, §775.087 provides, among other things, for mandatory minimum sentences for the possession or use of a firearm while committing one of several enumerated violent crimes.  It appears likely now that some substantial changes will be made to §775.087, particularly in the context of self-defense, on the basis of a bill moving through the Florida Senate.  (The PDF of the proposed revised bill, currently named SB 228, is embedded at the bottom of this post.) §775.087 has, of course, long been a target for groups who oppose mandatory minimum sentencing as a matter of policy.  More interestingly, it has also become a target for the self-defense advocacy community, who believe the statute has been used inappropriately against people who were merely acting in self-defense. In effect, the statute lists 18 various crimes, and then establishes mandatory minimum sentences if a person convicted of one of those crimes was either in possession of or discharged a firearm while committing the underlying crime:

§775.087(2)(a)(1): Possession of firearm = 10 year mandatory minimum.

§775.087(2)(a)(2): Discharge of firearm = 20 year mandatory minimum.

§775.087(2)(a)(3): Discharge causing death or great bodily harm = 25 to life mandatory minimum.

Note that each of those mandatory minimum sentences is to run consecutively with (on top of) sentencing for the underlying crime.  Thus it's actually possible to receive a longer sentence for the "10-20-Life" portion of the offense than for the underlying offense itself. CORRECTION: I am advised by Florida public defender (appellate division) Steven Gosney that the §778.087 mandatory minimum "bumps up" the sentence for the underlying criminal charge, it is not in addition to that underlying sentence. So an aggravated assault sentence of 5 years, in which a firearm was discharged, would under §778.087 be increased to a total of 20 years; it would not end up as a combination of 5 years for the underlying charge and an additional 20 years for §778.087.

Posted by Andrew Branca on November 16, 2015 32 Comments
A re-trial begins this week in Houston for retired firefighter Raul Rodriguez who was previously convicted of murder and sentenced to 40 years in jail, reports the Houston Chronicle.  Rodriquez had unsuccessfully argued self-defense at trial. The notable oddity of this case was the fact that Rodriguez had videotaped himself rather bizarrely confronting loudly partying neighbors. Rodriguez would ultimately shoot and kill one of those neighbors, Kelly Danaher. I first wrote about this case back in December of 2014, after the appellate court ruled that Rodriguez was entitled to a re-trial: "New Trial for Man Who Video Recorded Own 'Self-Defense' Shooting." The grounds for ordering a re-trial was an error in the trial judge's instructions to the jury on Texas self-defense law. As I wrote at the time:
The facts of the case are somewhat ambiguous on detail, but in general they consist of an amalgam of a loud, drunken party, long-simmering neighborhood disputes, and incredibly poor judgment on the part of a retired fire-fighter in electing to exercise his concealed carry license by bringing his pistol to a confrontation. A tragic outcome was entirely predictable.

Posted by Mike LaChance on November 01, 2015 25 Comments
The city of St. Louis has been plagued by a string of fires at churches with black congregations. Some were quick to jump to the conclusion that the fires were racially motivated. David Graham at The Atlantic played that racial card:
The situation is not unlike the arsons that followed the massacre at Emanuel A.M.E. Church in Charleston this summer. As The Atlantic pointed out at the time, there’s a long history of terrorism against black churches in America, one that begins in the era of slavery and continues up through Reconstruction, the civil-rights era, and into the 1990s. But unlike those burnings—and despite the intense focus on the St. Louis area since the August 2014 death of Michael Brown in Ferguson—the recent arsons have been slow to get the same attention, either in the national media or even in the area.... Burnings of black churches has often been a tactic for white supremacist groups.
That narrative took a hit with the announcement that a suspect was arrested for two of the fires. The suspect is black. The Washington Post reports: