Tag Archives: evidence

LA Supreme Court: It’s Reasonable to Believe “Give Me a Lawyer Dog” was Request for a Dog Who is a Lawyer

Lawyer Dog Louisiana Supreme Court Canine Attorney

Lawyer Dog should really ask Grumpy Judge to recuse herself. #JusSayin

Recently, the Louisiana Supreme Court issued a ruling on a motion to suppress evidence against Warren Demesme, who is currently awaiting trial in New Orleans. By a 6-1 majority the court denied that motion, which maintained that statements Demesme had made should be thrown because the police had ignored his request for legal counsel during interrogations.

What’s gotten a lot of attention (and rightfully so) since that ruling is the courts’ contention that Demesme’s request was ambiguous and unclear. But even more so for the reasoning behind the ruling. Orleans Parish Assistant District Attorney Kyle Daly argued in his response to the motion that Demesme’s statement, “just give me a lawyer dog,” could be misinterpreted by a “reasonable officer” based on the use of the words “lawyer dog.”

In a brief accompanying the decision, Louisiana Associate Supreme Court Justice Scott J. Crichton agreed that the defendant’s use of “lawyer dog” could be misconstrued to mean something else and therefore did not qualify as a request for counsel.

Via the Washington Post:

Warren Demesme, then 22, was being interrogated by New Orleans police in October 2015 after two young girls claimed he had sexually assaulted them. It was the second time he’d been brought in, and he was getting a little frustrated, court records show. He had repeatedly denied the crime. Finally, Demesme told the detectives:

“This is how I feel, if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog ’cause this is not what’s up.” The punctuation, arguably critical to Demesme’s use of the sobriquet “dog,” was provided by the Orleans Parish District Attorney’s office in a brief, and then adopted by Louisiana Associate Supreme Court Justice Scott J. Crichton.

Demesme subsequently made admissions to the crime, prosecutors said, and was charged with aggravated rape and indecent behavior with a juvenile. He is being held in the Orleans Parish jail awaiting trial.

The public defender for Orleans Parish, Derwyn D. Bunton, took on Demesme’s case and filed a motion to suppress Demesme’s statement. In a court brief, Bunton noted that police are legally bound to stop questioning anyone who asks for a lawyer. “Under increased interrogation pressure,” Bunton wrote, “Mr. Demesme invokes his right to an attorney, stating with emotion and frustration, ‘Just give me a lawyer.’” The police did not stop their questioning, Bunton argued, “when Mr. Demesme unequivocally and unambiguously asserted his right to counsel.”

Louisiana Associate Supreme Court Justice Scott J. Crichton

Louisiana Associate Supreme Court Justice Scott J. Crichton

Orleans Parish Assistant District Attorney Kyle Daly responded in his brief that Demesme’s “reference to a lawyer did not constitute an unambiguous invocation of his right to counsel, because the defendant communicated that whether he actually wanted a lawyer was dependent on the subjective beliefs of the officers.” Daly added, “A reasonable officer under the circumstances would have understood, as [the detectives] did, that the defendant only might be invoking his right to counsel.”

Bunton’s motion to throw out Demesme’s statement was rejected by the trial court and the appeals court, so he took it to the state Supreme Court. The Supreme Court, in a ruling issued last Friday and first reported by Reason, could have denied the appeal without issuing a written ruling, which it does in most cases. But Justice Crichton decided to write a brief concurrence “to spotlight the very important constitutional issue regarding the invocation of counsel during a law enforcement interview.”

Crichton noted that Louisiana case law has ruled that “if a suspect makes a reference to an attorney that is ambiguous or equivocal . . . the cessation of questioning is not required.” Crichton then concluded: “In my view, the defendant’s ambiguous and equivocal reference to a ‘lawyer dog’ does not constitute an invocation of counsel that warrants termination of the interview.”

So…

There’s a lot of things wrong with that decision. The most obvious issue is that they didn’t actually provide him with a dog who is a lawyer, as they claim they thought he had requested. It’s probably not the wisest move to request a dog to represent you in court, but if he’s a good boy and graduated from an accredited law school, who am I to cast aspersions?

Of course, that’s kind of the biggest problem with the “logic” of this ruling. They couldn’t give him a “lawyer dog” because, outside of memes on the internets, it’s not an actual thing. At this point in history, not one single dog has ever managed to pass the bar exam. Not Lassie, not Rin Tin Tin, not Benji, not even Snoopy. Scooby Doo is way to high to even think about taking the SAT’s, let alone the LSAT’s, and don’t even get me started on Marmaduke.

If any dog could have pulled it off, it obviously would have been Brian Griffin, but he died tragically after eating chocolate out of the garbage years ago. So, he’s not available right now.

What it boils down to is, if somebody asks for legal council, as is their constitutional right under the Sixth Amendment, you shouldn’t just be able to pretend you didn’t understand them because they used some (not uncommon) slang. In fact, if for some reason they ask for a “lawyer dog,” but there aren’t any available (or willing to work pro bone-o), then you give them a lawyer human instead.

It’s hard to have a lot of faith in the U.S. Injustice System, especially after rulings like this (not to mention all the coerced confessions and false convictions they allow for). However, you would hope that some sense of common decency and shame would compel the next appeals court this goes in front of to render a proper ruling on this nonsense.

I have a suspicion this might be a big part of the reason why the State of Louisiana has the highest incarceration rate in the entire world.

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Update: Mike BlueHair of FTP PDX Arrested During Protests Against Portland Police Contract

Technically, this is a prequel, rather than an update, since he was arrested prior to the protests I wrote about here at the CopBlock Network last night.

The video begins with a voice over during footage of the protests in which Mike states that a third of the people who follow his Youtube channel want to see him get arrested and this will make them happy because he was finally arrested on a charge of disorderly conduct.

In the portion of the video that actually shows the arrest, Mike is heard responding to an unheard statement by asking, “I’m under arrest?” He’s then told to step down from a wall he is standing on, presumably to get a better view for filming the protest, by a group of riot cops. After he discusses wanting to have the SD card from his camera placed into evidence, Mike then asks why he is being arrested. One of the police officers replies, “for being in the street” and then asks, “how many warnings did you have to come out of the street?” At that point, Mike states, “I’d like to invoke my right to remain silent; I’d like to speak to a lawyer, please.”

The video then returns to a voice over in which Mike states that he gives the officers who arrested him credit for being professional and treating him with dignity and respect. However, he also states that he wishes the police would have treated the protesters at City Hall with the same respect and that he is “livid” over the way things were handled by police there.

Related Posts:

Mike BlueHair films the police in and around Portland as part of “Film The Police Portland,” also referred to as “FTP PDX.” In addition, he has traveled to various other parts of the country to film the police. He has a very active Youtube channel, which he has uploaded thousands of videos to.

In fact, it could very easily be questioned whether the police should be ordering him to leave the street (the stated basis for his arrest), based on his years of work as an independent journalist documenting protests and other activities, if he was simply observing and not actively participating at the time. (I happen to know has a press pass, because I made one for him.)

Mike has been featured many times over the years in posts on CopBlock.org. Below are links to posts in which Mike has been involved in or mentioned within.

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Police Lineups, False Identifications, And Wrongful Convictions

The following post was shared with the CopBlock Network anonymously, via the CopBlock.org Submissions Page. It was originally published at the Pacific Standard by Sue Russell in September 2012 and reposted at Salon.com.

Why Police Lineups Can’t Be Trusted

The single biggest cause of wrongful convictions is mistaken eyewitness identification. Is there a better way?

Studies have shown that memory and recall are more fallible than failsafe. That finding undermines eyewitness identifications—a critical prosecution mainstay—revealing them as far more fragile evidence than imagined. Just ask Rickey Dale Wyatt of Dallas, Texas. On January 4, 2012, he was released from prison after serving 31 years of a 99-year sentence for a rape he did not commit.

Police were sure that a single rapist had committed a cluster of rapes when they arrested Wyatt for three assaults.

The third victim, who had been grabbed from behind and dragged at knifepoint to a dimly lit area, was the first to identify Wyatt. Ultimately, all three picked Wyatt from photographic lineups. All had described their rapists as being between 170 and 200 pounds, between 5’9” and 6’, and as having no facial hair. Wyatt is 5’6”, was close to 140 pounds—and he had abundant facial hair and a mustache.

While Victim No. 3 identified Wyatt in the photo lineup, she had failed to do so in a live lineup (which wasn’t recorded). That failure, and knowledge of the lineup’s very existence, was withheld from Wyatt’s defense attorney.

Wyatt stood trial for one rape: the first. While his nephew testified that he’d never weighed more than 140 pounds, a police officer testified that after Wyatt’s arrest the suspect had lost approximately 30 pounds in 10 days.

Wyatt, then 25, declined a plea deal for a 5-year sentence and defended his innocence in front of a jury. He lost.

There was much that jurors did not know. Innocence Project lawyers who eventually fought to free Wyatt found that police and prosecutors held back exculpatory photographic evidence of the physical appearance mismatch—then-recent photographs showing Wyatt with facial hair, weight approximately 135 pounds. They also alleged that a report in which the third victim put her attacker at around 200 pounds was suppressed; at his sentencing hearing, the third rape victim publicly identified Wyatt as her rapist.

Wyatt’s complex case had more problems than just lineup problems, starting with an inadequate legal defense. Body fluid tests did not link Wyatt to the rape, and his trial lawyer failed to challenge it. The attorney also failed to present evidence like recent hospital records that would have shown Wyatt had facial hair.

Wyatt’s conviction was vacated thanks to the efforts of the Innocence Project and Dallas’s Conviction Integrity Unit and District Attorney’s office, which pushed for DNA testing. Also key: the city of Dallas’ propensity for saving physical evidence likely to have been discarded elsewhere to save on the cost of storage.

The need to reform eyewitness identification procedures has been recognized in recent years, but actual changes have lagged. Although the Department of Justice issued its “Eyewitness Evidence, A Guide for Law Enforcement” (pdf ) in 1999, calling for written protocols on eyewitness evidence, many U.S. police departments still lack written protocols. Last June, 10 states including Texas enacted legislation requiring all law enforcement agencies to create written procedures.

Misidentification is the single biggest common denominator in wrongful convictions, and a factor in 72 percent of cases overturned by DNA nationwide. In 50 percent of those convictions, shaky eyewitness testimony was not shored up by physical evidence or other corroboration like a confession or informant testimony.

In 2001, New Jersey became the first U.S. state to adopt federally recommended guidelines on witness identifications after mounting awareness of the old methods’ fallibility (such as eyewitnesses being influenced by unintentional verbal or body clues from investigators).

But those improvements still didn’t go far enough, said experts.

The 2004 case of Larry Henderson, sentenced to 11 years for reckless manslaughter and weapons possession in connection with a fatal shooting in Camden, pushed New Jersey to examine its standards again.

In his appeal, Henderson argued that police had failed to follow the guidelines adopted in 2001 and that the police photo lineup conducted 13 days after the murder improperly swayed a witness to pick him out. The witness later testified that a police officer had moved the photographs around as if hinting which to select and that “there was pressure” to make a choice.

An appellate panel in 2008 called the Henderson lineup “a charade” and ordered a new hearing on the photographic evidence’s admissibility. The state appealed. In response, the New Jersey Supreme Court said that before it would address the issue, it wanted a full inquiry into procedures used in the state’s eyewitness identifications.

That’s when, says Barry Scheck, cofounder and co-director of the Innocence Project at the Benjamin N. Cardozo School of Law at Yeshiva University, “they did something that courts should do much more with science and the law. … They remanded it to a special master, a very smart retired judge”—in this case former New Jersey State Appellate Judge Geoffrey Gaulkin.

Gaulkin’s task was to determine if New Jersey’s identification procedures were scientifically sound. He held hearings and reviewed more than 2,000 pertinent scientific studies published since the 1977 introduction of the Manson test. The test is a two-step process that first decides whether the eyewitness procedures police used to identify a suspect were impermissibly suggestive. If so, courts must then determine, using a five-part reliability factor test, whether the identification still should be admissible. Bottom line: even if there are problems with the procedure, unless there is a “very substantial” likelihood of an “irreparable” misidentification, courts must allow the identification into evidence.

In a June 2010 report (pdf), Gaulkin wrote that the short answer to the court’s question whether the test and associated procedures were “‘valid and appropriate in light of recent scientific and other evidence’ is that they are not.”

His report called for a major overhaul of the legal standards governing whether or not eyewitness testimony is allowed in court. And he recommended that memories be treated as “fragile, difficult to verify and subject to contamination.” During his research, he’d come to view them as more akin to trace evidence: “a fragment collected at the scene of a crime like a fingerprint or a blood smear, whose integrity and reliability needs to be monitored and assessed from the point of its recovery to its ultimate presentation at trial.”

 Not only can law enforcement unconsciously lead a witness towards identifying a suspect, he noted, but they—along with other witnesses or family members—can unconsciously contaminate a witness’s memory. What those people say and do can bolster, indeed overinflate, a witness’s level of certainty in their identification.

Cognitive neuroscientist Itiel Dror of the University College of London points to psychological research that shows  “time and time again no correlation between confidence and accuracy.” Yet heightened confidence can easily be mistakenly read that way, leading a court to allow improperly overstated evidence and jurors to give it too much weight.

Gaulkin recommended that judges and juries alike be made fully aware of all scientific facts that can impact eyewitness identifications’ trustworthiness and that the burden be on prosecutors to provide proof that evidence and testimony is reliable. He concurred with Innocence Project recommendations that courts examine scientific variables that can impact accuracy by hearing testimony from eyewitnesses and police officers pre-trial at admissibility hearings.

“That was a very big deal,” says Barry Scheck. “For years, we’ve been working with experimental psychologists on eyewitness identification issues and on getting the courts to change their standards for assessing that evidence, and on changing the way they do pretrial reliability hearings to make them more in accordance with the science.”

Professor Daniel Medwed of the S. J. Quinney College of Law at the University of Utah, also favors pre-trial review. “It just enhances decision making at the front end,” he says. “And the better the decision on the front end, the better everything will play out. Because once you make a decision, because of cognitive bias, people often become very wedded to that initial decision. You can call it tunnel vision, confirmation bias, expectancy bias, whatever…but it’s very common.”

New Jersey set aside the Manson test in August 2011. Now eyewitness identification procedures must be captured by cameras. New Jersey judges also must hold hearings—mid-trial if necessary—to weigh fairness when a defendant presents evidence that an identification procedure was unfairly suggestive. And judges must convey to juries that memory is imperfect and that recall can be wrong or distorted. Jury instructions must explain factors that may affect identification dependability, including lighting, poor eyesight, the length of an encounter, whether a witness was under the influence of drugs or alcohol and whether a weapon was being brandished.

Plus, studies show people have more trouble differentiating faces of races not their own and more mistakes happen in cross-racial identifications. Innocence Project research found that to be the case in 53 percent of mistaken-identification cases where the race is known.

The Innocence Project wants states to mandate uniform procedures that include recording lineup proceedings and having blind administration: lineups with pictures or people shown one at a time by officers who don’t know if a suspect is even present. And it recommends witnesses write “confidence statements” immediately after they view a lineup, expressing—in their own words—their level of faith in any identification.

In 2006, a year-long field study conducted by Illinois state police seemed to contradict earlier research, which consistently found fewer mistaken identifications if eyewitnesses view lineup participants one at a time when making identification decisions. But the Illinois study’s design was deemed flawed, more research followed, and a recent study conducted by the American Judicature Society has added to earlier research showing fewer errors in lineups that are sequential rather than simultaneous.

Specifically, it found that viewing lineup participants singly rather than simultaneously—where witnesses must rely on their memories and not on making comparisons—doesn’t significantly reduce the number of accurate positive identifications. Nor does it impede a witness’s ability to make an identification. But it does lead to a significant reduction in witnesses selecting “fillers”—the non-suspects put in lineups. In simultaneous lineups, fillers were picked out 18.1 percent of the time but only 12.2 percent of the time in sequential lineups.

According to eyewitness expert and American Judicature Society study co-author Gary Wells, the future is likely to see a shift to computer-generated lineups designed to reduce bias or investigator influence. Wells also is studying what happens to an eyewitness trying to identify a perpetrator when their memories fail.

“Instead of the person sort of bailing out when memory fails and saying ‘Gee, I don’t know’ or ‘I guess I’m not going to identify anyone,’ secondary processes kick in,” Wells, an Iowa State University psychology professor exploring these issues for 35 years, explained in a statement. “And rather than the primary processes, which are automatic, these secondary processes require more thinking. We call them deliberative. People tend to be more conscious of these. They’re engaged in a process of reasoning and they tend to be more verbal.” As far as misidentifications go, says Wells, these processes “tend to be the dangerous ones.”

Lineup designs, meanwhile, continue to improve, as do legal protections. Thanks to its Supreme Court ruling, New Jersey now has the nation’s toughest guidelines and offers a blueprint—“a new legal architecture,” as Scheck calls it—that may spur nationwide reform.

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False Arrest and Assault at Menards After Refusing Search

The following post and video was shared with the CopBlock Network by Charles M. Waters, via the Cop Block Submissions Page.

Along with the video description, Charles states:

I would love if everyone could spread, embed, and post my video. I am also trying to get a crowd funding campaign going to pay for my attorney, to take this fight to THEM.

Date of incident: March 27th, 2016
Officers Involved: Officer Newbury,  Badge #147; Officer Kirchner, Badge # 131; Officer Madson, Badge #85
Department Involved: Coon Rapids Police Department
Phone No.: (763) 767-6481
Address: 11155 Robinson Dr NW, Coon Rapids, MN 55433

I never participate in “receipt verification”, and previously have never had a problem. I have a real issue (apparently due to autism) with my privacy and property, and never felt OK with having to submit anything I own to “inspection”. I feel that if a store wishes to treat paying customers like assumed criminals, they have no business being in business.

So on this date, I had already given my receipt four times to three different people just to get my merchandise. I showed my receipt AND proof I actually picked up my merchandise, to the gate guard. He insisted I open my trunk, but I refused. He said “You could have anything you want in that trunk”, to which I asked if he had any evidence I took anything I did not pay for.

They refused to open the gate, so I called police as I was being falsely imprisoned at this point. Police arrived, and although I was the complainant, they only spoke with the manager of the store. Then they demanded I open my trunk. I refused. They said they would get a warrant, I invited them to do so.

Instead, they searched me, THEN handcuffed me and placed me in a squad car. I was told that they would just leave me there and I would not be let out until I complied with a search they could not get a warrant for. Then they went after my wife, told her neither of us would leave “today” until she opened the trunk. She reluctantly complied, out of fear they would do the same to her.

Whatever you may think of what I should or should not do with respect to opening my trunk, these facts remain:

  1. I had not committed any crime, nor had I even been ACCUSED of one.
  2. I was the one calling to report a crime that Menards was, in fact, committing against ME, and all the elements of that crime were readily apparent to officers.
  3. They said they would get a warrant, but they knew they could NOT.
  4. Knowing that they could not get a warrant, they caused deliberate harm to compel us to do something they could not lawfully accomplish.
  5. Upon being proven innocent, of a crime no one accused, I was deliberately assaulted without any cause or reason.

The Chief of Police has said in so many words his officers actions were appropriate and within the confines of the Constitution.
They can literally just cuff you and put you in a squad car, and threaten to keep you and your wife from your children indefinitely, when they can’t get a warrant. They can “compel” you to “comply”.

Here is where you can tell the arresting officer how you feel.
Coon Rapids Police Department

And feel free to review the police derp-artment here:
Coon Rapids Police Department – Reviews

– Charles M. Waters

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At Least 2,000 Baltimore Cases Being Reviewed For Improper Electronic Surveillance

This post was submitted by Sulu Kelley III, via the CopBlock.org submissions page. Along with the submission, Sulu states:

If the judiciary is concerned, what outrage should the general public be displaying right now?

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Stingray SurveillanceAt least 2,000 cases in Baltimore, MD, are being reviewed by defense attorneys following recent revelations concerning police surveillance. Maryland requires defense attorneys be informed about electronic surveillance, which conflicts with the Non-Disclosure Agreements, or NDAs, which police departments are required to sign before purchasing cell-site simulators, or Stingrays.

These devices function by telling your phone that the device is a cell tower, and pinging it for the phones location data. Simply removing the battery from the phone is not sufficient to stop the location signal. A device called a Faraday Cage, similar to that sold to protect credit cards from RFID theft, is necessary to completely block the location signal.

Consider what might happen if you were found holding a cellphone that was tracked using this technology. In a current case in Baltimore, Anthony Todd claims that he found a ringing phone under the porch of a vacant house. Todd does not match the description of the person wanted for the murder he is accused of, and surveillance video shows other people looking at the porch the phone was allegedly found under.

Stingray Surveillance TruckThe key problem in the use of cell-site simulators lies in the NDA. That agreement prohibits disclosing the use or existence of Stingrays to, well, anyone. The knowledge of them seems to come out in things such as invoices for training or “cellular equipment” that are obtained through requests for public records. This extends to motions for discovery in criminal cases. (These motions are for when the prosecution, the government, tells the defendant, the person accused of the crime, what evidence the prosecution has that the accused committed the crime. This is so the accused can defend themselves against the charge, and is a central concept to how our criminal justice system is supposed to be organized.) If the accused is unaware of how the evidence against them was gathered, then they cannot mount a defense against it, by any number of methods. Questioning the training of those who gathered the evidence, the accuracy of the equipment, and the lawfulness of the method itself are the first three methods which spring to this writers mind.

Even if these cases are reviewed by the defense attorneys, there is no guarantee that a motion for a mistrial will be filed. It depends on how the information was presented in court. If the cell-site simulator was used to reverse-engineer a case, then there is no opportunity to argue against its use, as it is not presented in court.

How Stingray WorksIf the defendant is not informed of the methods used, they cannot mount an effective defense. This is an affront to our system of criminal justice. The concept that an NDA could stand against discovery is best summed up by Baltimore Circuit Judge Barry G. Williams addressing Baltimore City Police Det. John L. Haley “You don’t have a nondisclosure agreement with the court.” Judge Williams then threatened to hold Detective Haley in contempt. In a related exchange, Florida Circuit Court Judge Frank Sheffield thundered to the state’s attorney, Courtney Frazier, that “Inhibiting law enforcement’s rights are second to protecting mine!” As is apparent, when the judiciary is knowledgeable about the use of these devices, there is concern over the safeguards in place to protect the public from misuse.

-Sulu Kelley III

Get more knowledge at the CB Library

Get more knowledge at the CB Library

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