Free Speech in the Missouri State Public Defender System

Tomorrow morning, former public defender Jon Bailey will appear on 89.3, KCUR, at 10:00 a.m. to discuss problems and solutions within the Missouri State Public Defender System.  Jon is no longer a trial attorney with MSPD, despite an exemplary record as a trial attorney in Kansas City.  Two weeks ago, MSPD fired Jon when he publicly criticized the System for its failure to enact meaningful internal reforms that would benefit poor clients throughout the State of Missouri.

The actions of the MSPD directors illegally violated Jon's right to free speech.  This week, we will file a lawsuit to hold those responsible for firing Jon accountable for violating his Constitutional rights.  Jon will discuss his lawsuit, problems with MSPD, and proposals for meaningful reforms tomorrow on KCUR.

Stand Your Ground: Understanding One of Missouri's Complex Use of Force Rules

Back in January, a young Mizzou student, Karl Henson, became dissatisfied with his new phone, and he listed the device for sale on Facebook, where it remained for about 30 days before a buyer contacted him.  The two men scheduled a meeting in Columbia, and during the transaction, the buyer took off with Henson's phone without paying for it.  Henson pulled his pistol, and started firing at the thief.  Henson wasn't much of a shot, the thief lived, but one of the rounds found its mark in his heel.  Henson told police that he believed that his use of deadly force was justified under Missouri's new "Stand Your Ground" law which became effective at the beginning of the year.

Justification in Henson's case had nothing to do with Stand Your Ground, but rather use of force to defend property. Under this rule, physical force, but not deadly force, is permitted to prevent theft unless deadly force is necessary to protect against death, serious physical injury, or any forcible felony.

Henson's beliefs were wrong, and he has now been charged in Boone County, Missouri with Assault in the First Degree and Armed Criminal Action.  Henson faces 10 to 30 years, or life, on the assault charge, with a mandatory minimum of 85% before becoming eligible for parole, and a mandatory minimum of three years on the ACA.  He's expended money on lawyers, litigation, and to a bondsman who posted his $50,000 bond.  Henson's ignorance has already cost him thousands, and it may cost him a decade or more of his life.

Missouri's rules on use of force, including self defense, have become increasing complex over the years. The "Stand Your Ground" rule, along with the so-called "Castle Law Doctrine" have  changed the circumstances when force or lethal force may be justified.  Coupled with these changes, Missouri has now authorized its citizens to carry unlicensed concealed weapons throughout the state, except in the seventeen places where the General Assembly has decided that you cannot carry a concealed weapon.  Without licencing, there is no reasonable assurances that an armed citizen actually knows the legal parameters for when lethal force may be used, where a weapon may be carried, or the inherent legal risks that may come along with ignorance of the law.  

My hope is that this article on Stand Your Ground will help my clients avoid the type of mistake that that Henson made.  This article alone, however, is hardly enough legal training if you plan on being armed, and it is always wise to spend a small amount of money to ensure you know exactly what is allowed and what isn't.  Meet with a lawyer and learn the law.  

The new law reads simply enough: "A person does not have a duty to retreat: (1) From a dwelling, residence, or vehicle where the person is not unlawfully entering or unlawfully remaining; (2) From private property that is owned or leased by such individual; or (3) If the person is in any other location such person has the right to be."  This modifies the general rule that use of force is permitted only if it is reasonably necessary to prevent the imminent use unlawful force.  The so-called "duty to retreat" is embedded in the rule that any use of force be necessary.  If you can escape, then you can avoid using force to protect yourself or someone else.

Importantly, Stand Your Ground does not change the circumstances where deadly force is justified.  Deadly force is still only allowed to protect yourself or another from death, serious physical injury, or any forcible felony. (The Castle Doctrine changes this rule, and will be a subject of a future post.)

The creation of Stand Your Ground has some merit in public policy.  Someone who is attacked often has only a split second to make a decision whether to flee or fight.  If that person is then later charged, a prosecutor may argue that the defendant could have, and should have, escaped from harm, and so the decision to use force was both unnecessary and unreasonable--which would make the defendant guilty.  The same policy goals are also present in the Castle Doctrine, where victims of a home invasion shouldn't have to decide in a split second whether the intruder's actions merit deadly force.  The concept behind these laws is to give the benefit of the doubt to the victims of crimes, who, if charged, should not have their high-stress, split-second decisions second-guessed by a jury.

Prior to implementation of Stand Your Ground, despite public perception, there was no such thing as a duty to retreat. The phrase itself makes it sound as though a person under assault must first find an escape route prior to fighting back.  That was never the case.  Rather, use of force must have been reasonably necessary, and if a situation did not allow for a safe escape, force was always justified even without Stand Your Ground laws.  The law did not require a person to make a run for it before using force if the escape attempt was unreasonable, and this misconception has in part fueled the public's desire for these types of laws.

In the gym where I once trained Krav Maga and my kids still train in jujitsu, Warriors Academy KC, the philosophy of self-protection remains in line with the old laws of self-defense.  It is safer, both physically and legally, to get out if you can.  Avoid bad places and unsafe situations.  If you find yourself in an unsavory spot, escape before you can be attacked.  If extrication is not safe, and if the situation cannot be deescalated or diffused, then it is time to fight if an attack is imminent.  The current law, however, may convince someone to "stand their ground" simply so they can get in a fight that is otherwise avoidable.  Not only is that approach to self-defense incredibly risky to one's health, but it may create significant legal risks as well.  Prosecutors may still charge someone, under their view of the facts and interpretations of the law, and juries may still convict.  There are no guarantees once a fight goes down, especially if one of the combatants ends up dead.  And if you are the one who lives, it may be a life in a jail cell.

But if you are assaulted and fight back, and you did consider escaping but decided it was far too risky, Stand Your Ground will provide a defense and good measure of legal protection from being second-guessed at a prosecutor's desk or in a jury deliberation room.

So use the law for its intended purpose: not to get into physical fights, but to stay out of legal ones.

Marijuana, the Drug War, and Jeff Sessions' walk backward in time

Back in 2012, I received a call from the federal court in the District of Kansas.  The government had just unsealed a massive indictment, charging more than 40 people with conspiracy to distribute marijuana.  A local police department had conducted a few undercover purchases of marijuana, one pound each, and had somehow managed to convince the the U.S. Attorney to allow it to take the lead on a massive wiretap investigation.  

Title III wiretaps are no easy matter.  Unlike an ordinary search warrant under the 4th Amendment, which only requires proof of probable cause that incriminating evidence will be found, police have a great number of hurdles to jump before getting wiretap authorization. First, they must show that there is a probability of finding incriminating evidence through a particular phone. They accomplish this usually by setting up undercover operations where an informant contacts a dealer through that phone number, and evidence of the transaction is recorded and reported through the informant.  But the police must also show that they have exhausted all other options to discover the evidence, such as undercover officers, surveillance, building searches, grand jury subpoenas, and the like.  Even if they can prove this, the warrants only last for a month, and the police must provide the court with regular updates about the wiretap.  When the month expires, they must reapply demonstrating an ongoing need for the wiretaps.

Once a wiretap is approved, first by the local U.S. Attorney, then the Department of Justice in Washington D.C., and finally by the court, the police may start listening to calls.  In the old days, this would have meant that agents would break into a building and physically attach a device to the phone line.  No more.  Now cellular phone companies simply receive a court order directing them to route the phone calls directly to a DEA computer in the local office.  A team of agents then sits at the machine waiting for calls, listening as they come in, all while directing agents on the street if they want to immediately act on what they learn through the wiretap.  The new convenience of cellular technology has made wiretaps a much easier proposition, and wiretap warrants have increased dramatically over the last decade.

The increase in wiretaps has also increased the size of the cases that the government files.  With over 11 telephones tapped for more than 6 months, there were hundreds and hundreds of hours of conversations to review in this case.  The investigation generated hundreds of thousands of documents, and tens of thousands of hours of work for defense lawyers to prepare the case.  Each defendant received a lawyer, and given the time commitment, the government was required to pay those costs as the defendants themselves could not afford the extraordinary costs to litigate such a massive case.  

Needless to say, the whole case, which is still ongoing, has cost U.S. taxpayers tens of millions of dollars.  From agents, lawyers, court staff, paralegals, facilities, and storage, the cost has been extraordinary.  Some individuals ultimately received probation, some a few years in prison, and the most severe penalties were in excess of ten years in a federal penitentiary. A Kansas City detective once told me that law enforcement estimates that nearly 15,000 pounds of marijuana comes into Kansas City every month.  Even if the the marijuana distributors in this case were never replaced, the government's efforts were at best inconsequential.  Of course, other people have certainly stepped into the role, and marijuana flows as freely throughout the city as ever before.  Millions of dollars, lives wasted in prison, and not a single thing to show for it.  It is just as easy to get a sack of weed in KC as it was before filing the case.

Now Jeff Sessions would like to revived the Drug War by targeting not only marijuana distribution outside of medical and recreational states, but also by incarcerating medical marijuana suppliers in states like Colorado and Washington.  Whatever the current science is on the potential harms (and benefits) of marijuana use, the truth is that the criminal justice system itself creates more harm than the plant itself.  We know the government itself does not think that the drug is too particularly harmful, when having the ability to seize marijuana from the streets, agents routinely let hundreds of pounds of marijuana make its way to market just so they can learn who is involved in the green stream.  Tax dollars are wasted along with the lives of those non-violent offenders who are thrown in jail.  The "problem" isn't solved,  and the government just continues to spin its wheels.

Former Nixon officials have acknowledged that they created the war on drugs to target African-Americans and hippies. Now Attorney General Jeff Sessions wants to restart this backwards, expensive, and harmful "war" against the citizens of our country.

Rest assured, we are still in the trenches, ever ready to fight.

Probation Violations and New Criminal Charges

I've posted a link below to a Washington Post article about a man who was charged but acquitted of robbery, yet nonetheless still went to prison for violating his probation.  There are some reported facts in the article that I find a little perplexing, which I will explain, but first it is important to understand how new allegations can affect probation.

When a person pleads guilty to a crime, it is common for the court to place the defendant on probation rather than sending them to prison.  Probation will often have a variety of conditions, which if violated can result in the probation being revoked and the person sent to prison.  Conditions often include supervision by a probation officer, reporting directives, avoiding felons, reporting new arrests, reporting employment or residency changes, and of course not committing new crimes.  If the probation officer believes the probationer has violated one of their conditions of probation, a report is filed and the court will hold a hearing to determine if they in fact violation their probation.

Probation violations, unlike new criminal charges, have a lower standard of proof.  In other words, a judge needs less evidence and does not need to be as convinced of a violation as does a jury in a criminal trial.  Juries must find that the defendant is guilty beyond a reasonable doubt before convicting someone, but a judge only needs to find that the defendant more likely than not violated probation, what's called the "preponderance of the evidence" standard.  A jury should never convict simply because it believes someone probably committed a crime, even if they have reasonable doubts about guilt, but this is the standard that a judge uses.  This means that a person could be charged with a crime, be found not guilty, and yet still have their probation revoked because of the same allegations.  In these cases, with both new criminal liability and a pending probation violation, we typically try the case to a jury in front of the same judge hearing the probation violation, so that the evidence does not need to be presented a second time before a different judge.

The peculiar part of the story below is not that the defendant's probation was revoked following an acquittal at trial, but because the condition that he apparently violated was simply being arrested.  I have never seen an arrest itself being the basis for a violation, especially as that is not a willful act and the arrested probationer may well be completely innocent of any wrongdoing.  Failing to report the arrest can violate probation, and committing a crime that caused the arrest are a violations, but simply getting arrested, in my 17 years of practice, has never been a violation of probation.  It makes me wonder if either the reporting in this story is accurate, or more worrisome, what exactly is going on in Georgia.

Man acquitted of armed robbery gets 10-year sentence? Here’s why:  www.washingtonpost.com/news/true-crime/wp/2017/05/31/man-acquitted-of-armed-robbery-gets-10-year-sentence-heres-why/?utm_term=.10c88c45e689

Criminalization of Being a Kid

I am significantly concerned with the way prosecutors and law enforcement officials approach child sexual behavior.  We rightfully have laws on the books designed to protect children from sexual predators, but these laws are regularly used against children who engage in consensual sexual conduct with their peers.  I know it makes me sound old, but when I was a kid, children getting caught playing spin the bottle would be sent home for a good lecture from their parents.  Today, parents regularly react by filing police reports, and prosecutors follow by filing charges.  Quite often, it is the boy who gets charged, even though both parties are juveniles and willingly participated.  That is, the girl has equally violated child abuse laws with her juvenile partner, yet only the boy faces criminal consequences.  These charging decisions may well violate the Equal Protection Clause of the of the Constitution, specifically a type of violation called "selective prosecution," a civil right among many.  Even if charged in juvenile court (which is technically not criminal and where the files are sealed from view) your child may be forced to register publically as a sex offender for the rest of his life if adjudicated as a sex offender--for engaging in consensual sexual conduct with his same-aged juvenile girlfriend.

Technology has greatly changed childhood sexual behavior, and kids now routinely share sexual photographs of themselves with other kids.  This creates significant criminal liability, as some prosecutors have viewed these acts as the illegal manufacturing and distribution of child pornography.  Recently, the House of Representatives passed a bill that would create a mandatory minimum sentence of 15 years for creating or distributing child pornography.  While no one would ever condone child pornography, the law fails to create an exception for juveniles engaged in consensual acts.  If your kid gets caught with his girlfriend's nude photos on his phone, the consequences could be severe.  And as there is such routine gender discrimination in charging decisions, if his photo is found on her phone, he could very well be charged and sentenced severely under this law just the same.

Talk with your kids.  Quite literally, their freedom is on the line.

House Overwhelmingly Supports Bill Subjecting Teen Sexters to 15 Years in Federal Prison

Court room kidnapping?

This judge should be immediately disbarred for committing a federal crime (despite his immunities), namely intentional infringement of the public defender's 4th Amendment right to be free from an unreasonable search or seizure, and the defendant's right to be represented by the effective assistance of counsel.  His conduct would potentially violate Missouri's kidnapping law, which prohibits restraining a person for a substantial period of time in order to interfere with their governmental duties.

Judge Handcuffs Defense Attorney

Science in the Courtroom: Are they guessing?

Too often in the work I do, I have seen so-called scientists reach the most inexplicable conclusions, usually without any scientific basisfor their claims.  Here is another example of the forensic science community abandoning scientific method.  As a lawyer with a significant amount of time studying science as a young engineering student, I always break down cases in accordance with scientific principles.  If it is not good science, it shouldn't be in the courtroom, and if it makes it to the courtroom, it should be destroyed by the lawyer.

http://standdown.typepad.com/weblog/2010/06/outdated-arson-science-a-factor-in-california-case.html

My first blog post...from 2010

I've now spent ten years working in the criminal justice system as a defense attorney, first as a public defender, and now a private attorney.  Over the years I've witnessed all of the heartbreak and exhilaration, highs and lows of a system that is both too often a tragedy and too often tragic.  I have seen people do some of the worst things imaginable to each other, but I have known all of them as people, victims and defendants, all with real emotions, families, and lives.  I have seen this system commit some of the worst injustices, and I have seen real, live authority figures lie and cheat.  I have also seen the system work, reform people, and exonerate the innocent.

I hope this forum will provide some insight into the detailed workings of the criminal justice system from a defense perspective.  Our jobs are often misunderstood, holding a public perception framed more by O.J. Simpson than reality.  In time, as I write more here, perhaps at least one person will learn just a little more about what we do.  From plea negotiations to civil rights violations, I hope this will become a source for insight.