Legal issues for investigators

1. Legal issues for investigators \Michael Jackson\Evidence\Prior bad acts.wmv...\Mom welfare cheat.wmv\Infamous defts\Train wreck.wmv\Phil Spector\Spector statements.wmv...\Murder or mansl.wmv...\infamous defts\Andrea Yates.wmv...\Legal Issues\William Strier.wmv\O.J.\Hotel robbery.wmv\O.J.\Audio tape.wmv

2. “Reasonable Suspicion” Investigative stop Probable Cause Preponderance of the evidence Arrest, search, complaint Civil judgment Clear and convincing evidence Beyond a Reasonable doubt (PC 1096) Civil commitment Criminal conviction Nothing Guess, hunch Continuum of Proof

3. Crime/public offense (Calif. P.C. §15-19) • “An act committed or omitted in violation of a law forbidding or commanding it” • Carries punishment of death, imprisonment, fine, removal or disqualification from public office • Types of crimes: • Felony: Punishable by imprisonment in State Prison (normally not less than 1 year) • Misdemeanor: All lesser punishments • Infraction: Not punishable by imprisonment

4. Elements of a crime • Each component of an offense that must be proven beyond a reasonable doubt • Examples • Burglary (P.C. 459) • Robbery (P.C. 211)

5. Phil Spector case charge –2nd. degree murder • Jury to decide only on this charge • Murder (187a PC): “Murder is the unlawful killing ofa human being, or a fetus, with malice aforethought.” • Malice (188 PC): “Such malice may be express or implied. • It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. • It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” • Proving that someone not acting in self-defense knowingly pointed a loaded gun at another person may be enough to establish malice (see later slide) • Degrees of murder (189 PC): “All murder which is...willful, deliberate, and premeditated...is murder of the first degree. All other kinds of murders are of the second degree.” • Penalty for 2nd. Degree murder is 15 years to life. 85% of the sentence must be served.

6. Distinguishing between murderand manslaughterLos Angeles Times, 9/19/07 • Jurors were told that to find Spector guilty ofmurder, they had to conclude he acted"deliberately with conscious disregard forhuman life.“ • Manslaughter requires recklessness, but not knowledge of a threat to life. • California jurors often look for the "I don't care" attitude. • "If you can show they were aware a life could be lost, yet in the face of that, exhibited that 'I just don't give a damn whether this person dies or not' attitude, then a [murder] conviction becomes a real possibility...If jurors can see reason or logic, despite recklessness, they often opt for manslaughter, rather than murder.” • Recklessness: A driver late for a job interview tries to pass a car on a blind curve across a double yellow line. He collides with an oncoming car and kills the driver. • Murder: A game of Russian roulette, where one person spins the gun’s cylinder and presses the barrel against another’s temple. The clear awareness that a life could be lost makes the survivor a murderer.

7. Types of evidence • Direct(‘Lectric Law) • Proves a fact without inferences or presumptions • Often eyewitness testimony – what a witness personally heard or saw • Circumstantial • Inferences drawn from established facts • Opinion evidence • Usually only from expert witnesses

8. Hearsay • Facts or circumstances outside the personal knowledge of a witness, offered to prove the matter stated • Deprives a defendant of the right to confront their accuser • Inadmissible at trial with many exceptions: • Confessions, statements against interest • Official and business records

9. Spector’s initial admission &later exculpatory statements • At a suppression hearing Spector asked that his admission to officers that he accidentally shot the victim be suppressed because he was under the influence of prescription drugs. His motion was denied. Judge Fiedler ruled that this admission can be introduced. • Spector’s lawyers also asked to introduce later exculpatory statements made by Spector to police, that Clarkson’s death was by her own hands, either an accident or a suicide. Judge Fiedler repeatedly refused to allow these statements in unless Spector takes the stand and can be cross-examined.

10. Admissibility of prior conduct • Evidence Code sec. 1101 defines what priorconduct can be admitted as evidence that theaccused may have committed the present crime • For example, evidence of past burglaries isusually inadmissible against someonecharged with a new burglary • BUT evidence that shows “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident” is admissible • So, if the new burglary is done in a very similar way to the old, then how the old was done may be admissible (i.e., “pattern evidence”) • Past conduct need not have resulted in arrest or prosecution • Evidence Code section 1108, passed in 1995, allows prosecutors to introduce evidence that a sex crimes defendant has committed sex offenses in the past, even if they were never prosecuted or convicted. Evidence Code sec. 1109 does the same in cases of domestic violence

11. Spector trial –Dorothy Melvin (5/3/07) • In 1993 she was at Spector’s houseand found him pointing a gun at herNew car. When she objected hepointed the gun at her, ordered her backinside and ordered her to strip. She went inside and they argued. She was finally able to leave, leaving her handbag behind. • She asked police to help her retrieve her handbag. Officers who responded temporarily handcuffed Spector while they helped the victim. • Prosecutors played a message Spector left on her answering machine: “Be very careful what you say to me because nothing you say is worth your life." • She did not report the incident to police -- she said she was Joan Rivers’ manager and wanted to avoid a scandal • She stayed in touch with Spector. She never again saw him alone

12. Parties to a Crime • Principals: Directly involved in the commission of a crime • Aiders and abettors: California law makes everyone who in any way promoted the commission of a crime liable as a principal • Accessories (after the fact): Those who help conceal a crime after its commission are liable as accessories

13. Parties to a crime –When things get complicated • Multiple suspects at a scene • Multiple occupants of a vehicle • Conflicting accounts • Alibis • Bottom line: it’s the investigator’s job to sort it out – never leave it to a prosecutor or jury! Why? Check out these disasters. . .

14. Man Accused in O.C. Toll Road KnifeSlaying Is FreeProsecutors say the victims instigated the attack. 'This isshocking to me,' the surviving brother says.L.A. Times 2/1/05 Murder charges were dropped against Rodrigo Requejo, 31,owner of a motorcycle shop and a reputed Hell’s Angel,who was arrested on 12/21/2004 for stabbing to death JustinAmmann and wounding his brother Jason Ammann at a trafficaltercation. Requejo, who fled the scene, was fingered byJason Ammann, who told deputies that the suspect assaultedthem and yelled “this is the Hell’s Angels’” as he stabbed hisbrother to death. Three independent witnesses since came forward to say that the brothers started the altercation by pursuing Requejo, beating him and dragging him from his truck. Requejo made his problems worse by falsely telling deputies that he had not been present during the incident. Prosecutors say that no one will face any charges.

15. Is Justice Done in 2 Versions? A California murder case in which two juries were tolddiffering accounts of events raises concerns about fairness,ethics and tactics. Los Angeles Times, 3/2/05 In 1990 an L.A. County D.A. argued to a jury thatTauno Waidla used a hatchet to kill a woman.This is a “special circumstance” so Waidla got death. Several months later, in a separate trial of Waidla’s accomplice, Peter Sakarias, the same prosecutor told another jury that Sakarias used a hatchet to kill the victim. Sakarias was also sentenced to death. Although the evidence revealed that Waidla delivered the death blows, while Sakarias only struck the victim after she was dead, the prosecutor argued at Waidla’s trial that he struck all the hatchet blows. At Sakarias’ trial he suggested that Sakarias struck all the blows. On appeal, the Calif. Supreme Court agreed that the theories were inconsistent and set aside Sakarias’ death sentence, but not his murder conviction. As to Waidla, who admitted striking the victim with a hatchet before she died, the Court ruled that attributing all hatchet blows to him was harmless error and his death sentence was allowed to stand.

16. ...another reason you don’t want to live in Florida You are a Pensacola homicide detective. On November 26, 2001 you arrive at the scene of a residential fire. Inside the home, lying dead on a recliner, is a 40-year old father of two. His head has been brutally caved in. You interview the dead man’s teenage sons the next day. Both extensively confess to the murder, on tape, providing many details that you confirm. They say they snuck up on their sleeping father and one boy beat him to death with a baseball bat. Your investigation reveals:

17. One boy told his former foster mother that he and his brother were going to murder their father. • One boy and a male adult neighbor were having a sexual affair. The neighbor was known as a “squirrel” but not as a violent person. • You arrest the boys, who recant their confession. Now they insist the neighbor killed their father while they hid in the neighbor’s car.

18. The neighbor strongly denies having anything to do with the murder. After telling different stories, he admits that he hid the boys after they killed their father. He also washed their bloodstained clothing.But the killing was not his idea or doing. What do you do?

19. Believe it or not! • The boys testified before a Grand Jury that the neighbor committed the murder while they hid in his car. • The same prosecutor: • Charged the boys with the murder (as adults), accusing them of caving in their father’s head in with a baseball bat. • Charged the next door neighbor with the murder, accusing him of caving in the dead man’s head with a baseball bat while the boys hid. • The neighbor went to trial first. A jury returned a verdict, which was sealed.

20. One week later the boys went to trial. They were convicted. The neighbor’s verdict was then read. He had been found innocent. (The boys’ confessions were played at both trials.) • The prosecutor later said it was up to the juries whether to believe the neighbor, and whether to believe the boys. • Detectives agreed there had been a near-total lack of evidence against the neighbor. One said that he never felt the neighbor was the killer. Both were “uncomfortable” that the neighbor was charged with 1st. Degree murder.

21. Here’s what law professors said (Los Angeles Times, 9/7/02): • “Christopher Slobogin, a law professor at the University of Florida, told Associated Press that, while it is rare to convene separate trials for the same crime based on differing prosecutorial theories, it does occur:” “It happens when the prosecution has probable cause that both sets of defendants are involved, but isn’t positive which set of defendants is responsible and leaves it up to the juries to decide.” • “Mark Seidenfeld, associate dean at Florida State University Law School, disagreed, saying prosecutors should have made up their minds about who they believed was guilty and tried only that case.” • US Attorney’s Manual, sec. 9-27.220: “The attorney for the government should commence or recommend Federal prosecution...if he/she believes that the person's conduct constitutes a Federal offense...and that the admissible evidence will probably be sufficient to obtain and sustain a conviction....”

22. On 10/17/02 the Judge who presided over the boys’ trial threw out their convictions. Jurors had said they believed that the neighbor actually committed the murder, but that the boys let him in the house. • At a courthouse rally for the boys the forewoman at their trial said the jury “never” thought the boys committed the crime. She said “we always thought that there was going to be some kind of rehabilitation, that the boys were going to be taken somewhere where they could have a new life and learn to be productive citizens.“ • According to the judge, the prosecutor said that if everyone had been convicted the State would have asked for the neighbor’s conviction to be set aside. He thought that was ridiculous. • Through a special mediation procedure, the boys were later given terms of six and seven years in a juvenile prison. • The neighbor was later tried and convicted of child imprisonment (he was accused of molesting the boys) and of being an accessory after the fact in the murder. He got 30 years… • Court TV coverage

23. Conspiracy • Webster’s definition: • to join in a secret agreement to do an unlawful or wrongful act or an act which becomes unlawful as a result of the secret agreement • to act in harmony toward a common end • California law • Two or more persons • Normally requires an overt act – something done in furtherance of the conspiracy by one of the conspirators • Punishable just like the intended crime

24. Intent • General: A person intended to commit the acts that constitute a crime • Not necessary to show they intended to break the law • Also described as “knowing” conduct • Examples: Possessing/selling drugs; machinegun • Specific: There was a “particular purpose” in mind • “Willfully” usually means a specific intent to break the law • Examples: Theft ; Auto theft; Burglary

25. Phil Spector case –Special instruction number 3 • On 9/19 Judge Fielder said he would throwout “special instruction #3”, which some jurors complained was confusing. He said that this instruction, which the defense had asked for, was incorrect as a matter of law. The prosecution agreed with the judge, while the defense objected. • SPECIAL INSTRUCTION #3: “As I have instructed you, to be guilty of the crime of which the defendant is accused, second degree murder, the defendant must have committed an act that caused the death of Lana Clarkson. It is the prosecution’s contention that the act committed by the defendant that caused the death of Ms. Clarkson was (to) point a gun at her, which resulted in the gun entering Ms. Clarkson’s mouth while in Mr. Spector’s hand. The prosecution bears the burden of proving that defendant Spector committed that act. If you do not find that the prosecution has proved beyond a reasonable doubt that the defendant committed that act, you must return a verdict of not guilty.” • According to legal observers, this instruction suggests that to find Spector guilty it is necessary to believe beyond a reasonable doubt that he specifically intended to kill Clarkson. But the law of 2nd. Degree murder does not require a specific intent to kill, only what one expert called “a callous disregard” for life.

26. Insanity defense • Insanity means that at the time of the offense the accused was incapable of: • Knowing or understanding the nature and quality of the act and • Distinguishing right from wrong (P.C. 25b) • Insane acts must be the product of mental disease or defect • Voluntary intoxication is not a defense • “Personality disorders” are not enough • Defendants usually plead not guilty and not guilty by reason of insanity • Separate trials are held, usually in front of the same jury • If a defendant is found guilty of the offense at the first trial, where sanity is presumed, the second, sanity trial takes place • To prevail at this trial, the defendant must demonstrate by a preponderance of the evidence that he/she was insane • Unanimous verdicts are required for both trials

27. Cary Stayner – The Yosemite Killer Was he insane? (From the Los Angeles Times, 9/16/02) On 9/16/02 jurors rejected the argument thatStayner was legally insane. One month earlier the same jury convicted Stayner of the 1999murders of Carole Sund, 42, her daughter, Juli, 15 andSilvina Pelosso, 16. The three had been staying at a lodgewhere he was a handyman. At the time of his conviction Staynerwas serving a life term for beheading a park tour guide,Joie Armstrong. Prosecutors said that Stayner was obviously abnormal, but thathis confession, in which he admitted burning a car and doingother things to cover up the crimes, demonstrated that he knewthe difference between right and wrong. The defense contended that Stayner’s family had a history ofmental disorders and Stayner claimed that “voices” told him to kill.One expert said that Stayner was psychotic, while two othersdisagreed. Stayner got the death penalty and is presently on death row.

28. Train derailment and collisionJanuary 26, 2005 Extract from L.A. Times 1/27/05 Juan Manuel Alvarez faces 11 counts of murder under "special circumstances" according to L.A. County Dist. Atty. Steve Cooley.Alvarez stabbed himself in the chest with a knife and tried to slit his wrists. Under state law, he could face the death penalty if convicted, but the decision whether to seek it has not been made. Alvarez, described as "deranged" by Glendale Police Chief Randy Adams, was under a suicide watch. “This man had a wanton and willful disrespect for the lives of others. [He] is now going to be held accountable by the justice system," Cooley said."The fact that he was distraught or distressed isn't a defense here — that is no excuse for endangering so many lives...He is not as distraught as the next of kin of 11 murder victims and more than 100 people injured” Cooley said. Cooley added that pursuing an insanity defense would "very, very difficult." UPDATE: On 9/21/07 the judge dismissed one of the defense lawyers for repeated delays.

29. Andrea Yates Conviction TossedLos Angeles Times, 11/10/05 Andrea Yates, the mother whoadmitted drowning her five childrenin 2001, will get a new trial. Courtsruled that her right to a fair trial wasviolated by false testimony from aprosecution medical expert, whosaid that Yates’ actions werepatterned on a T.V. episode of“Law and Order” about a mother who drowned her kids in a bathtub.This evidence was considered by the jury when determining whether Yates was legally insane. But it turns out that no such television showever aired. UPDATE: In July 2006 Yates was found not guilty by reason of insanity and committed to a mental institution.

30. On October 31, 2003 William Strierrepeatedly shot an attorney outsidethe L.A. County courthouse. Strierwas supposedly angry that he wasnot receiving sufficient money froma trust. He and the attorney, whorepresented the trust’s guardian,had never met. The attorneyrecovered. At Strier’s trial a cameraman testified that Strier yelled “that’s what you get for stealing my money!” Strier’s attorney claimed that the shooting was a “psychotic episode” caused by Strier’s use of painkilling drugs, and that the financial dispute left Strier unable to pay for an operation on his back. Strier showed up at court in a hospital bed, which he said was necessary for his injury. In January 2006 Strier was convicted of attempted murder. He got life plus 25 years. This wasn’t Strier’s first time. In 1969 he had shot a neighbor four times “for no good reason.” He got probation and a fine.

31. Attempts • Elements (P.C. 21a) • Specific intent to commit a crime, and • Direct “but ineffectual act” to commit the crime • Some attempts are separately defined in the statutes • Where not, an attempt is punishable by one-half the crime’s penalty • For murder, by life imprisonment (P.C. 663-5)

32. Privileged communications • Purpose: In some relationships, honesty serves a public purpose greater than law enforcement • Privilege attaches only to things said • Privilege can be invoked or waived by the speaker • No privilege when planning to commit a crime • Marital (E.C. 980) • During and after relationship • Attorney-client • Exception to prevent death or serious bodily injury • Reporter’s shield (P.C. 1070) • Source of information, whether or not published • “Unpublished” information, incl. notes

33. Impeachment:all witnesses • An attack on the credibility of awitness • Can be done by either party tolitigation • Basis • Unpardoned felony conviction • Reputation for honesty and veracity • Unable or not in position to see, hear, etc. • Other inconsistent statements • Bias, self interest or other “improper motive”

34. Impeachment: peace officers • California rule: “Pitchess” motion (P.C. 1045) • Access to officer personnel records for the prior five years • To get an in-camera review petitioner must show that “scenario of alleged officer misconduct could or might have occurred” (Warrick v. Superior Court, CA Supreme Court, no. S115738, 6/2/05) • More than just “saying so” – need some evidence • If dishonesty claimed, must relate to prior dishonesty • If brutality claimed, must relate to prior use of excessive force • Federal rule – applies everywhere:Brady v. Maryland • Due Process clause of Fourteenth Amendment • Prosecution must disclose all evidence relating to guilt or innocence that may be favorable to the accused • Includes grounds for impeaching prosecution witnesses • No time limits

35. Search and Seizure

36. Purposes of a search • Fruits of the crime (e.g.,stolen property) • Instrumentalities of the crime (e.g., a gun, burglary tools) • Circumstantial evidence of a crime (e.g., falsified records) • Leads to other sources of evidence (e.g., identify conspirators)

37. Warrantless searches • Consent • Administrative search authority(e.g., DMV, ABC) • Incident to arrest • Person • Entire passenger compartment of vehicle • Immediate vicinity, for weapons • Inventory search (must be non-pretextual) • Impounded vehicle • Personal belongings taken

38. Compelled evidence-gathering techniques:Subpoenas and search warrants • Subpoena – usually for persons and/or documents • Issued by courts for trial • Some agencies can issue administrative subpoenas (e.g., telephone toll records) • Grand Juries (investigative phase only) • When need a search warrant? • Looking for physical evidence of a crime • Fear of tampering or destruction • Preservation and handling issues (e.g., latent fingerprints) • Need evidence of a precise location where found

39. Search warrants • For persons, places or vehicles • Compelled technique • Intrusive and dangerous • Requires planning and great care • Tests: • Must we gather this evidence? • Is it available elsewhere? • Can it be preserved without being forcefully seized? • Are less intrusive options available?

40. Search warrant – basisfor issuance • Probable cause – what would leada reasonable person, exercisingnormal caution, to believe that: • A crime has occurred, is taking place or is being planned • Evidence or fruits of the crime are present at a certain location • California rules for issuance same as Federal • Federal laws and court decisions must be followed • Exception: under California State law cannot issue for misdemeanors

41. Search warrant –sources of information • Records, including criminalhistories • Observations • Witnesses • Law enforcement officers • Informers • Private citizens • Non-police witnesses not “proven reliable” cannot be the sole basis without corroboration • Hearsay permissible

42. Motor vehicles • No warrant necessary (Carroll v.U.S.) • May search anywhere, including closedpackages (USA v. Pinela-Hernandez,9th. Circuit) • Usually probable cause is required • Need a “fair probability” that contraband or evidence will be found • Not required for inventory search of an impounded vehicles • Sole basis for a vehicle search cannot be an uncorroborated “tip” from someone whose reliability has not been established (U.S. v. Morales, 9th. Circuit)

43. Premises • Expectation of privacy • None in a public area • Some in a vehicle • More in another person’s dwelling • Greatest in one’s own dwelling (home or apartment) • Cannot enter dwelling without search/arrest warrant • Exception - “exigent circumstances” • Save a life or prevent imminent destruction of evidence • Probationers and parolees have a lesser expectation if terms include warrantless search • If search based on reasonable suspicion, fruits can be used in criminal prosecution (U.S. v. Knights, Supreme Court)

44. Persons • No warrant required: • Search incident to arrest • “Terry” - reasonable suspicion that someone has a weapon • Probable cause that someone possesses evidence, and failing to secure it will result in its loss or destruction • Unreasonable for a hospital to perform non-consensual tests to identify drug users, then to use this evidence against them in court (Ferguson v. Charleston, Supreme Court) • Even if a wanted person is clearly visible inside their dwelling, cannot enter without arrest or search warrant (U.S. v. Oaxaca, 9th. Circuit)

45. Privacy expectations –some extreme examples • Warrantless search of a closedtent on Federal land ruled illegal (U.S. v. Sandoval, 9th. Circuit) • Squeezing an opaque bag during immigration checks ruled illegal (Bond v. U.S., Supreme Court) • Warrantless thermal imaging of garage ruled illegal as unusual device is not in general use (Kyollo v. U.S., Supreme Court) • No “murder scene” exception to search warrant (Flippo v. West Virginia, Supreme Court)