Thursday, December 11, 2014

Is Justice a Game? - The Racial Hurricane in Ferguson, Missouri

ferguson, racism, cops, gun control, violence, vandalism, property damageIn 1967, Rubin Carter, aka, Hurricane, a successful black boxer, was convicted of killing three people at a bar in New Jersey, a bar at which he was not present on the night in question.  Hurricane was imprisoned for 19 years, always proclaiming his innocence.  His conviction was finally set aside in 1987, and he was freed.  His case was widely known as an extreme example of racial injustice and intolerance. His case was also one that revealed some of the unreliability of eyewitness testimony.  In 1975, Bob Dylan wrote a song about the Hurricane's trial and its racial implications, in the years long struggle to advocate on Hurricane Carter's behalf.  Dylan's haunting lyrics ring true today.  "To see him obviously framed...Couldn’t help but make me feel ashamed to live in a land ... Where justice is a game..." Carter passed away in April 2014, prior to the racial hurricane in Ferguson, Missouri.  However, after Ferguson, amongst other events between Carter's incarceration, freedom and death, shouldn't we still be ashamed to live in a land where justice is a game?

On August 9, 2014, Michael Brown, another black (young) man, nearly half a century later, was walking down the middle of the street in Ferguson, Missouri, with his friend, Dorian Jackson. Brown had previously stolen cigarillos from the Ferguson Market.  Officer Darren Wilson, in his Chevy Tahoe, saw Brown and Jackson walking in the middle of the street, and pulled alongside them , asking what was wrong with the sidewalk.  Jackson indicated they were almost to their destination, and depending on whether you believe Wilson or Jackson, Brown cussed at Wilson, or said nothing, respectively.  After reading a large portion of the grand jury testimony and several media interviews, this writer knows that the agreed upon facts are that Wilson then reversed his vehicle, blocked the path of Johnson and Brown, and began to engage them. Then, Brown and the officer began to have an altercation at Wilson's window. Wilson states that Brown had his hand on Wilson's gun, which Wilson had pulled to "defend" himself. At some point, Wilson's attempted to discharge his gun two times, which failed, and again, a third time, wherein a bullet discharged.  Subsequent to that, Wilson was able to exit his vehicle, as Brown and Jackson ran away.

Wilson told his Sergeant he knew nothing about the Cigarillos, when he spoke with the Sergeant at the scene and afterward in subsequent months. Wilson reported he was doing a pedestrian check, when he initially reported his contact with Brown and Jackson. At no time did he mention responding to the stealing at the Ferguson Market. However, in his Grand Jury Testimony, and in subsequent various interviews, Wilson stated he heard the stealing call, and saw Cigarillos in Brown's hand.  He later testified that he not only saw the Cigarillos, but heard/saw Brown pass off the Cigarillos to Jackson while he and Brown were fighting through his Tahoe's window.  Wilson's story, throughout the grand jury testimony read by this writer, was vouched for, credited, and bolstered by the prosecutors who were presenting the case to the grand jury, purportedly to obtain an indictment.  Any witness decrying his version of the facts was treated skeptically at best, and discredited for the most part, by the prosecutors conducting the grand jury session. 

The physical evidence revealed Wilson shot his gun 12 times during his encounter with Brown, and the autopsy revealed Brown was hit with a bullet at least seven times. Wilson's gun held 13 bullets.  The autopsy revealed that Brown was shot three times in the right arm, (one of which is consistent with Brown running away from Wilson, depending on arm position while running) one time through the forehead in a downward trajectory, exiting in the right jaw, one time in the top of the head, in a downward trajectory, which lodged in the brain, and two gunshot wounds in the right chest/torso, which nicked the lungs. One of the shots that nicked his lung broke a rib, forcing the rib into the lower portion of the right lung. Either chest shot would have been debilitating and possibly fatal without immediate treatment.  The shot to the top of his head would have immediately made him unconscious and was fatal.

Wilson's grand jury testimony was, at times, unbelievable, but the most telling and concerning thing he said was that he was taught, as a police officer, to neutralize any threat.  He perceived Brown as a threat, so he was going to neutralize it.  He claimed to have assessed the triangle of force police are taught, in order to assess the amount of force he believed he could use, while he was allegedly tussling with Brown through the window of his Tahoe.  He, Darren Wilson, a 28 year old man, who was 6 foot 4 inches tall, and weighed 210 pounds, made the determination he could use deadly force, as he was allegedly fending off Brown, a 6 foot 4 inch, 292 pound eight-day-high school graduate, from the window of his Tahoe.  He claims Brown had both hands, and his upper body, in the window of the Tahoe, wildly swinging at him, and that Brown was "like a demon".   Wilson did not use his baton; he did not used his mace; he did not put his car in drive and speed forward to divest himself of Brown's wildly swinging arms to neutralize the threat.  Instead, he drew his gun, aimed it at Brown; it malfunctioned, so he took the time to fix it, and then shot at Brown. Brown then ran away. Wilson pursued him and shot 9 more times, killing Brown.  Yes, Wilson says Brown was turning around to "charge him".  Yes, Wilson says Brown had a "psychotic look".  Yes, Wilson says he was pursuing Brown to "protect the community".  However, Brown was running from him; other officers were in the area and on the way. Brown was not running toward people, assaulting them. He was not armed. He was not old enough to drink........

As this blogger stated, her perusal of the grand jury testimony is hardly complete.  A pause was taken due to the sheer amount of information and the sheer amount of patience and frustration it took this former prosecutor to sift through the interesting way in which the grand jury was provided information.  You know, when something is wrong; it's just plain wrong.  Did Michael Brown steal Cigarillos? The answer appears to be a resounding yes.  He should have been punished for that, upon due process of law, and a fair trial, with fair procedures.  Did Darren Wilson lawfully pursue Michael Brown with proper force?  The answer, to this old prosecutor, appears to be a resounding no. If the answer, under the law is truly yes, then the law is wrong.

The statutes allowing police to use force, even deadly force, in order to pursue an arrestee, are there for a reason. This blogger understands the danger police are in, and that communities are in, and appreciates those who give their time and pledge their lives in defense of those communities.  However, communities are not protected when cops think their objective is to "neutralize threats" instead of to "protect and serve" the public.  Neutralizing a threat is war speak.  The streets of hometown America cannot be, and should not be, run like a war zone.   The proverbial war on crime, or war on drugs, or whatever war is in vogue in this decade, is never won.  Perhaps, if we all tried to work and live together, rather than commit acts of war upon each other, we'd be happier, healthier, and proud to live in our society.  Isn't that a goal we should strive for in our land that was founded on individual liberties and protection from an overreaching government???   Or, is that goal just a part of the justice game?

*The opinions expressed are of the blogger only and were not intended as legal advice or as an avenue to open a lawyer-client relationship.

Wednesday, October 22, 2014

Leaving on a Jet Plane

rights of relocation; burden of proof

From John Denver to  Aerosmith - What's the deal with Relocation in Indiana?

** Kids - Custody - Relocation **

John Denver wrote a great song that has been remade over and over throughout the decades, a song providing a bittersweet request for a lover to wait.   Denver, and later, Peter Paul and Mary, and Steven Tyler all sang the refrain -- Leaving, On a Jet Plane...  You may wonder, what does this have to do with divorce and custody in Indiana?  Well, if you get a divorce in Indiana, you are definitely leaving your spouse, so the leaving part applies... Whether you get to leave on the proverbial jet plane, later, (to another area of the state or out of state) and retain the same type of custody of your kids is another matter, entirely.

In any initial custody matter, or post-divorce custody matter, the Court will look at the best interests of the children. If one parent desires to relocate to another area in the State or to another State, there is a requirement, pursuant to Indiana Code Section 31-17-2.2-1.   This type of notice must be provided during the initial custody proceeding or after, upon any relocating parent's desire to move over 100 miles within the State, or out of State.  Indiana Law requires the relocating parent to provide notice to the non-relocating parent about the intent to move, along with other statutorily required information regarding the move, at least 90 days prior to the time at which the relocating parent intends to move, with some exceptions.

The non-relocating parent has 60 days in which to object to the proposed relocation. If no objection is made, the relocating parent may do so and custody remains the same. If an objection is made, the relocating parent then has the burden of proof to show that the proposed move is being made in good faith and for a legitimate reason.  Should the Court sustain the non-relocating parent's objection and modify custody as a result of any proposed relocation, the Court must do so only after weighing the best interests of the child, and whether the relocation creates a substantial change in the child's life.  A non-exhaustive list of things a Court will review are the child's ties to its community, to the child's family in the area in which they live versus the area to which the relocating parent desires to move, the interaction between the child and the non-relocating parent, and the mental health and stability of all parties involved, etc.

Essentially, when there are kids involved, and you get a divorce, it's not as easy to take off, John Denver or Aerosmith-style. There are considerations to be made, and you'll need to consult an attorney, review the factors in your case, and ensure that you have a handle on what the pros and cons are of your proposed relocation.

While no court may restrict your right to travel, a Court may determine that you may not get to take your children with you on a permanent basis.  Indiana Courts will favor keeping the kids near family, friends, schools, etc.  In order to prevail on a relocation motion, when you have primary custody and want to take the kids on that jet plane with you, you must have good faith, legitimate reasons ... not just wanderlust, and definitely not a desire to prevent the non-custodial parent from seeing his/her kid...  Typically, a Court will want to see reasons that encompass family support, job and life advancement, and better opportunities for both the relocating parent and child(ren). 

All this being said, each case is individual, unique, and cannot be commented upon in a generalized blog entry.  You've got to ensure you have an attorney who will take the time to walk you through the relocation process and can evaluate the evidence in your case for and against relocation. 

*The opinions expressed are of the blogger only and were not intended as legal advice or as an avenue to open a lawyer-client relationship.

Wednesday, August 20, 2014

99 Problems - Part Two - Bad Boys - Bad Boys - Whatcha Gonna Do? Plus, a Ferguson Aside...

search and seizure, canine sniffNow, we've discussed Jay-Z's 99 Problems, so we'll move onto your problems, questions and concerns when and if a police officer were to stop you on the streets of Bloomington, Indiana, or any other Indiana town.  So, whatcha gonna do when the police approach you?  First of all, the information provided in Bloomington's pamphlet is neither all bad, nor all wrong. In fact, it is always a good idea to keep a level head and a calm, polite demeanor with the police. The sentiment behind the advice in the pamphlet is correct and good. As your mom may have told you, you catch more flies with honey. However, when dealing with the police, there is an extra, added aspect. You have constitutional rights. You have no obligation to allow the police to search you, your vehicle, or your home. While the police may obtain reasonable suspicion to search you for guns, or probable cause to search your car for illegal drugs, etc., you have no duty to allow or consent to any search. In fact, if you consent to a search, whether the police had the ability to search, or not, may not matter in later proceedings, as your consent allows them to do the search.  You may politely decline to allow a search, and if the police do so anyway, they will have to prove, if they find anything illegal on your person, in your vehicle or in your home, that the search was valid.

If you get pulled over for operating while intoxicated, you can elect to cooperate and undergo a blood alcohol breath test, or you can elect not to do so. Should you elect not to, your license may be suspended, as the pamphlet instructs, and you will not likely be treated well.  However, if you had been drinking, and you're beyond the legal limit, your license will be suspended anyway.  Thus, you may not be doing yourself any favors by cooperating in taking the breath test.  (However, if you do not consent, the police may obtain a search warrant for your blood, if they have probable cause to do so, and if your test is above the legal limit, and police have done everything correctly, you will not likely get a great plea deal from the prosecuting attorney's office.)

Thus, Bloomington's pamphlet does provide some good information, but in a manner greatly skewed in favor of the police.  This blogger believes any government agency, of the City, State or Federal government, should put out information in pamphlets that accurately and adequately depict rights, rather than skew them toward said agency. 

Part Two of this Blog series has taken a while. In the wake of #Ferguson, this blogger decided to take a break on discussing rights and the police. However, life goes on, and unfortunately, so does unrest in Ferguson, and elsewhere in the United States.  In an aside, this blogger, a former Missourian, would like to express sorrow and anger at the events currently occurring in the Ferguson area, and would like to send peace and healing thoughts to all involved.

In light of recent events, it is difficult to provide guidance on how to deal with daily encounters with the police. No police encounter is the same, and nothing each individual officer experiences in encounters with the public is the same. Just as the Bloomington police department apparently pledges to act with mutual respect, so should its citizens. However, mutual respect does not entail giving up rights that form the bedrock of our country.  Sometimes, we all become too involved in what is going on to remember that.

As the events in Ferguson unfold, this blogger sees reports of hurt and angry citizens reacting, sharing feelings and protesting, and other citizens taking advantage of the situation and resorting to looting and violence.  On the other hand, this blogger sees reports of law enforcement reacting sometimes in kind, attempting to ensure protesters and those grieving publicly are protected, but more notably and dangerously, acting with an extreme, militaristic stance.  Without being  at ground zero in Ferguson, this blogger cannot comment on the rights, wrongs, injustices, etc., but she can, with heavy heart say this, after several years of prosecutorial experience in the State of Missouri, there are many good officers who intend to do the right thing, as there are many good citizens in Missouri, trying to do the right thing, to express themselves, guarantee their rights, and live in what we all purport to believe is a free and equal society.  But, everyone is human and fallible.  No one makes the right choices every time, everyday.  And, in each segment of humanity, whether officers, attorneys, prosecutors, factory workers, Caucasian people, African American people, Asian people, or others of differing ethnicities, socioeconomic statuses, genders, religions, etc., there are those who will do wrong.  The 99 problems can be summed up into one - it's what we citizens do in the face of adversity that takes our measure.  Right now, our measure is not adding up in Ferguson, Missouri or other places around the globe.  Hopefully, the aftermath of this terrible turn of events will allow for significant discussion, reformation, and healing.

*The opinions expressed are of the blogger only and were not intended as legal advice or as an avenue to open a lawyer-client relationship.

Wednesday, August 6, 2014

99 Problems and the Cops May be One -- Bloomington v. Jay-Z -- A Two Part Series

bloomington, Indiana; southern indiana
Don't Let Confusion about your Rights be One

Part One -  Bloomington v. Jay-Z

The City of Bloomington, Indiana, in conjunction with the Commission on the Status of Black Males, recently published a pamphlet about Everyday Encounters with the Police.  This pamphlet prompted a return to blogging for this blogger.

The pamphlet, admittedly, has some good advice. It also has very skewed information that could be misleading to the citizens of Bloomington, hiding under the guise of official information. The City very carefully indicates that the pamphlet is not legal advice, but it comes from the City and very obviously has ties to the police department.

While some of the advice is good and advisable, much of it is misleading.  For the purposes of Part One of this series, this blogger only comments on good general advice provided.  That general advice provided by the pamphlet is essentially, be polite and courteous in dealings with the police.  Whether you are going to cooperate with the police in questioning, or not, doing so, or declining, in a manner that is non-confrontational, would reflect best upon you in any future proceedings.

In discussing rights when encountering police, a nod of the head to Jay-Z is in order, as his anthem, 99 problems, is actually another sort of "pamphlet" elucidating certain aspects of the Fourth Amendment regarding specific police encounters, like stops, searches and seizures, all of which are addressed in Bloomington's new pamphlet.  Like the City of Bloomington, Jay-Z gives some helpful insight, and sometimes gets it right. In fact, there is even a dated law review article analyzing the second verse of 99 Problems, attempting to use the music mogul's lyrics to loosely analyze the Fourth Amendment, exhibiting where Jay-Z gets it right, and where his theories depart from Fourth Amendment interpretation.

The moral of the story is, neither the City of Bloomington, nor the empire-building rap/hip hop music magnate provide an accurate depiction of your rights.  Your rights reside in the middle of the spectrum and are not as clear cut as either party would make them.  Stay tuned for Part Two of this Series, "Bad Boys".  In Part Two, this blogger will discuss your basic and general rights when encountering the police.

*The opinions expressed are of the blogger only and were not intended as legal advice or as an avenue to open a lawyer-client relationship.