Jodi Arias – A Few Questions (WARNING: GRAPHIC TO THE EXTENT IT CAN BE MADE SENSE OF)

Back when I was posting about this case, I noted one of the things that bothered me most:  how does Jodi Arias, all by herself, get the better of  Travis Alexander in a knife fight?

This seems all the more problematic when you look at what the prosecutor argued, according to Nancy Grace’s HLN:

GRACE: OK. Let`s go over the evidence. Beth Karas, what is the state`s theory as to how she could murder him? She`s a couple — a few inches shorter than him. She weighs less than him. What`s their theory?

KARAS: Their theory is that as she was taking photos with his consent, while he was showering, she got him to sit in the shower to take one last photo. And two minutes after that photo was taken, there he is, on his back with his neck slashed. And that`s an accidental photo that her camera took.

So the theory is she got him in a vulnerable position, started to stab him. He grabbed at the knife because he has defensive wounds of cuts on his hands. And then he stumbled around, hung his head over the sink, bleeding into the sink, spitting. That`s the spatter. He probably stumbled, and she`s stabbing him in the back nine, ten times.

As he`s stumbling down the hall, he falls at the entrance to his bedroom. She slashes his throat, three-and-a-half inches deep, severs the airway, turns his body around and starts to drag him back and stuffs him in the shower — shoots him in the head, though, before putting him in the shower.

If she doesn’t kill or incapacitate him immediately with the knife there will be a ferocious response, right?  I mean, she would certainly lose that.

Then there are these “accidental” photos.  One of the ceiling and this other very interesting one, below.  How does the camera take photos “accidentally”?  Wouldn’t someone have to be handling it, or at least touching it in some manner?  If there was no one else there, how can that be?

But let’s say the camera might go off and snap a picture if it’s bumped in the struggle.  That’s a stretch, I think, but let’s run with that.  How is the photo below taken?  How does the camera get in that position? Were there any other photos “accidentally” taken besides the one of the ceiling and this one?

And, what does this photo show?  I mean, really?

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It’s taken at 5:32:16 and the killing is in progress, obviously. But what, exactly, are we looking at?  What did the prosecution argue?  What did the defense argue?

From my perspective:  a) I cannot tell what part of the victim’s body is in the photo; b) I see what appears to be a leg and foot clad in a black leotard or stocking, upper part about the middle of the photo at the top, and extending diagonally downward towards the right with the foot apparently on or near the tile floor; c) I have absolutely no idea what I am looking at in the left part of the photo or what the blue stripe at the far left of the photo is.

I would appreciate any input from someone with more knowledge about the case than I am.

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Jodi Arias Review

Apparently the State of Arizona is still debating what to do about executing her.  For what it’s worth I do agree about one thing with Kirk Nurmi, Jodi Arias’ lawyer:  it’s never going to happen.

But first, a cautionary tale.

There’s a motion to dismiss because of prosecutorial misconduct, and some of the misconduct alleged is a doozy:  the defense alleges that the main investigating Detective on the case, named Flores, deliberately altered the hard drive of a computer in order to destroy exculpatory evidence and that the prosecutor knew about it.

Now, if this is true that should not only be the end of the death penalty but the end of the conviction and the end of the state’s case entirely.  And it would have seemed from reading the defense motion that there was pretty good cause to believe it was true:  they have a record showing that the computer was checked out by Flores for a three hour period on June 19, 2009, and that this was the same period in which numerous files on the computer were deleted:

“Specifically, recent Forensic Analysis has shown that between the times of 13:56:19 and 16:51:34 on June 19, 2009 that (sic) thousands of files were deleted from Mr. Alexander’s computer.”

And to drive the point home, the defense motion connects the dots:

Coincidentally, on June 19, 2009 at 13:56:19 Detective Flores took possession of the … computer to take it to “Forensic Services” and that (sic) on the same day her returned the computer from “Forensic Services” at 16:51:34.

Of course, the word “coincidentally” is used facetiously.

But then the critical error:

At the present time, Ms. Arias [her lawyer, really, but that’s how we write these things sometimes – ed.] does not know who “Forensic Services” is…..

This is probably something you should have some idea about before you go alleging prosecutorial misconduct of the magnitude being alleged in the motion.

So of course, I was anxious to see how the judge would deal with the startling and serious allegation in her ruling, and I didn’t see much of anything about it for about two readings and I thought:  “AHA! Another perfidious judge just ignoring evidence and argument that would destroy the State’s conviction!”

But, alas, on the third reading I overcame confirmation bias and spotted a sentence that explained what had occurred since the defense motion was brought:

On June 19, 2009, the laptop computer was turned on and accessed at the Mesa Police Department during a review – of – evidence meeting attended by attorneys representing the defendant. The case agent, prosecutor, and defense investigator were also present during that meeting

That’s right, on June 19, 2009 Detective Flores took the computer to a meeting where the defense lawyers and investigators were present – to review the evidence!

Oops.

The caution is this:  you should always have your ducks in a row when you present anything to the court.  Even if you do that, you won’t be infallible and there will be times you turn out to be wrong.  But if you’re accusing the prosecution of basically criminal misconduct, you had better make triple sure, and you don’t go alleging that when you don’t know what “Forensic Services” refers to.

Ugh.

Of course, it really shouldn’t matter.  The prosecution’s shift from “shot first” when that suited them to “shot last” when that did, is sufficient to overturn the guilty verdict.  But you have to make the argument and cite the case:  Pyle v. Kansas

Quiz for any budding criminal defense types, or even experienced CDL types:  explain why the Pyle case requires overturning the Jodi Arias conviction.  Answer in the comments.

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The NYPD Back Turning Backfire

You should read this article in full.  This situation is turning pretty ugly.

The subject of discussion is the police protest of the New York mayor by turning their backs on him as he gives a speech at the funerals of recently slain officers, and a directive from the police commissioner to the rank and file officers calling for this conduct to cease.  An officer who spoke on condition of anonymity:

“I did that because I feel Mayor de Blasio does not like cops, and I would never do anything to disrespect another cop or his family…“

“He cares about his boss more than the 35,000 cops he’s in charge of,” the cop complained.”

Then again, Sergeant’s Benevolent Association President Ed Mullins isn’t shy:

“If you’re the mayor and you have to direct the commissioner to respect you, it’s a total embarrassment for the office,” he said. “Are they going to order cops to go have dinner with him next?”

Then you have NYPD Captain’s Endowment Association President Richter*:

“We must work to honor Police Officer Wenjian Liu’s sacrifice at future services,” he said in a statement. “In this forum the appropriate protest is not a sign or turning away from mourners, or people the family has asked to speak, but rather cold, steely silence.”

So, the range of opinion among the New York police apparently goes from: a) protesting the mayor by turning your back; or b) protesting the mayor through “cold, steely silence”.  Because the mayor “doesn’t like cops”, which is pretty much a ludicrous assertion when you think about it.  It’s completely unnatural for a mayor not to like cops that are, after all, one of his most important political constituencies.  Liking cops is part of the mayor’s informal job description.

So, the real complaint could not be, and is not, that the mayor doesn’t like cops, but rather that he must not “like” cops enough.  How much is “enough”?  Apparently a whole lot.  Apparently it’s a very tough job to like cops as much as cops think you ought to like them when you are the mayor.  It may be an unattainable kind of like.  As in, a kind of worship.

I mean, I like cops.  I don’t worship them.

At this point, it’s hard to read this episode any other way than this:  the police commissioner and the mayor are seen as being insufficiently servile to collective police power and influence, and so the police collectively throw a hissy fit on the occasions of the funerals of of recently slain officers, using their deaths as an occasion to make a show of force against the mayor and commissioner.

And they are so convinced of their invincibility in all this.  It never seems to enter their mind that they are overplaying their hand, that they are coming to resemble spoiled children stamping their feet and holding their breath until they get their way.  They have gotten away with that too much to worry about it, and they are as yet unaware of the sea change that’s underway in much of the country.

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* What, do these guys have a separate “association” for every rank?

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2015 – Turning A Corner

We are currently reading an early and relatively obscure non-fiction effort by Christopher Lasch, likely not known or remembered by many reading here.  The title is “American Liberals and the Russian Revolution”.

Lasch was one of those brilliant guys who often become historians (as he was) and that command a kind of reverence even among intellectuals, and we’d venture there’s a specific reason for that:  he combined insightful analysis of historical facts with an encyclopedic knowledge of those facts.  Many very smart people can do one or the other, but not both.

Take us at Lawyers on Strike, for example.  If we can be permitted to indulge the supposition – solely for purposes of illustration, of course – that we are “very smart people” then we have a certain talent for analysis of facts but normally do not have a ready command of seemingly limitless facts, as Lasch seems to.  Lasch, in his trenchant work that (as we have already said) we are reading, rattles off the names of so many obscure figures, journalistic, political and otherwise, from the relevant period (app. 1917-1918) that it makes us dizzy.

But he is also, as we just noted, trenchant.

Nevertheless, we think he is perhaps missing something even as he alludes to it indirectly, over and over, in his analysis of the events he’s chronicling.  His basic thesis is that American liberals had a love-hate relationship with the Russian revolution when it occurred, which is fine as far as it goes, but he also points out somewhat less explicitly but quite clearly how very much the liberal intelligentsia of the United States of the era were in favor of the Great World War then occurring in Europe and overlapping with the Russian revolution.  And I think while he hints at it all the time, Lasch is missing this remarkable and anomalous fact – that ‘liberals’ in the US were rabidly pro-war – because he’s not taking a long enough view.  The long view – as in really, really long – is quite possibly the only real talent, if any we have, that we occasionally employ over here at Lawyers on Strike.

Which brings us to the point of this post.

The 20th century, for all of its virtues and many blessings and stunning scientific advances, was fundamentally a century of intellectual, moral and political chaos and incoherence in the western (also known as ‘developed’) world.  The west was making its definitive transition into its post-Christian phase, a phase that had been underway in earnest since the 19th century.  Liberals unreservedly welcomed this de-Christianizing development,* so much so that to the extent they saw its fruition as dependent upon the outcome of a world war they were prepared to support such a war.  And did.  We’re not sure Lasch quite grasped this in 1962 when he wrote the work we are reading, but we think he began to see it later in life.

And in much the same way that the American Civil War was indeed, and contrary to many facile and cynical interpretations, a war to end the institution of slavery, the great world war near the beginning of the 20th century was seen as being, and in many ways was, the final nail in the coffin of the Christian west, and the birth of the post-Christian west.  The post-Christian world-view had already taken hold across nearly every discipline among intellectuals by 1914, when the war began.  The war translated the intellectual and academic consensus into the practical reality, and the political mopping up operations spanned the remainder of the century.

The law, certainly, was not unaffected by all this.  In fact, in one of those ironies of timing that often characterize historical events the law was really reaching an apogee of benevolent (and a largely Christianity influenced) practical application even as these intellectual underpinnings were being suppressed and even eradicated.  Thus, in the 1930’s we had a genuine “due process revolution” where flagrantly indecent and uncivilized practices by state courts would be meaningfully reviewed and annulled by federal courts acting under the authority of the 14th amendment’s due process clause, something that had previously been thought to be a thoroughly radical practice.  For a brief period, our country’s even handed application of the laws and principles of justice improved – not just for that reason, but that was part of it.

By the early 1960’s, however, we experienced something that was actually called the “due process revolution” that really wasn’t.  Without going into too much detail about it again, this supposed revolution was really a distortion of the progress that had just been made, and wound up undermining and indeed eventually reversing that progress, ushering in an era of less institutional decency, less civilized institutional conduct.

Compare and contrast, noting well the difference 50 years makes.

But the pendulum swings.  It’s not terribly comforting to us here at Lawyers on Strike precisely because we take such a long view and are forced to recognize that the pendulum swing now underway is not principled or properly grounded; it is merely, in our opinion, a temporary recoiling from the effects of the damage previously done, not a real effort to address and repair the damage.  Nevertheless, the upshot is that we see 2015 as the beginning of a respite from what has been a relentless 30 year period of moral, intellectual and political regression in the United States, a regression that will no doubt resume as soon as the swing has panned out – unless something unexpected changes.

We know not, of course, how long or how far this respite may extend.  But we welcome it, if only because we are tired.

So we don’t agree with Radley Balko, although we give him a lot of credit for the fact that the pendulum is swinging at all.

Happy new year, everyone.

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*  While it is true that we lament the de-Christianization of the west overall and that this is a kind of bias, we do not believe that the fact of it is really subject to dispute.  We would posit, moreover, and for what it is worth, that some aspects of the west’s de-Christianization are lamentable for cultural and intellectual reasons, not just moral or religious preferences.  In other words, an honest atheist or a pagan could be, should be, and probably is saddened by some of the consequences of the de-Christianization of the west.  But this is only our opinion, of course.

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Anecdotal Proof

Here’s an interesting exchange, and a stark contrast, in comments over at Gamso’s blog, about estimating the error rate of the criminal justice system:

Prosecutor type says this.

Scott Greenfield says this.

For what it’s worth, my estimates, mostly based on experience from years ago, and SHG’s are almost exactly the same.  But there isn’t universal agreement on this.  I know criminal defense lawyers who would be more in agreement with the prosecutor type.

What accounts for the difference?  Mindset, apparently.  Like me (I think), SHG is the kind of person who could never be a prosecutor even though I believe at one time, a long time ago, he was a police officer.

Well, maybe I shouldn’t say never.

In my own case, it’s not that I have any moral objection to prosecuting.  It just seems my efforts are far more needed elsewhere, and that there are all kinds of others lined up to do the prosecuting.  It’s a much easier job, for the most part.  And I also have an aversion to ease.  Maybe I’m compensating for something.

But I digress.

Let’s put it another way.  It would be hard for a prosecutor, well knowing that conviction rates are north of 95%, to live with himself unless he believed what the prosecutor type believes.  So his anecdotal belief is consistent with maintaining a positive self-image, or self respect, or maybe even self-preservation.

But it isn’t necessary in any personal sense for SHG – or me for that matter – to believe that overcharging and wrongful convictions are much higher than the prosecutor type believes.  In other words, as between the two competing takes on things it is SHG’s and mine that is more likely to be a dispassionate and objective appraisal.

Anecdotally speaking.  Because the Bureau of Justice statistics is never going down this road.

Beyond anecdotes, however, I would note (no link right now, but I certainly don’t mind if someone else finds it and brings it to my attention) that some years back when there was a sufficient sample of DNA exonerations the Innocence Project published something indicating that the rate of wrongful convictions was pretty much completely in line with SHG’s and my estimates.

So there’s that, then.

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This Isn’t Helping

Quite in contrast to Mayor Warren’s measured and thoughtful statement, some others among the New York City Police Department seem eager to aggravate things.

Let’s just note a few things from the article.

First, the Vice President of the United States was there.  That’s preposterous.  Or at least, it should seem preposterous even though it probably doesn’t to most people because we’re so used to political posturing.  But fundamentally, the VPOTUS is not in the NYC police chain of command and has no place in any of this.

Really, the highest official standing over the NYC Police Department is the the Mayor of New York City.  And he’s the one the police turned their backs on.  At a funeral.  Not a good time to express one’s political opinions, I should think, but the police have had so much political clout for so long they’ve become tone deaf.

In any case, did the Vice President attend Eric Garner’s funeral?  Michael Brown’s?  Of course not.  When protesters chant that “black lives matter” they are pointing out the disparity in treatment of these recent casualties in the street wars.  Whereupon the politicians immediately serve up some more disparity.

Note also:  police officers from around the country, and Canada, were in attendance.  Is this a show of support, or a show of force, and influence, and clout?

At some point there are diminishing returns.  I don’t think anyone needs to be reminded that the police outgun the rest of us.  This seems more a part of the problem than the solution.  In context, it doesn’t matter that much:  the well armed SWAT team members are not tempting targets; two regular beat cops sitting in their car not expecting an ambush are.  The price of the escalating rhetoric and the demonstration – once again – that the “law enforcement community” will have its way is paid by the more vulnerable of the group.  I guess that’s how it usually is.

There are personalities that are apparently oblivious to how this all works.  These personalities are common among police but not at all confined to them.  Nevertheless, we have noted before certain prominent law enforcement examples of – well, what shall we call it?  The will to power, I guess – such as here and here.

Probably part of the reason they are oblivious is that, as we noted in those previous posts, there’s something “hidden” about the costs, and I put the word in quotation marks because I don’t really think these things are obscure to normal grownups, just to nominal grownups who have never really grown up, and who continue to believe that life is really about getting what you want, having your way, bending the world – and others – to your will.

Banishing this mindset from polite society is a lot closer to what is needed than petulant back-turning maneuvers.

Again, Lovely Warren has it right.

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Lovely Warren Is Right

Somehow, even a municipality as inept as Rochester, New York should be able to capitalize on having a Mayor named “Lovely”.

At least she’s doing her part:

Here in Rochester, we already know the pain of one of our police officers being killed. The situation in New York City is a reminder of that pain. We also know the pain of losing loved ones to acts of violence.  My thoughts and prayers are with the families of these brave officers. My prayers are also with the families that lose loved ones on our streets. These killings are senseless.

The taking of any life is wrong. Perhaps now, during this holiday season, it is important that we stop and reflect on what loving each other is all about; for that is who we should be.

During the First World War, in the celebration of Christmas, armies of all nations are said to have come out of the trenches to sing carols together. War stopped and men embraced each other. It was a truly a miracle and life lesson for us all.  We can experience that miracle again.

As we celebrate the holiday season with our children, families and friends, we shall embrace the lessons of love and caring for others. Let us reflect on a message of peace, love and hope.”

I reproduced the statement here because wordpress informs me that few if any of you ever click the links.

I think the reference to the WWI Christmas truce – not that it matters what I think – is quite apt, although I’m sure others will point out its more dramatic and ominous implications.  I think her tone is just right.

A lot of people don’t seem to like Lovely Warren as Mayor of Rochester.  I’m not among them.  She’s got something, if you ask me.

Today is the winter solstice.  The length of the days is bottoming out and I hope the same is true for the unrest that followed in the wake of Ferguson and that last night apparently resulted in the calculated murder of two police officers in Brooklyn.

I don’t know if I can say anything helpful to anyone about any of this at this time.  Patrick Lynch of the Police Benevolent Association has no doubts, though:

“There’s blood on many hands tonight,” PBA President Patrick Lynch told reporters outside Woodhull hospital, minutes after the two officers’ bodies were removed by ambulance amid a silent salute by about 100 police officers. “That blood on the hands starts on the steps of City Hall in the office of the mayor.”

I guess there are some who believe that the Mayor of New York is insufficiently supportive of the police.

Meanwhile, MSNBC reports as a “bombshell” the news we discussed on this blog almost a month ago.

To be fair, what they are calling a “bombshell” is not the fact that one or more of the witnesses lied in front of the Grand Jury, but rather the fact that the prosecutor now admits it.  And this is the media pattern:  it isn’t true unless you have “official” confirmation.  It doesn’t matter how obvious the evidence is on its own.

At some point the role of the press and the judiciary and the legal profession in the deaths of the two officers in Brooklyn will warrant some discussion.

But not today.  I don’t have the mega-certainty of PBA’s Patrick Lynch, or the political agenda either.  I happen to know a good many police officers, including some who have been shot on the job but not killed, and I don’t think today is a day for soapboxes.

Like I said, I think Mayor Warren has it right.

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