Another case of a lying cop tripped up by surveillance camera

Yet another cop has been tripped up by a surveillance camera, this time in Windsor, Canada.  The video helped the turn the tables on the officer.  The victim, a blind doctor, was originally charged with assaulting a police officer — even after police had an opportunity to review the video.

Watch the video here:  http://www.cbc.ca/video/watch/Embedded-Only/News/ID=2228000905

According to CBC news:

CBC News has obtained video that shows a Windsor, Ont., police officer beating a doctor who is legally blind.

Det. David Van Buskirk, who attacked Dr. Tyceer Abouhassan on April 22, 2010, pleaded guilty Thursday to assault causing bodily harm.

Video cameras at the Jackson Park Health Centre captured the beating, although much of the physical altercation is slightly out of frame. Afterwards, Van Buskirk wrote in his report that the doctor “”immediately reached out and grabbed my throat and pushed me backward.”

In pleading guilty, Van Buskirk admitted that Abouhassan “did not strike him at all.” He also confirmed that all of the doctor’s reaction “was in lawful resistance to being assaulted by the accused.”…

Abouhassan, who is legally blind, suffered a broken nose, bruised ribs, a torn eyelid and detached retina in the beating.

Adding insult to injury, he was subsequently charged with assaulting a peace officer following the initial investigation by Windsor police, including Det.-Sgts. Paul Bridgeman and Patrick Keane.

Bridgeman watched the video between eight and 10 times before endorsing assault charges against Abouhassan, according to the office of the independent review director.

Both Bridgeman and Keane were charged with discreditable conduct for trying to prevent Abouhassan from filing criminal charges against Van Buskirk. Both were later exonerated.

Falconer said this case is the poster child for the failure of the police disciplinary hearings and a huge embarrassment for Windsor police.

“This was a vicious beating of an innocent doctor-turned-cover-up-turned-conspiracy, pure and simple. And our discipline apparatus couldn’t do a thing about it,” Falconer said.

Abouhassan has filed a lawsuit seeking more that $14 million in damages from the Windsor Police Department, seven of its officers and Smith, the former chief.

Van Buskirk is due to be sentenced on the assault charge Wednesday. Acting police chief Al Frederick has reserved comment until then.

This is just more evidence that power corrupts and that citizens need to have the legal right to video-record police — a right that we currently do not have in Illinois (video-recording the police while in public and on duty in Illinois is punishable by up to 15 years, even though the police can record you).

 

Update: Orson Charles drafted by Bengals despite DUI charge

Orson Charles

Back in this post, I told you that University of Georgia star tight end Orson Charles had been arrested for DUI.  At the time, I stated that he was rated by some as the top rated tight end in the upcoming draft.

Well, Mr. Charles was not the first tight end in the draft.  And he didn’t get picked in the second round, like many had expected, at least before his DUI.

However, he was drafted by the Cincinnati Bengals in the fourth round, who always seem to have a roster full of players in trouble with law, including in the past year Cedric Benson, Adam Jones, Jerome Simpson and Ray Maualaga.

Also in the draft, former Notre Dame receiver Michael Floyd was picked with the 13th pick overall in the first round by the Arizona Cardinals, despite a DUI in March of 2011, and former Penn State offensive guard Johnie Troutman was drafted by the San Diego Chargers in the fifth round, despite a DUI in February of 2011.

In addition to drafted players, the New York Jets are considering bringing back receiver Braylon Edwards, who is a free agent, even though he was arrested for a DUI while with the Jets in September 2010 while on probation for a disorderly conduct case.

Also, Arlington County police denied that ex-Bear Brandon Meriweather received any favorable treatment during last Thursday’s DUI arrest.

Chicago says the police won’t arrest you for videotaping them during the NATO summit — but will they anyway?

According to the Chicago Tribune:

Chicago’s corporation counsel said Friday that police “do not intend to enforce” the state’s controversial eavesdropping law during next month’s NATO summit, the city’s first public acknowledgment of the logistical difficulty and potential legal pitfalls of trying to bar people from recording police officers.

The decision is the latest blow to the statute, one of the strictest such laws in the country, and comes just weeks before thousands of demonstrators armed with smartphones and video cameras are expected to descend on the city during the May 20-21 summit.

Some people who plan to protest had said they were worried police might use the law to arrest protesters who otherwise weren’t breaking any laws. They also were concerned that many protesters, especially those from other states, wouldn’t be aware of the law.

The law, which carries sentences of up to 15 years in prison if a police officer is recorded without his or her consent, has been under fire in courts and the state Legislature in recent months. Uncertainty about the law’s future and the difficulty of enforcing it during summit protests contributed to the city’s decision, said Steve Patton, the city’s corporation counsel.

“I think it is a recognition that while the law is still on the books, it is currently being constitutionally challenged, coupled with the fact that the police are going to have other things to focus on during the summit,” Patton said.

Police Superintendent Garry McCarthy has previously said he doesn’t object to allowing people to record police working in public.

When asked Friday if officers have been or will be told not to enforce the eavesdropping law, police spokeswoman Melissa Stratton issued a statement saying the department “feels its focus is better spent on ensuring a safe and secure NATO summit for residents, attendees and those who wish to exercise their First Amendment rights.”

Officials at the Cook County state’s attorney’s office had discussed the issue with the city but were not aware of the decision until they were notified by the Tribune on Friday, spokeswoman Sally Daly said. Despite the city’s decision, prosecutors will handle any potential eavesdropping arrests during the summit on a case-by-case basis, she said…

But Jon Ziegler, who videotapes events for Occupy Chicago and other social movements and streams them on the Internet, said he’s skeptical that the city’s decision will prevent officers from confronting protesters who record them during the summit.

“It doesn’t really change my strategy, said Ziegler, 32, who lives on the North Side. “I still feel that if any officer doesn’t want you to film them and they want to arrest you because of it, they’ll do it anyway and come up with the charge after the fact.”

 

So let me break this down for you:

1.  The corporation counsel does not prosecute Chicago felonies; the Cook County State’s Attorney does.

2.  The Cook County State’s attorney has not been officially notified of the Chicago Corporation Counsel’s position on this, nor would it be binding on them if they were.

3.  By the way, from what I am hearing, they will be bringing in state police and police from outside Chicago to deal with protesters.  The Chicago Corporation Counsel has no power over any of them.

4.  When asked whether Chicago police officers have been told that they are not to enforce the eavesdropping statute, the police spokesperson gave a weaselly non-answer instead of a simple yes or no.  I take that as a “no.”

5.  Speaking of weaselly statements, the Chicago Corporation Counsel merely stated that Chicago does “not intend” to enforce the law.  What the heck does that mean?  That they reserve the right to change their mind on a case by case basis?  So if an officer doesn’t like the looks of a protester, he or she will be free to arrest him based on his own whim?

6.  Nothing here prevents a Chicago officer from using his or her own “discretion” to arrest anyone for a violation of the eavesdropping statute.

7.  If so, nothing said here prevents the Cook County State’s Attorney from prosecuting someone and seeking 15 years in prison for video-recording police during these protests.

There has been way too much hype and freaking out over the expected protests.  I have been told not to expect any trials or hearings throughout Cook County the week of the protests, because police and state troopers, not just in Chicago, but all over Cook County, plan to be on full alert to combat unruly protesters.

This is a recipe for disaster.  And I bet many of these cops do not want to be video-recorded in case they feel the need to bust some heads.

This sorry state of affairs is brought to you by our cowardly legislators, who voted against the proposed amendment to the eavesdropping statute which would have allowed citizens to record police in public during the course of their duties.  Of course, this vote occurred a couple of days after the primary election.

Ex-Bear Brandon Meriweather arrested for DUI

NFL safety Brandon Meriweather, who spent last year with the Bears, was arrested for DUI by Arlington County, VA police around 3:00 a.m. this morning for DUI.  He is alleged to have failed field sobriety testing and refused a breath test.  He is presumed innocent until proven guilty.

Meriweather signed a two year contract with the Redskins in the off-season.

Second-guessing Zimmerman’s defense attorney

Now it is time for me to second-guess George Zimmerman’s defense attorney.

Was it a smart move for Zimmerman’s attorney to have put his client on the stand?

Knowing how it turned out, you might think it was good strategy.  Remember, it was a bond hearing.  Prior to the hearing, Zimmerman had no bond.  He was charged with second-degree murder, with the possibility of life imprisonment.  Usually in Florida, this is a no bail situation.  So, there was a good chance Zimmerman would remain in custody for the time being unless something dramatic happened.  And, at the end of the hearing, the judge did in fact grant Zimmerman a bond.

So Zimmerman’s defense attorney, Mark O’Mara, did a great job, right?

But did putting Zimmerman on the stand have anything to do with the judge’s ruling?

My reading of the judge’s decision to set a bond was that it was based on a few factors: (1) he felt that the facts of the case did not rise to second degree murder; (2) Zimmerman had no significant criminal background and there is not a significant likelihood that he will commit another violent offense while on bond; and (3) he was not a flight risk; particularly since he will be placed on home confinement as part of his bond.

Clearly, point (1) was the key.  The photograph of Zimmerman’s bloody head, plus the lack of strong evidence to show that Zimmerman intended to hurt Martin when he exited his vehicle, tend to indicate that this case will either resolve on a lesser charge such as manslaughter or reckless conduct or that Zimmerman will be found not guilty under Florida’s “stand your ground” statute.

But, did the statement help?  Unlikely, since the judge did not mention it in his ruling.

Did the statement hurt?  Yes.  Zimmerman has now stated that he is “sorry” that Martin died.  This admission can be read two ways and both of them are harmful to his defense: (1) he said that he is sorry which can be interpreted as an admission of fault; or (2) he made a limited and narrow “apology” for self-serving reasons but really is not apologetic about his actions and his refusal to accept blame is evidence that he is a sociopath.

Furthermore, his admission that he did not know if Martin was carrying a weapon at the time undercuts his defense of self-defense, which requires a reasonable believe that he was in jeopardy of death or great bodily harm.  As I said yesterday, his attorneys should breathe a sigh of relief that the prosecution didn’t ask any questions about that.

Worse, during cross-examination he provided answers about previous statements, which, if contradicted by police officers, can be used at trial as impeachment.

As I have indicated in my last blog post, it could have been a lot worse had the prosecutors done a better job of cross-examination.

The only positive (for the defense) that I see to come out of this is that by showing some empathy for the Martin family, Zimmerman may have helped himself in the court of public opinion, with potential jurors, and maybe with the Martin family.  However, my guess is that while his semi-apology will help with a certain percentage of the population, it will hurt with the majority.

So ultimately, I see the decision to put Zimmerman on the stand as a big mistake:  the defense took a big gamble for virtually no gain.  Just because they did not get burned does not make it a better decision.  Of course, it is easy for me to say; I am not the one sitting in shackles and facing being in jail for the next 12-24 months waiting for trial.

Putting Zimmerman on the stand was a reckless decision; and that is not the type of decision-making that is acceptable for an attorney when defending a client against a possible life sentence.

Second-guessing the Zimmerman prosecutor

As I am sure you are aware, last week, in an unusual move, George Zimmerman took the stand at his bond hearing and made the following statement:  “I wanted to say I am sorry for the loss of your son.  I did not know how old he was. I thought he was a bit younger than I am, and I did not know if he was armed or not.”

Because he took the stand, the prosecution was allowed some limited cross-examination related to the statement.  Zimmerman’s attorney’s should thank their lucky stars that the cross-examination was ineffectual because the prosecutors made a cardinal mistake: they didn’t listen to what he just said.

They crossed examined Zimmerman about why he was making an apology now, at the bond hearing, and not before.  They tried to get into things he said, or could’ve said but didn’t, on earlier occasions or during police questioning.  But the judge cut them off, because the questions weren’t limited to Zimmerman’s statement.

What I am about to say is truly “Monday morning quarterbacking” — actually Tuesday afternoon quarterbacking in this case — and is a little unfair, since this is based on reflection, not while in the courtroom, in the moment, with the knowledge that the hearing is being broadcast live throughout the world.  But you are reading this blog for my thoughts, not for fairness.

If I was the prosecutor…

Since the judge would only allow me to focus on Zimmerman’s statement, that is what I would have done:

First I would focus on the admission of being “sorry,” but only for the Martin’s loss:

-You say that you are sorry for the Martin’s loss of their son?

-Does that also mean that you are sorry for your actions that lead to the loss of their son?

There is good chance that the judge would cut me off with that question, but if not, I would try for this:

-Does that mean that you take responsibility for your actions that lead to the loss of their son, Trayvon Martin?

-Does your statement that you are sorry mean that you agree that your actions were preventable?

-Does your statement that you are sorry mean that you agree that your actions were wrong?

Or, I would see if I could guilt Zimmerman into expanding his “apology”:

-Since you do not apologize for your actions, does that mean that you don’t feel sorry for what you have done?

-Would you like to also tell the Martin family that you are sorry for confronting Trayvon while carrying a firearm?

And so on, with details, such does your statement mean that you regret following Mr. Martin?

Next, I would ask Zimmerman about why he felt it was important to explain about his mistake regarding Trayvon’s age.

But, really, all those questions would just be in the hopes of getting Zimmerman riled up, off his game, and defensive.  The real questioning would be about the last part of his statement, that “I did not know if he was armed or not.”

This is the statement that jumped out at me.

Remember, the only justification for Zimmerman’s use of deadly force is that he was defending himself because he had a reasonable belief that it was necessary to do so to prevent death or great bodily injury.

The Florida “stand your ground” statute states:

“A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.”

So when Zimmerman admitted that he did not know whether Martin was armed or not, he just shot a giant hole into his defense.

So, were I in the prosecutor’s position, I would have leapt at the chance to expand on that:

-Mr. Zimmerman, you said that you did not know if Mr. Martin was armed?

-In fact, you did not see Mr. Martin carry any weapons?

-You did not see him carry any object that could be used as a weapon?

-Mr. Martin did not display any weapon?

-Mr. Martin did not reach for any weapon?

-Mr. Martin did not tell you that he had a weapon?

-Mr. Martin did not threaten you with a weapon?

And so on.

If this line of questioning were allowed, it would have significantly damaged Zimmerman’s defense.

Next, second-guessing the defense attorney.

Inquiry: Has Will County Judge been viewing porn while on the bench?

Today’s Chicago Sun-Times revealed that the bench computer assigned to Will County Judge Joseph Polito was repeatedly used to access porn web sites. According to the Sun-Times,

Among the 243 porn websites somebody using Polito’s county computer account attempted to access are chubbyparade.com, hugeheavybreasts.com, bigbras-club.com, portofdebauchery.com and teenagesextape.com.

Many of the websites have names that can’t be printed in a family newspaper. Several suggest an interest in masturbation and large breasted women. Others cover specialty interests including office sex and older women.

…The list covers a six-month period beginning in late 2010. It shows that someone using Polito’s county computer account attempted to view porn on five days in January and April last year.

Polito, who was appointed an associate judge in 2006 and has a computer on the bench of his third-floor courtroom, was assigned as a “floating judge” at the time, records show. He handled traffic, small claims and forfeiture hearings on the days his account was used to try to view porn.

…[Will County Chief] Judge Kinney disagrees that the alleged porn use had any effect on Polito’s work. The chief judge said there was “no evidence that there’s been any impact on [Polito’s] ability to serve the community as a member of the judiciary.”

In a vaguely worded statement he released with the other Will County Circuit Court Judges, Kinney added that “appropriate steps have been taken to address any underlying issues that led to this behavior.”

 

His Honor has a lot of explaining to do. Whoever was using a county computer to access porn deserves to lose his or her job, immediately. The public deserves a statement from Judge Polito, now, and not from his lawyer. Judges are expected to conform to a higher level of probity and professionalism than other public servants, and every day that Judge Polito remains on the bench without providing a response to these charges is an insult to his colleagues on the bench, the judicial system and the public.

New Rule: Illinois Jurors will be allowed to ask witnesses questions in Civil Cases

Effective July 1, 2012, jurors in Illinois civil cases will be allowed to ask questions of witnesses, under new Supreme Court Rule 243.

The Rules states:

243. Written Juror Questions Directed to Witnesses

(a) Questions Permitted. The court may permit jurors in civil cases to submit to the court written questions directed to witnesses.

(b) Procedure. Following the conclusion of questioning by counsel, the court shall determine whether the jury will be afforded the opportunity to question the witness. Regarding each witness for whom the court determines questions by jurors are appropriate, the jury shall be asked to submit any question they have for the witness in writing. No discussion regarding the questions shall be allowed between jurors at this time; neither shall jurors be limited to posing a single question nor shall jurors be required to submit questions. The bailiff will then collect any questions and present the questions to the judge. Questions will be marked as exhibits and made a part of the record.

(c) Objections. Out of the presence of the jury, the judge will read the question to all counsel, allow counsel to see the written question, and give counsel an opportunity to object to the question. If any objections are made, the court will rule upon them at that time and the question will be either admitted, modified, or excluded accordingly.

(d) Questioning of the Witness. The court shall instruct the witness to answer only the question presented, and not exceed the scope of the question. The court will ask each question; the court will then provide all counsel with an opportunity to ask follow-up questions limited to the scope of the new testimony.

(e) Admonishment to Jurors. At times before or during the trial that it deems appropriate, the court shall advise the jurors that they shall not concern themselves with the reason for the exclusion or modification of any question submitted and that such measures are taken by the court in accordance with the rules of evidence that govern the case.

Adopted April 3, 2012, eff. July 1, 2012.

I think this is an important rule change and can only help to assist jurors in their role as fact finders, by allowing them to get additional answers to questions that may not have been asked by the attorneys, either by inadvertence or intentionally.

In talking with jurors after a trial, I often find that they have many good questions that went unanswered.  Heck, often the attorneys kick themselves because they forgot to ask something.  When you add twelve more people into the mix, someone is bound to come up with a good question that could be helpful in resolving the case.

Note that the jurors’ questions are subject to objections, just like any question posed by an attorney.  This is because many questions that a layperson would ask would not be allowed at trial.  Such questions could lead to the jury basing their decision on facts or sentiments that are not directly relevant to the case.  It was wise to require that these objections be heard outside the presence of the jury.  That way, an attorney can feel free to make his or her objections without worrying that his or her client will be penalized for “blocking” someone’s question.

I am told that juries have been allowed to ask questions in other jurisdictions, generally with good results.  I am curious to see how this works out in Illinois.

Any thoughts?

Other attorneys sometimes leave me dumbfounded…

The other day I was in a misdemeanor court, and I saw something that left me dumbfounded.

This involved watching an experienced attorney and former judge, who has roughly 40 years of experience.  He walked into the courtroom, and obtained a plea offer for his client from the prosecutor.

Several minutes went by as the prosecutor prepared the sentencing orders, this attorney prepared a jury waiver, and the clerk tallied up the fines and costs.

I was standing in a line of attorneys waiting to speak to the prosecutor while all this was happening.

After all the paperwork for the plea was ready, the prosecutor opened up his file and handed the attorney the police reports and a DVD which presumably contained a dash camera arrest video.  The attorney grabbed the documents and without even looking at them, told the prosecutor he was ready to get the case called.

In other words, this attorney had agreed to plead out his client without having even looked at the reports or the arrest video.

Now, I must say in all fairness that there are some cases where I know before entering the courtroom that the case against my client is looking very strong and the likelihood of a plea is high.

But still, no matter how bad the facts may be, it is legal malpractice to plead your client out without having at least reviewed all the discovery, and to verify that the officer did not make some lapse and that there isn’t some technicality that can be used to my client’s advantage.

Reading the police reports is the minimum that you should expect of your attorney.

I am still shaking my head.