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Archive for May, 2017

Bill Cosby Goes to Trial and Just Might Win

Monday, May 22nd, 2017

BillCosbyJury selections started on Monday, May 22 in the criminal case of Bill Cosby.  Cosby is charged  with aggravated indecent sexual assault in the case of alleged victim Andrea Constand.  Constand alleges that in either January or February of 2004 that Cosby drugged her and then sexually assaulted her.  The State’s Attorney filed charges within days before the statute of limitations tolled or ended any possible charges being filed. Since then, Cosby has become a pariah with most persons including his former celebrity friends shunning him and judging him guilty of Constand’s assault and those of 60 other alleged victims.

 

On June 5, 2017, Cosby will only face the charges of Constand.  The other alleged victims’ cases statute of limitations expired.  So those women mostly place their hopes in Constand that justice will be served in her case—thus vindicating the others who can’t press charges.

 

Constand’s case is far from a slam dunk. In reality, it faces many uphill climbs to reach a guilty verdict.  The previous State’s Attorney declined to press charges stating insufficient evident. That’s legal buzz words for cannot be proven in a court of law beyond a reasonable doubt.

 

So why did another State’s Attorney decide to pursue charges?  And does the case have sufficient evidence for a conviction?  As in all sexual assault or rape cases, multiple problems exist. Most cases, as the present one, rest on the strength of the victim and her account of the events.  The defendant cannot be compelled to testify and usually remains silent.

 

Andrea Constand will need to give the victim performance of all time to secure a conviction.  Cosby, age 79  and apparently blind, is charged with three felonies of aggravated indecent assault which carries 10 years for a maximum of thirty years, if convicted on all counts. At Cosby’s age, a conviction would amount to a death sentence for the comedian and former actor.  Cosby has called the trial a “public lynching” and alleges consensual sex.

 

The alleged facts surrounding the case are murky.  Constand alleges that in either January or February of 2004 she went to  Cosby’s house.  She had been to his house on two prior occasions where he allegedly tried to hit on her.  At the time, Contand was working for Temple University in the athletic department. And Cosby was an icon at Temple. What transpired on the alleged night of the incident, only the two of them know for sure.

 

One thing is for sure, Constand waited one year before alleging that Cosby sexually assaulted her.  She couldn’t remember the exact date—only January or February. In the interim, Cosby sent her tickets to his show in Canada.  She attended with her parents and brought him a sweater as a gift.  And she even went back to his house again after the alleged incident. She alleges that it was to confront him.

 

Cosby on the other hand testified at a deposition that he used to give women Quaaludes before having sex with them.  That testimony, part of his deposition in another case, will be allowed—although Quaaludes ceased manufacturer long before 2004. The jury will not be told that Cosby settled the civil case involving Andrea Constand. The testimony of one other woman who alleges Cosby assaulted her in the 1990’s will also be allowed.

 

Jurors are coming from the Pittsburgh area and will be sequestered once the two week trial begins outside of Philadelphia—where the alleged incident took place. It’s hard to fathom a prospective juror who has not heard of Bill Cosby or has an opinion on him.

 

I don’t think the case will rest on what jurors think or know about Cosby—as much as what the victim’s testimony will be.  Most cases are won or lost on the type of jury that is selected. If those members of the jury are inclined to base their verdict solely on the evidence as they will be sworn to do, it may end up a not guilty verdict—due to the what some may conceive as inconsistent behavior of the victim. If the jury wrongly factors in the other 60 women, it may be a guilty verdict—as those jurors will likely believe he did something criminal, even if not something criminal to Andrea Constand.

 

Stay tuned for updates as the trial testimony starts on June 5.

 

Washington, DC based Debbie Hines is a trial lawyer, legal analyst and former Baltimore prosecutor. She has prosecuted sexual assaults and defended those accused of sex crimes.

 

 

Blacks Go to Jail for Killing Dogs; Whites Stay Out of Jail for Killing Blacks

Thursday, May 18th, 2017

Black-Lives

I was on Twitter last night when I found out that Tulsa Police Officer Betty Shelby had been acquitted for killing Terence Crutcher, an unarmed Black man.  There have been so many police killings of unarmed Blacks with so few charges brought or guilty verdicts that I have become numb.  But yesterday’s verdict of Tulsa police officer Betty Shelby struck a raw nerve.  As a former prosecutor, I respect law abiding police; I detest those officers who lack the temperament, skills and self-control to wear a police uniform.

 

Terence Crutcher is just the latest unarmed Black victim in a decades long string of Black victims killed at the hands of police without justice.  On September 16, 2016, Betty Shelby stated she fired her gun killing Terence Crutcher out of fear.  That is the standard response by police officers used in these cases.  It’s as if it’s in their police training manual of what to say when you shoot and kill a Black person.  Nine white jurors and three Blacks evidently believed her version.  Crutcher had his hands up when he was shot by Shelby, as evidenced on two videos.

 

After the trial of former police officer Michael Slager, I have come to believe that most police officers can get away with murder of blacks with impunity.  With a video and a bystander filming and watching on, a jury could not reach a unanimous verdict in Slager’s trial.  Slager was caught on tape shooting Walter Scott in the back as Scott ran away. Slager gave the same verbatim response as Shelby that he feared for his life.  How one fears for his or her own life as the perceived threat is fleeing –defies logic.  A jury trial ended in a mistrial.  Slager later plead guilty to federal civil rights charges, thereby avoiding a re- trial and a state trial. He will be sentenced later this year.

 

And then there’s the other side of the coin.  Blacks receive jail sentences for killing dogs or stupidly and accidently shooting themselves. NFL quarterback Michael Vick was sentenced to 23 months in prison for harming and killing dogs.  And former NFL player Plaxico Burress received a two year sentence for accidently shooting himself while at a night club.  Due to New York’s stringent gun laws, Burress likely pled guilty.  With both being black, Vick and Burress also likely pled guilty due to the likelihood of a guilty verdict against a Black man, if tried.  A jury will more likely render a guilty verdict against a Black man for killing a dog or almost killing himself that against a white police officer for killing an unarmed Black.

 

While I am not a Black man, I fear for all Blacks who encounter a police officer under circumstances that a white police officer can assert his fear.  That’s just about any circumstance imaginable.  Racial disparities exist in the killings of unarmed blacks versus whites.  According to statistics, African Americans killed by police are more likely to be unarmed than whites.  In 2015, 40% of all unarmed persons shot and killed by police were Black men. Yet, Black men make up only 6% of the U.S. population.

 

I would like to end on a positive note. But I am outraged at the constant loss of unarmed Black lives by police officers who cower under the guise of  their own innate racism.

 

 

Washington, DC based Debbie Hines is a trial lawyer, legal analyst and former Baltimore prosecutor.

Time to Begin the Process to Pull the Plug on Trump

Wednesday, May 17th, 2017
Donald Trump, Public Domain

Donald Trump, Public Domain

 

 

The latest news surrounding Donald Trump has some persons calling for impeachment, removal or resignation of Trump as president.  In a memo made by then FBI Director James Comey, Trump allegedly asked Comey if he would end the investigation of former National Security Advisor Michael Flynn. It was allegedly made the day after Flynn resigned. Comey declined.  The issue is whether this request, if proven to be true, should be considered obstruction of justice and if so, what remedies exist.

 

Obstruction of justice is a federal statute that makes it unlawful to corruptly obstruct, influence or impede an official proceeding.  There are several key elements to proving the crime.  First, there must be an intent on the part of the person to specifically obstruct, influence or impede. The party must be aware that an investigation or proceeding exists. And the action must be one that attempts to obstruct, influence or impede.  In looking at the totality of the circumstances surrounding what is being alleged by former FBI Director James Comey, it appears that all criteria have been met.

 

The memo of Comey does not stand alone in a vacuum. Putting together the pieces of the puzzle is an easy one. First, there was a dinner meeting at the White House where Comey asserts that Trump allegedly asked him to pledge his loyalty to the President. According to Comey, he declined to pledge his allegiance to Trump.  Now there’s the Comey memo asserting that Trump asked Comey to drop the investigation against Michael Flynn.  Comey continued with the investigation. And of course, Comey was fired by Trump.  If a sitting president, having the power to end one’s career or position makes the request that Trump allegedly made, it would indicate that all criteria of the federal obstruction of justice statute have been met.  But that doesn’t end the matter.

 

Donald Trump is the sitting president of the U.S. with certain protections against criminal prosecution.  The Supreme Court has not ruled whether a sitting president can be charged with a federal crime in lieu of impeachment.  If any other politician had done the alleged actions, he or she would likely be facing a criminal indictment by a Grand Jury shortly.  But the President of the United States’ removal is based on impeachment or use of the 25th amendment under the Constitution.

 

Impeachment proceedings, as were done in the case of former President Bill Clinton, must be started with a majority of the House and then a full trial in the Senate with 2/3 members of the Senate in support.  With the GOP controlled House and Senate, impeachment is an option but a political one. And unfortunately, it’s still too soon to know if enough Republican law makers will pull the plug on their President. My mother used to have a saying that if you make your bed hard, you must lay in it. And Republicans may still prefer to lay in their bed with Trump, instead of formal impeachment charges.

 

The other method to oust a sitting president is found in Section 4 of the 25th amendment of the U. S. Constitution which states that a president may be removed if he or she is found unable to serve or to discharge one’s duties.  This option has never been used and likely won’t be used in Trump’s case—under our present circumstances. And it requires a 2/3 majority in the House and Senate to permanently remove a president.

 

We have likely only hit the tip of the iceberg here. And that’s where an independent commission or special prosecutor is needed.  At this point with Trump potentially asking officials to end investigations, we need a special prosecutor who can dig deep without fear of reprisal, recusal or removal.

 

And speaking of removal, the last method might be the president’s resignation. That would require many Republican leaders to convince Trump that he can’t continue to serve. Whichever method is considered, it won’t be an easy or quick fix.  Speaker Paul Ryan states he still has “confidence” in Trump, despite the newest allegations.  I suspect some Republicans are likely going through the five stages of grieving which are denial, anger, depression, bargaining and acceptance.

 

One thing is for sure. More Republicans will be getting out of bed with Trump and saying enough is enough.

Debbie Hines appears on WUSA 9 with Bruce Johnson on May 17, 2017 to discuss Trump, Comey and special prosecutor:

http://www.wusa9.com/opinion/editorials/off-script/-offscripton9-can-trump-be-impeached-over-comey-memo-/440628580 

Washington, DC based Debbie Hines is a trial lawyer, legal analyst and former Baltimore prosecutor.

What the New DOJ Drug Policy Means for Everyone

Monday, May 15th, 2017

Jeff Sessions -Photo/Alex Brandon

Jeff Sessions -Photo/Alex Brandon

Attorney General Jeff Sessions announced that he has rescinded the prior Department of Justice policies of Attorney General Eric Holder on sentencing and charging in drug cases. Under Attorney Generals Eric Holder and Loretta Lynch, both reversed prior drug policies which saw many minorities and others going to prison for decades for low level, non-violent drug involvement due to mandatory minimum sentences. Under Attorney General Holder, the Department of Justice concentrated more efforts and resources on drug defendants who were violent and/or had substantial involvement with drug trafficking. Sessions, known as the law and order Attorney General, has saw fit to turn back the progress seen in the Eric Holder era.

Sessions announced last week that he intends for all U. S. attorneys to charge the most serious crimes and seek the highest penalties for all drug defendants in federal courts. Mandatory minimums and lengthy sentences began in the 1980’s to combat the crack cocaine epidemic. After 30 years since the original law and order mandatory minimums of the Regan era sought to increase drug sentences, there is still an epidemic of drugs—known currently as the opioid epidemic. In the prior mandatory minimum era, there were persons with very low drug involvement who spent decades in jail for having very small amounts of drugs in their possession and with no prior criminal convictions, due to mandatory maximum minimums.

Sessions declared the need for a change in policy due to an increase in crime; in fact, crime has been decreasing and is at its lowest in many years. And while many national prosecutors praise Sessions and the new policy, others who seek criminal justice reform abhor the new policy, as it will simply fill up jails. And maybe that’s exactly what Sessions wants to do. Private prisons are a high priority for those who earn big bucks for building and maintaining private prisons.

What is needed today to curtail drug use and abuse is the same thing that was needed during the 1980’s. Drug treatment and prevention is a key to decreasing the drug problem in the U.S. Opponents to the increased drug sentences and in favor of overall criminal justice reform include progressives and conservatives alike. The Charles Koch Institute found that the majority of Trump voters even contend that criminal justice reform is important with its findings:

“A poll last month by the conservative Charles Koch Institute found that 81 percent of Trump voters think criminal justice reform is “very important,” and 63 percent said judges should have the freedom to assign forms of punishments other than prison, which is the opposite of what mandatory-minimum sentences require.”

It will be interesting to note if the new policy will target mainly minorities, as in the past or include individuals across the country involved in the “new” opioid drug epidemic. There is a provision in the new drug policy that will allow for prosecutors to use their judgment. As a former prosecutor, I know that discretion is rarely allowed when a policy calls for the highest sentences and charges.

I suspect that as in the past, the majority of those getting arrested, charged and sent to prison will be people of color. Studies have found that minorities and whites use drugs at or about the same rate. Yet, prisons overflow with people of color. African Americans are disproportionately targeted and sent to prison for lengthy jail sentences in the mandatory-minimum era. That was one of the underlying reasons why Attorney General Eric Holder sought to change the policies.

The new war on drugs, a la Sessions style, should have everyone concerned. And this time around unlike the 1980’s Regan era, everyone who knows someone with a drug problem should have reason for concern. The new policy will likely affect John and Jamal.

Washington, DC based Debbie Hines is a trial lawyer, legal analyst and former Baltimore prosecutor. She often appears on MSNBC, PBS, CBS News, Al Jazeera and Fox 5 DC.

Comey, Trump and Our Constitutional Crisis

Friday, May 12th, 2017

Comey’s Firing and the Lingering Constitutional Crisis

AmericanflagDonald Trump fired FBI Director James Comey for what might appear to be Comey’s reluctance to end the Trump Russian collusion investigation and/or pledge loyalty to the President. Before being fired, Comey had asked for additional funds to investigate any Russian collusion with the 2016 presidential election. Instead of more funds, he was fired.

The reasons keep changing as to the reasons for the firing. At first, Trump stated he relied on the letters and memorandum of Attorney General Sessions and Deputy Attorney General Nominee Rod Rosenstein which discussed Comey’s performance and duties. Attorney General Sessions, as many may recall, stated that he recused himself from the Russian collusion investigation over one month ago, due to his conflict of interest. Yet, he re-entered the investigation to weigh in on Comey’s performance into Russiangate. It’s as if the Trump administration violates its own rules whenever it deems necessary.

Trump later stated he intended to fire Comey all along due to how badly he treated Hillary Clinton. And within days after being sworn into office, Trump now alleges that he met with and dined with James Comey and asked if he was the target of the investigation. Trump insists that Director Comey advised that Trump was not being investigated. As the world turns, the facts change.

The legal issues involved are so immense in this scenario. If Trump intended to politically pressure Comey to end an ongoing investigation of any Russian involvement and/or involvement with the Trump administration, then a charge of obstruction of justice to impede an ongoing investigation might be warranted.

And meanwhile as the Comey firing issue was being discussed and dissected by the media, Trump was meeting with Russian officials at the White House with only Russian photographers present. All U.S. media were excluded by the President. It is as if this President is snubbing all rules of law, protocol, hijacking the U. S. for his own purposes and acting as the chief CEO of the U.S, in the process.

Meanwhile, the investigative process continues into the issue of Russian influence in the 2016 election. Without a FBI director, the investigation will continue despite Trump’s desires to the contrary. However, an independent special prosecutor needs to be appointed to avoid even the appearance of the ongoing impropriety. However, Majority Leader Mitch McConnell rejects the call for a special prosecutor. One must wonder if he has any involvement with Russiangate.

The real issue is whether we as American citizens and our lawmakers will continue to allow Trump to take us down the very dark abyss that he is leading us into. The task is not just for the FBI to investigate but for the many Americans who see democracy slipping from our grips to actively protest, resist, contact law makers and urge action to be taken. There comes a time when going down a slippery slope becomes impossible to climb back up. And we are inching towards the fall into the darkness. Democracy is not slipping away in darkness. It is occurring right before our eyes.

Please watch my discussion on the Bill Press Show on May 11, 2017 for a more detailed analysis at 38:00 min mark:

Washington, DC based Debbie Hines is a trial lawyer, legal analyst and former prosecutor. She often appears on MSNBC, CBS News, PBS, Al Jazeera and Fox 5 DC.