Former police found guilty of murdering teen

In a story of police accountability of murdering a teen, Balch Springs police officer who was fired after killing an unarmed, black teenager has been convicted.

While a tragic story of a death of this sort that is happening way more often than it should be, thanks to the family, community, and local prosecutors who were willing to actually investigate and prosecutor the cop for his actions, justice was served.

Hopefully, actions like this will continued to be given a serious look more than the old "I feared for my life" routine and perpetrators will continue to be held accountable.

On-going Draeger Alcotest 9510 Issues

The Draeger Alcotest 9510 has run into a bit of trouble in Massachusetts. Years worth of Draeger breath test results have been undermined and those people have the ability to essentially re-do their cases with the breath result removed. 

Sean Esworthy's Driving Under the Influence (DUI) association memberships

Sean Esworthy is a member of the following associations that focus on Driving Under the Influence (DUI) defense:



The National College of DUI Defense (https://ncdd.com/member-user-page/sean%40wenatcheelaw.com/)

and

The American Association of Premier DUI Attorneys (http://www.aapda.org/directory/name/sean-esworthy/).

Mr. Esworthy is also a member of the Washington Defenders Association.

Visit the Kottkamp & Yedinak firm website at http://wenatcheelaw.com/.

What is the Reid technique and how does it relate to false confessions?

The Reid technique is an interrogation system that was taught to law enforcement. The technique usually consists of seven parts:

(1) Advising the person that they are a suspect based on an investigation and offer them a chance to explain;

(2) Give the suspect an opportunity to avoid some (or all) of the moral blame for the act by blaming circumstances or other persons;

(3) Re-direct or minimize the suspsect's denials of the allegations;

(4) Have the suspect acknowledge the actions in light of their prior statements and reasoning;

(5) For law enforcement to act supportive, sincere, and receptive;

(6) Offer explanations and alternatives that still generate an admission of the guilty conduct;

(7) Obtain witnesses or other evidence (recordings) or the admission(s) of guilt.

The reason it is important to be aware of the technique is that it can lead to false confessions.

According to the innocence project, 1 in 4 people who were established to be wrongfully convicted made a false confession or incriminating statement. These are just in established cases where convictions are overturned. The actual number of false confessions and statements in criminal cases would likely to impossible to determine, but higher than 1 in 4.

The United States Supreme Court decision of Miranda v. Arizona, 384 W.S. 436 (1966), was decided in response to interrogations that were psychologically manipulative. Footnotes 7 and 8 from the Miranda decision cite the Reid technique and similar techniques from police manuals as part of the basis for the decision.

Of key concern were the that the techniques indicated they should be done in privacy (isolating the suspect), displaying confidence in the suspect's guilt, dismissing the suspect's denials or explanations, engage in dogged persistence, to use "good cop/bad cop", and to use ruses.

Based on these concerns, the Court ruled that the suspect must be advised of, what are commonly known today as, their Miranda rights. These rights include advising the suspect of the right to remain silent and the right to an attorney. These rights are often repeated on television and in other media. But, have they made a difference?

According to this article, roughly 80% of suspects still waive their Miranda rights and talk to the the police. Based on my own observation of having read thousands of police reports, I would guess the number is actually higher (at least in this jurisdiction). Further, many people "confess" prior to being placed into "custodial interrogation" which is usually about the time that the person is formally arrested.

This means that Miranda does not apply if the police are questioning you during a traffic stop or at the door of your house, even though you are not free to leave. Miranda only kicks in when you are handcuffed and in the back of the police car being driven away from wherever you were and to the police station or jail.

Thus, it is important to remember that you always have the right to remain silent. You should exercise this right. Unless you called the police (and even in some cases where you called the police), they are not there to help you, but to investigate potential criminal activity. Sometimes the investigation just comes down to what other people are saying happened and will lead to an arrest, possibly yours. Remember your rights and that any statements that you make, even if you think they are harmless, can be used against you during your prosecution and trial.

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Where is the accountability when police kill people?

Recently prosecutors led a grand jury down the path of yet-again not charging a police officer who killed an innocent person with any sort of charges.

In that particular case, police were trying to serve a warrant and went to the wrong house. While there, they shot the man's dogs. They allege the man then pointed a gun through a crack in the door at them, and they had to shoot him. However, the bullet hole was in the back of the man's head. He was also found in another room near the door, but not by the door. Only one officer shot the police, despite a number of them being there to serve the warrant.

In another case, police killed a kid who was backing his vini-man out of his parents' garage. Video can be viewed here and here.

In another case, police shot the home owners instead of the intruders.

When you look at the numbers, out of 162,000 cases in which grand jury indictments were sought, only 11 grand juries did not indict. So, roughly 161,989 did result in indictments. However, when the topic becomes indicting police officers, those numbers almost flip. Out of 81 possible police indictments between 2008 and 2012 in Harris County, Texas, there was only one indictment. 

There is a disconnect here and police are getting special treatment. This special treatment is not going to cause any positive change or cause the police to think twice before firing multiple times into a slow moving mini-van. The private law suits for damages against the police forces do nothing to the individual officers, who usually just get paid time-off. When it comes down to it, these law suits are more likely to be ultimately funded by tax-payer dollars.

There needs to be real and lasting consequences when someone is killed or maimed. Otherwise, it will simply continue to happen.

What is Brady and why is it important?

Brady evidence comes from the case of Brady v. Maryland, 373 U.S. 83 (1963), which held that due process requires that material, exculpatory evidence be provided to the defense.

To show materiality, the defense must show that if the evidence had been disclosed, that the result of the proceeding would have been different. This has been stated in another way: whether there is a "reasonable probability" that the defendant received a fair trial without the evidence or the suppression of the evidence undermined confidence in the outcome of the trial.

There is no Brady violation if the defense could have obtained the evidence through reasonable diligence. 

Brady is important because in most, if not all cases, the government does the initial investigation and "controls the crime scene." They get the first crack at the evidence, decide what to collect, what not to collect, who to talk to, what to photograph, what to test, etc. The defense may not get access to these materials for weeks or months. For some of these cases, time may be of the essence as memories fade, evidence degrades, automated surveillance video is recorded over, or any number of things that happen due to the passage of time. 

Brady, when done properly, will prevent the government from hiding evidence. One common form of evidence that is helpful to the defense is called impeachment evidence. That is evidence that shows the witness has been dishonest in the past. Of particular importance in most criminal cases is when a police officer in most has been dishonest.

In a recent LA Times article, the authors depict how one officer's act of dishonesty was kept hidden and how that impacted numerous cases.

Some prosecutors' offices have "Brady lists" which are lists of police with known issues that can be used as impeachment evidence. However, getting accurate Brady lists can be more difficult than one may imagine due to the secrecy around officers' disciplinary records. The police are generally in charge of policing themselves when it comes to allegations of misconduct. The problems with such a system of trusting any organization to police themselves should be understood, but they may be especially problematic if the particular agency has an "us" vs. "them" (them being normal people) attitude or act as a para-militaristic organization as opposed to an agency that is there to protect you (the normal person). 

Also, inherent in the "police yourself" problem is the tit-for-tat, if you scratch my back, I'll scratch yours, which breeds self-dealing and corruption. There is also a fear of retaliation for speaking up.

So, because only certain classes of misconduct will be reported and only if the misconduct is established beyond a certain threshold, will the information qualify to make it onto a Brady list. 

The spirit of Brady is in the right place, but, like many aspects of the justice system, the way it plays out in the real world may not be so righteous.  

Kottkamp & Yedinak's firm website

You can see out firm website here: http://wenatcheelaw.com/

A brief bio for me, Sean Esworthy, can be found here: http://wenatcheelaw.com/our-attorneys.html