Showing posts with label Richard J. Chrystie. Show all posts
Showing posts with label Richard J. Chrystie. Show all posts

Thursday, October 23, 2014

GUEST COLUMNIST: What To Fear From ‘Homegrown Terrorists’ By Richard J. Chrystie

October 23, 2014 Domestic Terrorism , Guest Column 0 Comments

By Richard J. Chrystie, retired Los Angeles County deputy district attorney, Oct. 23, 2014

It doesn’t take much imagination to come up with six simple things terrorists can do that can kill many people and badly damage our economy:

1. Simply drive down a crowded sidewalk or through an occupied crosswalk or any other place where many people are congregated -- and then drive on. Do this repeatedly. One terrorist can do this alone -- or several can conduct simultaneous attacks in many cities. Many people will be killed, and people will be afraid to be on the streets. Commerce will stop. If the terrorist is fast and lucky, he can drive away, ditch the car and not be caught. Then he can do it again and again.

2. Simply shoot people at random and in many different locations. Recall that John Allen Muhammad and Lee Boyd Malvo paralyzed the Washington, D.C., area a few years ago using an old Chevy and a single rifle. Trained snipers could pick off drivers on freeways or other roadways. Terrorists with concealed handguns could shoot people at random inside lobbies of buildings, inside elevators, and wherever people normally go. Then everyone would be afraid to even leave their homes.

3. Set up a concealed shooting position near an airport and shoot at airplanes as they take off and/or land. The engines are big targets and it would only take one or two hits to disable them so the plane would crash. A crash in a populated area would result in many casualties on the ground along with the crew and passengers on the plane.

4. Plant IEDs alongside the freeway and other roadways -- and in other places where people congregate. A couple of IEDs blowing up on a high-traffic highway will terrorize people sufficiently so that motorists will be afraid to drive on them.

5. Hijack a gasoline tanker truck. Attach an incendiary bomb to the tank. Crash it into the lobby of a hotel or office building and then detonate the bomb. Gas flowing from the ruptured tank will ignite and a huge inferno will ensue. The entire building will be engulfed in flame and everyone inside will be incinerated. This is a horrible scenario, but it would not be hard to pull off. The terrorists might not even have to hijack a gasoline tanker. They might simply get a job as the driver of one.

6. Shoot up power transmission facilities. There is one near my home. It is unguarded. From a few hundred yards away, a sniper with a rifle could easily shoot and put out of service those big transformers and other large pieces of equipment that are right out in the open. Do this at several facilities simultaneously and wide swaths of major metropolitan areas would be without electrical power for weeks or months while new equipment is manufactured and installed. Our civilization runs on electricity. Without it, we will be paralyzed. No lights, no refrigeration, no manufacturing, no radio or TV, etc.

Any and all of these six scenarios can be carried out in both big cities and in small towns so that none of us will feel safe anywhere.

Hopefully, people in the government are already thinking about this and are preparing ways to prevent these attacks -- rather than waiting for something to happen and then reacting, as with 9/11. Ultimately, we may have to become much more like Israel with public buildings and public areas hardened against attacks and many citizens armed to stop random terrorist shooters before they can kill too many victims.

Of course I hope none of these scenarios come to pass here. But the first two have already taken place in Canada. I see nothing to prevent similar attacks from happening here.

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Tuesday, October 14, 2014

GUEST LEGAL OPINION: Can Actor Stephen Collins Be Prosecuted For Child Molestation?

October 14, 2014 California Criminal Law , Child Molestation 0 Comments

By Richard J. Chrystie, retired Los Angeles County deputy district attorney, Oct. 14, 2014

Regarding the Stephen Collins alleged molestation tape, I am not an expert in this particular area of the law, so it is possible an experienced child molestation prosecutor knows something I don’t know. While I cannot comment on the laws of New York -- where the NYPD has been investigating Collins for “inappropriate sexual contact with minors” since 2012 -- here are some legal points based upon California criminal law:

Penal Code section 632, subd.(a), prohibits one party from secretly recording a confidential communication with another party. To do so is a crime, punishable as a misdemeanor with up to one year in county jail and a fine, or punishable as a felony with up to either 16 months, or two years or three years in prison -- plus a fine. Penal Code section 801 places a three-year statute of limitations upon that crime.

Additionally, Penal Code section 632, subd.(d), says that evidence obtained as a result of any such secret recording is not admissible in any judicial, administrative, legislative or other proceeding. So the tape of Stephen Collins allegedly admitting to molesting a child is not admissible in court.

How about the wife testifying that Collins admitted the molestation to her? Would that be possible? The answer is no. Evidence Code section 980 establishes what is known as the confidential marital communication privilege. Stephen Collins can claim the privilege and prevent his wife from testifying in court as to what he said to her.

The same is true as to the therapist who was supposedly present when Collins made his remarks. Evidence Code section 1014 establishes the psychotherapist-patient privilege. Mr. Collins can claim the privilege and prevent the therapist from testifying in court as to what he said during the therapy session.

There are exceptions to the prohibition against secret recordings, and the inadmissibility of confidential marital communications and confidential communications to therapists, but none of those exceptions are applicable here.

The news articles I’ve read about the Stephen Collins matter say that he allegedly admitted placing the hand of a 10-year-old girl on his penis. That is child molestation -- a violation of Penal Code section 288, subd.(a). It is punishable by three, six or eight years in prison. The statute of limitations for that offense is 10 years per Penal Code section 801.1, subd.(b).

But since none of the therapy session evidence is admissible in court, the only way Mr. Collins could be prosecuted, assuming it happened within the past 10 years, is if the victim(s) can be located and will testify as to what happened. If corroborating evidence can be found -- such as a victim reporting the crime to a friend or incriminating notes or letters written to a victim by Collins -- and if a victim is a convincing witness, it is possible the case could be successfully prosecuted.

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Tuesday, September 23, 2014

GUEST LEGAL OPINION: Daniele Watts: Where's The Apology?

September 23, 2014 Actress Danièle Watts , Detainment 1 Comments

By Richard J. Chrystie, retired Los Angeles County deputy district attorney

Now that there is more information about the Daniele Watts situation, I offer some final thoughts based upon what we now know.

The 911 calls reported seeing a woman and a man engaged in sexual intercourse in a car with the door open. This is a violation of Penal Code section 647, subd.(a), engaging in lewd or dissolute conduct in any public place or place exposed to public view. So when the police responded to the 911 call and came upon the described couple in a car at the described location, they were lawfully entitled to detain the couple to investigate the reported crime.

Regarding demanding identification, open acts of sexual intercourse like this would lead to a reasonable belief on the part of officers that the woman was engaging in an act of prostitution. They don’t have probable cause to arrest, but they do have reasonable suspicion to detain. Since prostitutes very often have criminal records and are on probation, it would be reasonable for officers to obtain the identification of the woman to see if she has prostitution priors, if she is on probation for it, and if she has a search and seizure condition.

Thus, in accordance with the language of the Hiibel case (which I discussed in my posting last week), the request for identification was “reasonably related to the reason for the detention.” Therefore, when Miss Watts refused to provide her identification upon demand, she could then be arrested for delaying or obstructing an officer in the lawful performance of his duties in violation of Penal Code section 148, subd.(a)(1). So Miss Watts could have been arrested for refusing to provide her identification.

But there is another basis upon which Miss Watts could have been arrested. During the course of Miss Watts’ detention, she tried to walk away saying officers had no right to hold her. But a person who is lawfully detained cannot simply walk away. Doing so is also a violation of Penal Code section 148, subd.(a)(1). So she could have been arrested for that as well.

As authority for this, please note the following quotation from the case of People v. Lloyd (1989) 216 Cal.App.3d 1425,1429, in which a motorist walked away from an officer attempting to give him a ticket for a traffic violation: With no right to resist this lawful detention, Calvin’s conduct in quickly walking away from the officer rather than complying with the demand for identification provided the officer with probable cause to arrest him (Pen. Code, section 148).

The fact is the LAPD sergeant exercised wise discretion in deciding Miss Watts’s conduct -- although unlawful and contemptuous -- did not merit an actual arrest. The detention in the street and the temporary handcuffing was enough. So he let her go. She was lucky.

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Monday, September 22, 2014

GUEST LEGAL OPINION: Daniele Watts And The Law On Detentions By Richard J. Chrystie

September 22, 2014 Actress Danièle Watts , Detainment 2 Comments

By Richard J. Chrystie, retired Los Angeles County deputy district attorney

There are three levels of police contact with suspects. The first is the “consensual encounter.” Police can simply approach a person and ask to speak to him, ask for ID, ask to search, etc. Usually the police have some reason for doing so, such as a tip, or someone just looks mildly suspicious, but so long as they do not demand that the person stop or cooperate, no reasonable suspicion or probable cause is necessary.

The second contact is the detention. A detention requires a showing of “reasonable suspicion” of criminal conduct, as described in the quotes below. The third level of police contact is the arrest, which requires a showing of probable cause to believe the person committed a crime. Probable cause is more than reasonable suspicion.

As a practical matter, even though officers may believe they have reasonable suspicion justifying a detention, they will first try to get the suspect to stop by way of a consensual encounter. “Excuse me sir, can I talk to you for a minute?’’ as opposed to, “Police officers. Stop.” By doing this, the question of whether officers had a sufficient reasonable suspicion for a detention will not be an issue in court.

DETENTIONS: the landmark case on detentions is the U.S. Supreme Court case of Terry v. Ohio (1968) 392 U.S. 1. In it the Court said that in order to justify the “intrusion” of seizing by “accosting and restraining” an individual on the street, i.e. a detention, the police must meet the following burden:
[T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. 392 U.S. at p. 21.
The Supreme Court explained further that the legality of the seizure would be judged by an “objective standard,” to wit:
[I]t is imperative that those facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or search “warrant a man of reasonable caution in the belief” that the action taken was appropriate? 392 U.S. at pp. 21-22, cites omitted.
The Supreme Court also pointed out that society has a general interest in effective crime prevention and detection and that in recognition of this interest:
[A] police officer may, in appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. 392 U.S. at p. 22,
California Law: since Terry v. Ohio is a statement of the United States Supreme Court on a Constitutional matter, the California Courts are required to follow it.

California Supreme Court cases expressing the same position as Terry v. Ohio on detentions include In re Tony C. (1978) 21 Cal.3d 888; and People v. Souza (1994) 9 Cal.4th 224. Tony C. articulated a two-part test for a detention: “(1) that some activity relating to crime has taken place, is occurring, or is about to occur, and (2) that the person to be detained is involved in that activity.” 21 Cal.3d at p. 893. And People v. Souza expressed the following principle regarding a detention:
A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific and articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity. 9 Cal.4th at p. 231, underline added.
People v. Souza also quoted from the United States Supreme Court case of Alabama v. White (1990) 496 U.S. 325, 330, to the effect that “reasonable suspicion” to justify a detention is much less than probable cause for an arrest, to wit:
“[R]easonable suspicion [is] a standard less demanding than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.” 9 Cal.4th a pp. 230-231.
Both In re Tony C. and People v. Souza also point out that the fact there might be an innocent explanation for what the suspect is doing does not negate otherwise lawful justification for a detention, as follows:
The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of [police] investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal. In re Tony C., 21 Cal.3d at p. 894, and People v. Souza, 9 Cal.4th at p. 233, underline added.
The U.S. Supreme Court also made the following observation regarding the detention of a person who turns out to be innocent in the case of Illinois v. Wardlow (2000) 528 U.S. 119, 126.
Terry [v. Ohio] accepts the risk that officers may stop innocent people. Indeed, the Fourth Amendment accepts that risk in connection with more drastic police action; persons arrested and detained on probable cause to believe they have committed a crime may turn out to be innocent.
So the fact that Daniele Watts might be completely innocent -- as Charles Belk was two weeks ago -- does not mean that the police contact with them was wrong.

911 CALLS: The California Courts have recognized the importance of officers acting on 911 calls, even if anonymous. In the case of People v. Dolly (2007) 40 Cal.4th 458, the California Supreme Court pointed out it is understandable that concerned citizens reporting crimes may wish to remain anonymous. So simply because a caller will not leave a name is not reason enough to discount the accuracy of what he or she says. The court expressed it this way.
Residents of neighborhoods are in the best position to monitor activity on the streets. But residents, also fearful of the consequences, may not always wish to identify themselves and volunteer their names. According no weight as a matter of law to such anonymous tips would only discourage concerned residents from even calling the police, would burden the rights of ordinary citizens to live in their neighborhoods without fear and intimidation, and would render citizens helpless in their efforts to restore safety and sanctity to their homes and communities. 40 Cal.4th at p. 468.
Or putting it another way: “If law enforcement could not rely on information conveyed by anonymous 911 callers, their ability to respond effectively to emergency situations would be significantly curtailed.” 40 Cal.4th at p. 467.

DEMANDING IDENTIFICATION: Regarding officers asking for -- or demanding -- identification from a detained person, the United States Supreme Court addressed this in the case of Hiibel v. Sixth Judicial District of Nevada (2004) 159 L Ed 2d 292. That case approved the arrest of a lawfully detained person for obstructing and delaying a peace officer in the performance of is duties by refusing to produce identification. Here are some relevant quotes from that case.
Our decisions make clear that questions concerning a suspect’s identity are a routine and accepted part of many Terry [v. Ohio] stops. ... If there are articulable facts supporting a reasonable suspicion that a person has committed a criminal offense, that person may be stopped in order to identify him, to question him briefly, or to detain him briefly while attempting to obtain additional information. A brief stop of a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information may be most reasonable in light of the facts known to the officer at the time. 159 L Ed 2d at pp. 302-303, internal cites and quotes omitted.
Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere. 159 L Ed 2d at p. 303.
The principles of Terry permit a State to require a suspect to disclose his name in the course of a Terry stop. . . . The request for identity has an immediate relation to the purpose, rationale, and practical demands of a Terry stop. The threat of criminal sanction helps ensure that the request for identity does not become a legal nullity. 159 L Ed 2d at p. 304, underline added.
But the Court limited the right to arrest a detained person for failure to give his name to just those situations where knowing the person’s name would be relevant to the reason for the detention. In this regard, it said:
[A] Terry stop must be justified at its inception and reasonably related in scope to the circumstances which justified the initial stop. Under these principles, an officer may not arrest a suspect for failure to identify himself if the request for identification is not reasonably related to the circumstances justifying the stop. 159 L Ed 2d at p. 304, underline added.
So an officer can always ask a detained person for his or her identification. But the officer cannot demand identification on threat of arrest unless “the request for identification is reasonably related to the circumstances justifying the stop.” To me, this is a very vague standard, offers very little guidance to the police, and seems to contradict the earlier quotes about the importance of obtaining identification from a detained person. But it is the only standard the U.S. Supreme Court has provided, and there have been no later cases clarifying it.

So how does this all apply to the Daniele Watts situation? The officers were correct to approach Miss Watts and her boyfriend in response to the 911 call by concerned neighbors. They can tell them they got a 911 call and ask what is going on. Beyond that, I don’t know enough of the facts to determine if the demand for identification was justified under the Hiibel case. Small details can make a big difference.

My suspicion is that most officers are unaware of the Hiibel case and routinely ask identification from persons they detain and do so in a manner where the person feels compelled to produce it, i.e., “Let me see your identification.” People invariably comply so the issue of someone being arrested for refusing to produce identification just doesn’t come up. I’ve been watching for such cases ever since Hiibel was decided in 2004 and there have been no subsequent appellate cases on that issue.

In a way, it’s too bad that Miss Watts wasn’t arrested for failure to produce ID because it would have been a good test case, especially since so much of it was on tape. I can just imagine the nine Supreme Court justices listening to the tape. That would have been a good reality check on their otherwise ivory tower approach to police practices issues.

Finally, Miss Watts can be heard on the tape saying she knows her rights and doesn’t have to do what the police say. She is wrong about this. People have no right to resist in the field what they view as unlawful police conduct. They simply have to go along with it and seek their remedies in court at a later time usually by way of a civil suit against the police. The Courts have said that it is not up to citizens in the field to decide if the police are acting correctly or not.


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Wednesday, September 17, 2014

GUEST LEGAL OPINION: The Ray Rice Case By Richard J. Chrystie

September 17, 2014 Assault , Child Abuse 0 Comments

By Richard J. Chrystie, retired Los Angeles County deputy district attorney, Sept. 17, 2014

The only thing unusual about this case is that the battery was caught on videotape.

Seeing a woman hit hard -- particularly hard enough to knock her out -- is shocking. Even TV dramas don’t show women being hit. I have heard that TV scriptwriters are instructed not to put in scenes depicting violence against women. It is too upsetting to viewers. So it is the showing of the videotape where Mr. Rice punched his fiancé in the face that has so shocked the public and made this case so newsworthy.

But as far as the actual violence goes, this is a routine case. The victim was hit once, did not require medical treatment, and doesn’t want her (now) husband prosecuted. This happens all the time. And in Los Angeles, if a case of misdemeanor battery is filed in this sort of situation, it is very commonly held in abeyance -- called “diversion” -- while the defendant attends anger management classes. If he (or, rarely, she) completes the classes and has no further violations, then the charges are dismissed.

So this would not be a case of celebrity justice in Los Angeles. Diversion of such a case out of the criminal justice system while the defendant attends anger management classes is routine.

But if the victim is injured and requires medical treatment or shows extensive bruising, or if the perpetrator has a record of committing domestic violence, then the case will be handled as a straight criminal case. There will be no diversion. But even in this instance, the victim very often refuses to cooperate. This is particularly true if she is still living with the perpetrator/defendant. So unless there is other evidence -- such as photos of the injuries, or witnesses to the battery, or a recorded 911 call reporting the battery in an excited voice, the case might not even be filed.

Regarding Mr. Rice being fired from his football team, I think this is excessive. Ray Rice losing his livelihood for this punishes the victim -- his wife -- as much as it punishes him.

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Thursday, August 21, 2014

GUEST LEGAL OPINION: Ferguson And The Grand Jury

August 21, 2014 Ferguson , Los Angeles County District Attorney 3 Comments
Credit:  Gene Demby / NPR
By Richard J. Chrystie, retired Los Angeles County deputy district attorney, Aug. 21, 2014

 I was the grand jury legal advisor for six months while a deputy district attorney. In California, the subject of a grand jury indictment hearing must be allowed to present exonerating evidence (evidence that might point toward innocence) if he or she wishes to do so, and the prosecutor is required to present exonerating evidence if he or she is aware of it. But it could be different in Missouri. So I will not offer any speculation upon what the Missouri grand jury might do in the Wilson/Brown case.

 But I do want to say this. The new information that has come out about the injuries to officer Darren Wilson -- which include a broken eye socket -- only adds to a reasonable belief on his part that he had to shoot Michael Brown in self-defense. I also heard somewhere that Brown fell only a few feet from Wilson after being shot. This would corroborate Wilson's story that Brown was charging him. I'd like to know exactly how far Brown's body was from Wilson when Brown fell.

Also -- and this is just speculation -- I suspect that Wilson fired very rapidly as Brown was charging him. Six shots (or more -- we don't know yet) as fast as he could pull the trigger. I base this on the fact that all the shots were on the right side of Brown's body and in a rising pattern. This would be consistent with the gun barrel rising slightly on recoil as each shot was fired. This would also indicate that Wilson was firing quickly in self-defense.

 Regarding the likelihood of Wilson being indicted: If he is indicted it will be a triumph of mob rule over the law. Just because a mob sees the case simply as a matter of a white cop shooting an unarmed black youth and ignores the obvious self-defense evidence is no reason for the grand jury to return an indictment. So unless some new evidence comes out to negate self-defense I will be greatly disappointed if the grand jury indicts him. But even if they do I believe a trial jury will acquit Wilson. Multiple investigations and multiple witness statements only make it easier to impeach the witness’s testimony at trial. Further, trial jury instructions state to the jurors that if there are two reasonable interpretations of the evidence -- one indicating guilt and one indicating innocence -- the jury is required to return a not guilty verdict.

But it should not have to come to that. An indictment should not be returned. And if the mob wants to riot, that can be dealt with separately. We cannot allow the ravings of a mob and the threat of mob violence to subvert the rule of law.

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Tuesday, August 19, 2014

LEGAL OPINION: Was The Killing Of Michael Brown An Act Of Self-Defense? By Richard J. Chrystie

August 19, 2014 Darren Wilson , Dr. Michael Baden 0 Comments
Michael Brown, decedent in Ferguson Police shooting
By Richard J. Chrystie, Aug. 19, 2014

I asked my friend, retired Los Angeles County Assistant District Attorney Richard J. Chrystie, to comment on the video with enhanced audio of an apparent eyewitness to the shooting in Ferguson. Here is what Chrystie wrote:

I watched the entire video. I played the most relevant portion three times. It does appear that someone is saying that Mike Brown fought with Officer Wilson in the truck (the police vehicle), ran off a short distance and then doubled back and charged Wilson. Assuming that is true, then Officer Wilson can claim self defense -- that he thought Mike Brown was coming back to attack him again, and get his gun and kill him.

I note that Officer Wilson appears slight in build and that Mike Brown is considerably bigger than Wilson. This would justify a reasonable belief in Wilson's mind that the only way he could protect himself was to shoot Brown. After all, Brown had already attacked him once. Moreover, it appears from news reports that Officer Wilson had been injured in the initial confrontation with Brown. So this would support a belief by Wilson that if Brown got to him again, then he (Wilson) would be overpowered and beaten badly or even killed with his own gun.

So, yes -- Officer Wilson appears to have a good case of self defense -- assuming that Brown attacked him initially, injured him and then doubled back and began charging him.

A few side points. First, in the material I sent you regarding the shooting by the 80-year-old man, all of the case law stating the police were justified in shooting arose in the context of a civil suit against the officers for violating the deceased's civil rights. A civil suit requires only a preponderance of the evidence. But even that was not shown by the plaintiffs in those cases. Whereas an officer charged criminally -- either manslaughter or murder -- must be shown guilty beyond a reasonable doubt. Assuming this newly alleged scenario in the Wilson/Brown shooting is true, Wilson should not be found guilty beyond a reasonable doubt.

Point two: When Brown shoved and menaced the clerk of the store where the cigars were stolen, that converted the shoplifting to a robbery -- taking property by force or fear.

Point three: Police departments in communities with large minority populations are always recruiting and hiring minority officers. The problem they have is that a qualified minority officer is in such demand the qualified minorities get poached by a department offering higher pay. Chances are that the Ferguson PD does not pay as well as St. Louis or other big cities. So even if Ferguson hires minority officers, they may not stay with that department. I don't know that for sure about Ferguson PD, but it is a common problem with other small departments.

Point four: Regarding the autopsy performed by Dr. Michael Baden, the results do not change my analysis of the case. In fact, it strengthens it somewhat. Brown would have been fairly close to Wilson for Brown to get hit six times by a man shooting a pistol in a stress situation. Also the line of the shots along the right side indicate that Brown was moving in a straight line towards the officer when shot. If he had been weaving or turning then it would be unlikely the wounds would all be in the same line. Why so many shots? The police are trained to keep shooting until the threat is over. So long as Brown was still upright, Wilson would have kept shooting. So six shots is not unusual. Moreover, I read that Brown was 6'4" and weighed 300 pounds. So it probably took six shots to drop him. Hits to his arm alone would not have done it.

There are many facts yet to be determined and publicized regarding the Wilson/Brown shooting. I'll be interested in particular in more details on the autopsies of Brown. Also, how many shots were fired and at what range? This can all shed light on the case. Right now, there are still many important facts we don't know.

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