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Old 04-05-2014, 10:24   #1
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Criminalizing Virginia Police

A defense attorney, I represented a town cop who shot a woman in the line of duty. His biggest problem was that she was a middle aged white woman who had no weapon other than the car she'd tried to kill him with. As she was fleeing, he put a couple of rounds of .40 S&W through the back of her skull and her spine, because she was accellerating on the wrong side of the residential street with a sunscreen covering her windshield, about two blocks from the business center of town at about 10 a.m. on a weekday. She came to a stop when she hit a telephone pole.

My client was charged with first degree murder among other things, and convicted by a jury of involuntary manslaughter, voluntary manslaughter, and shooting into an occupied vehicle. The kicker is that in Virginia, there is (or was) a common law presumption that a police officer, in uniform, within his territorial jurisdiction, and displaying his badge of authority represents the sovereign power of the state, and is therefore entitled to a presumption that he is acting lawfully. All of the charges on which my client was convicted were crimes of which one element is that his act was "unlawful". However, there was never any evidence put on by the prosecution that what my client did was "unlawful", and I was prevented by the judge from offering jury instructions on that point. There was never any option of "not guilty" presented to the jury, they only had the choice between "malicious" and "unlawful".

Thus, in Virginia, it would appear that there is no longer a presumption of lawfulness. So when a cop approaches a vehicle along side the road at night with his hand on his gun, he is guilty of the crime of brandishing a firearm. And when he makes a DUI arrest, that's battery and abduction. So anytime a cop falls out of favor with the local prosecutor, he can have an indictment read against him and put on trial for having done his job. There are civil implications, too, because a lot of civil suits rest on allegedly criminal conduct. When the presumption of lawfulness, which rests on the concept of sovereign immunity, is abolished, the cop has no defense to such charges.

What the heck is going on here?
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Old 04-05-2014, 12:10   #2
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You're referring to qualified immunity.

Sounds like you're appealing.
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Old 04-05-2014, 12:31   #3
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I don't know the case, I am NOT a cop hater, but the way you describe it......

This doesn't sound like a good shoot.

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middle aged white woman who had no weapon other than the car she'd tried to kill him with. As she was fleeing, he put a couple of rounds of .40 S&W through the back of her skull and her spine, because she was accellerating on the wrong side of the residential street with a sunscreen covering her windshield,
Sun screen on windshield so she can not see where she is going. Almost runs over person. Person shoots into the back of the car killing the driver.

If this is what was presented in court no wonder you lost.

If this is a good shoot there has to be a better way of presenting the facts. The way it reads to me, the person shot in anger of almost being run over.
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Old 04-05-2014, 13:39   #4
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I remember that case and if memory serves me she was sitting in a church parking lot. I never knew about the sun screen but the case seemed strange from the beginning. What was the woman doing in the church parking lot?

Was she meeting with a lover? Did the officer's dept ever try and find out what she was doing there and aren't they still trying to help? Or did they just throw him under the bus?

He was lucky it was a white women because if it had been a minority in some urban areas he would have been toast for first degree murder. But that case was in a quiet town in Central Va from my memory.

I think that if this is the case I remember there was a witness that saw it in a different manner than the officer and if you are appealing I would try and find another witness and find out what was actually going on. Some of us actually believed the leo may have been having an affair with the married woman. Cops are just men and women doing a job and they have the same needs and desires as everyone else. Good luck if you are appealing.
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Old 04-05-2014, 13:48   #5
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Culpeper Cop Who Shot and Killed Patricia Cook Sentenced to Three Years in Prison

Ex-Culpeper Police Officer Sentenced to 36 Months in Fatal Shooting

Possible Juror Misconduct in Former Culpeper Police Officer Murder Trial

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Special Grand Jury Sought in Culpeper Fatal Police-Involved Shooting
Quote:
State police said an unidentified Culpeper officer shot Patricia A. Cook on Feb. 9 after she drove off with his arm trapped in her vehicle's window and refused his orders to stop. The 54-year-old Culpeper woman died at the scene.

The shooting occurred after the officer responded to a report of a suspicious woman in a vehicle in a church parking lot.

At least one witness has said the officer's arm was never caught in the window, News4's Julie Carey reported.
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Ex-Police Officer Testifies Shooting Victim Was Public Threat
Quote:
Harmon-Wright said he asked Cook for her license. He told the court she pulled it out of her purse but kept it close to her chest, refusing to hand it over. He tried to grab it and claims that's when Cook rolled up her window, trapping his arm. Harmon-Wright said Cook then started driving.

"I was trying to pull the door open," Harmon-Wright testified. "I said, ‘(Expletive) stop what you're doing.’

"I could feel pressure,” he continued. “It was still trying to close on my arm."

Harmon-Wright said he managed to slide out most of his arm, but his fingers were still stuck. That's when he said he put his gun up against the window and fired twice, falling free from the shattered window. But he said Cook's Jeep continued moving out of the parking lot and onto East Street.

"I thought she was trying to sideswipe me," Harmon-Wright told the court. "She knew I was there and continued to drive."

Harmon-Wright claimed he fired several more rounds to "stop the threat to the public." He testified he saw a pedestrian out of his peripheral vision and that's why he felt the need to stop Cook's Jeep. "If I allowed her to continue down the road, she would possibly strike somebody," Harmon-Wright said.
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Old 04-05-2014, 14:05   #6
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That is the case Russ. I wonder if they ever checked on who made the call to the police. It always seemed so bizarre to me.
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Old 04-05-2014, 14:17   #7
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We don't have to worry about any of that here in Texas, and it is sad to hear that is going on anywhere here in the US. Our lefties beget more and more lefties so it is only going to get worse. Really sad to hear.
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Old 04-05-2014, 14:29   #8
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Originally Posted by RussP View Post
Quote, didn't quote right
Thank you, This is a totally different story that the op presented.

With exception of, "Harmon-Wright claimed he fired several more rounds to "stop the threat to the public."", this seems fairly cut and dry. I can see where there might be a question about the shots fired after the officer was not in danger. But over all this sounds much better.

"A clerk found two dictionaries and a thesaurus in the deliberation room, prompting the defense to file a motion for a mistrial, " Now we can't have people clarifying words in a trial.
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Old 04-05-2014, 14:42   #9
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I think the cop needs to appeal and get a different judge, who will let the jury hear about how cops are presumed to be acting lawfully, and the charges require him to be acting unlawfully, when he was never proven to have been acting unlawfully.
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Old 04-05-2014, 15:43   #10
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Article posted by Russ:
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Harmon-Wright said he asked Cook for her license. He told the court she pulled it out of her purse but kept it close to her chest, refusing to hand it over. He tried to grab it and claims that's when Cook rolled up her window, trapping his arm. Harmon-Wright said Cook then started driving.

"I was trying to pull the door open," Harmon-Wright testified. "I said, ‘(Expletive) stop what you're doing.’

"I could feel pressure,” he continued. “It was still trying to close on my arm."

Harmon-Wright said he managed to slide out most of his arm, but his fingers were still stuck. That's when he said he put his gun up against the window and fired twice, falling free from the shattered window. But he said Cook's Jeep continued moving out of the parking lot and onto East Street.

"I thought she was trying to sideswipe me," Harmon-Wright told the court. "She knew I was there and continued to drive."

Harmon-Wright claimed he fired several more rounds to "stop the threat to the public." He testified he saw a pedestrian out of his peripheral vision and that's why he felt the need to stop Cook's Jeep. "If I allowed her to continue down the road, she would possibly strike somebody," Harmon-Wright said.
The above in bold is what got him convicted.
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Old 04-05-2014, 15:56   #11
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As she was fleeing, he put a couple of rounds of .40 S&W through the back of her skull and her spine, ....
I'm thinking that's going to be more the root of the problem. I recall the Supreme Court mentioning this to the Memphis PD, back in the 80's. If that is your description of the facts and, I assume, not slanted against your client, I can't imagine how you ever expected to win. Even if the state said he could do that, he'd have probably ended up in a federal prison.

Quote:
My client was charged with first degree murder among other things, and convicted by a jury of involuntary manslaughter, voluntary manslaughter, and shooting into an occupied vehicle.
Defending police use of force (and teaching police the related law) is kind of one of my specialties (civil, rather than criminal) and I'm not at all surprised.

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The kicker is that in Virginia, there is (or was) a common law presumption that a police officer, in uniform, within his territorial jurisdiction, and displaying his badge of authority represents the sovereign power of the state, and is therefore entitled to a presumption that he is acting lawfully. All of the charges on which my client was convicted were crimes of which one element is that his act was "unlawful". However, there was never any evidence put on by the prosecution that what my client did was "unlawful", and I was prevented by the judge from offering jury instructions on that point. There was never any option of "not guilty" presented to the jury, they only had the choice between "malicious" and "unlawful".

Thus, in Virginia, it would appear that there is no longer a presumption of lawfulness. So when a cop approaches a vehicle along side the road at night with his hand on his gun, he is guilty of the crime of brandishing a firearm. And when he makes a DUI arrest, that's battery and abduction. So anytime a cop falls out of favor with the local prosecutor, he can have an indictment read against him and put on trial for having done his job. There are civil implications, too, because a lot of civil suits rest on allegedly criminal conduct. When the presumption of lawfulness, which rests on the concept of sovereign immunity, is abolished, the cop has no defense to such charges.

What the heck is going on here?
Like I tell them in academy classes - a whole lot of things the police do in their normal job, would be crimes without a legal justification. In Kentucky, we have a statutes that say you are justified if you did those things in the execution of a public duty or under other justifications for arrests and use of force. None of our statutes would have been likely to help your client, as you describe the facts.

There is always a "not guilty" choice - sometimes it just isn't a not guilty by justification. Did you put on evidence to establish a justification? If your client didn't testify, that is usually the root of the case law saying "tough, you didn't get the instruction because you didn't testify, and your reasons for doing X are the basis for the justification."
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Old 04-05-2014, 16:06   #12
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"A clerk found two dictionaries and a thesaurus in the deliberation room, prompting the defense to file a motion for a mistrial, " Now we can't have people clarifying words in a trial.
Unfortunately, words used in law may have their common definition, or they may have a completely different definition, created by statute or case law. I illustrate this in academy classes with a slide full of pictures of hogs, horses, sheep, donkeys, etc., all of which are "cattle" by the legal definition used in Kentucky statutes.

If the legal issue was cattle theft or "taking up cattle" or the governor's power to authorize rewards for cattle thieves, and the jury used a dictionary to get their own definition, rather than getting it from the judge, they would use the wrong definition, get the wrong result, and do it in a way that deprived the defendant of the ability to appeal it. That is a very serious problem, that goes way beyond what laymen think is "common sense."

Just a simple way of illustrating the point.
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Old 04-05-2014, 16:37   #13
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Article posted by Russ:


The above in bold is what got him convicted.
I think the first bold section, describing him shooting her as she was accelerating with his fingers stuck in the window, is legit.

Shooting after he was clear of the car, not so much.

Those are two separate events with a "fresh" look at deadly force implications in each one. The first event had his life in imminent danger; the second didn't.
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Old 04-05-2014, 17:10   #14
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I think the first bold section, describing him shooting her as she was accelerating with his fingers stuck in the window, is legit.

Shooting after he was clear of the car, not so much.

Those are two separate events with a "fresh" look at deadly force implications in each one. The first event had his life in imminent danger; the second didn't.
Yeah....I might be able to give him the first one as well, depending on the circumstances. The entire story taken as whole....I could see how he was convicted.
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Old 04-05-2014, 19:12   #15
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Unfortunately, words used in law may have their common definition, or they may have a completely different definition, created by statute or case law. I illustrate this in academy classes with a slide full of pictures of hogs, horses, sheep, donkeys, etc., all of which are "cattle" by the legal definition used in Kentucky statutes.

If the legal issue was cattle theft or "taking up cattle" or the governor's power to authorize rewards for cattle thieves, and the jury used a dictionary to get their own definition, rather than getting it from the judge, they would use the wrong definition, get the wrong result, and do it in a way that deprived the defendant of the ability to appeal it. That is a very serious problem, that goes way beyond what laymen think is "common sense."

Just a simple way of illustrating the point.
This is just one reason why I think our legal system is totally screwed up.
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Old 04-05-2014, 20:53   #16
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And the questions begs to be asked -"Where does the judge get his definition of words?" What is to say he doesn't portrait the correct definition to the jury or taint it for his own political purposes? Question what would be the lawyer speak definition for "Shall not be Infringed" Cause we normal everyday folks know what those four words mean.

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Agreed 100 %! The definition be it for laws and juries should be the COMMON DEFINTION of a word nothing else!
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Old 04-05-2014, 21:05   #17
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This is just one reason why I think our legal system is totally screwed up.
Well, we don't want the impact of a law to change every time a dictionary is updated. Or a verdict to hinge on whether a juror looks at a Websters, Hought-Mifflin, or Funk and Wagnals with differing definitions.
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Old 04-05-2014, 21:21   #18
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Maybe I'm missing something, but how does Garner not apply here?

If she drove away with his arm in the window, that's felony assault.

After the officer escaped the car, she was a fleeing felon.

Garner states: The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against, as in this case, an apparently unarmed, nondangerous fleeing suspect; such force may not be used unless necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.

Was she unarmed? Nope. A car is a pretty dangerous weapon.

Was she nondangerous? Nope. Her assault on the officer pretty much proves that one.

Was she escaping? Yep. Driving away counts.

The big question is did the officer have probable cause to believe that the suspect posed a significant threat of death or serious physical injury to the officer or others?

She's not a threat to the officer as she's driving away.

Is she a threat to others?

Based on the article, I would say no.

Based on the OP, and assuming he's presenting the facts accurately, I would say yes.

If she was accelerating down the wrong side of a residential street with a sunscreen covering her windshield, about two blocks from the business center of town at about 10 a.m. on a weekday, I'd say she was a threat to others.

This is a hard call that I would HATE to make, but it satisfies the requirements set by Garner on the use of deadly force.

Again, my analysis is based on the assumption that the facts presented are accurate, but if they are, it's a good shoot IMO.
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Old 04-05-2014, 21:22   #19
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Well, we don't want the impact of a law to change every time a dictionary is updated. Or a verdict to hinge on whether a juror looks at a Websters, Hought-Mifflin, or Funk and Wagnals with differing definitions.
So a cow is a dog, horse, bird, plane....and if people don't understand the laws, they have no way of obeying them.

I could make this a political thread, but I will not go down that path.
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Old 04-05-2014, 21:27   #20
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I think the cop needs to appeal and get a different judge, who will let the jury hear about how cops are presumed to be acting lawfully, and the charges require him to be acting unlawfully, when he was never proven to have been acting unlawfully.
He could end up worse off. He lost the first appeal in Dec 13. Listen to the news people and the witness. It did not sound good but if he could find a witness that actually saw the fingers in the window it may help but the way it stood in evidence he was guilty. His career is over and three years is no picnic but it could have been much worse. Shooting into her with all those extra rounds almost kicked it up if they did not look up actual malice but if they saw a legal dictionary they may have gone to a higher offense.
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Old 04-05-2014, 21:30   #21
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Bren
And the questions begs to be asked -"Where does the judge get his definition of words?" What is to say he doesn't portrait the correct definition to the jury or taint it for his own political purposes? Question what would be the lawyer speak definition for "Shall not be Infringed" Cause we normal everyday folks know what those four words mean.

RWBlue
Agreed 100 %! The definition be it for laws and juries should be the COMMON DEFINTION of a word nothing else!
Most judges use standard jury instructions for certain cases. That case inflamed the media. She was a pretty White woman killed for no reason by a burly cop and that is basically how it seemed to be presented.
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Old 04-05-2014, 21:34   #22
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She was a pretty White woman killed for no reason by a burly cop and that is basically how it seemed to be presented.
This was the problem more than the facts of the case.
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Old 04-05-2014, 21:45   #23
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This was the problem more than the facts of the case.
That combined with the witness saying the arm was never in the window shafted the leo but I would still like to know what she was doing there and any connection between her and the officer and where he was parked in relation to her Jeep. But if it had been a man with a gun in the car I think he would have gotten off even if his actions were questionable.
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Old 04-05-2014, 22:02   #24
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I remember that Culpeper shooting.

An innocent, unarmed woman who was minding her own business was attacked by the "embodiment of the sovereign power of the state" for no good reason, and when she tried to merely flee from the deadly threat, she was shot in the back.
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Old 04-05-2014, 22:09   #25
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That combined with the witness saying the arm was never in the window shafted the leo but I would still like to know what she was doing there....
We could have asked her, but she got killed.

So, just guessing, perhaps she was safely texting on her cellphone, away from traffic.

Perhaps the sunshade was up because it was too sunny, and she wanted to actually see her screen.

Maybe she was reading the Bible and praying in the church parking lot, or maybe she was viewing some porn, or posting on GlockTalk.

Whatever she was doing, she was minding her own business and not hurting anyone.
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