Shadow Vigilantes

by Paul H. Robinson

  The plea agreement includes many provisions, including the following: “Should it be determined by the United States Attorney's Office that Mr. Packwood has willfully given materially incomplete or false testimony he shall be subject to prosecution for any appropriate federal criminal violation, including but not limited to perjury, and false statements.”6 After Packwood begins serving his six-year sentence, evidence surfaces that he did indeed take part in the murder of Desbiens's girlfriend. He is put on trial for the killing, but the court concludes that the perjury (saying he had nothing to do with the murder) was not a substantial enough breach to remove his immunity. Despite the overwhelming evidence of Packwood's participation in the killing and his clear attempts to deceive the United States Attorney's Office, the court holds Packwood immune from prosecution for the murder.

  Giving the Defendant the Benefit of His Deception in Entering a Guilty Plea

  In 2004 Stacy Hunt concocts a plan to import cocaine that he is having shipped to the airport in Anchorage, Alaska.7 Unfortunately for Hunt, police become aware of this scheme, obtain a warrant to search the package when it arrives at the airport, allow the package to be delivered as planned, and arrest Hunt as he is driving away after picking up the package. After he is indicted for cocaine distribution, he flees the state. He is arrested three years later in California and sent back to Alaska to face the federal drug charges.

  Hunt, who has faced many criminal drug charges in the past, acts as his own counsel. In a plea deal, Hunt confesses to possessing a controlled substance with the intent to distribute. During the negotiations, he uses words like “substance” and “illegal drug” and never the word “cocaine.”8 As a result of his guilty plea and his prior criminal history, the judge sentences him to fifteen years in prison. Hunt appeals, claiming that he never actually pleaded guilty to possessing cocaine. The appellate court buys Hunt's argument. Because he never used the word “cocaine,” the court concludes that he can only be held liable for the minor offense of distributing a controlled substance, for which the maximum sentence is a year in prison.9

  Homicide Reversal because of a Verdict Sheet Format Reviewed by the Defense Counsel

  In 1991, Jeffrey Damiano, Eric Birdsall, and Jaime Rullan blast Pink Floyd songs in their car as they spend the evening bar hopping in New Paltz, New York.10 They drive to Ohioville Bridge, which runs above the New York State Thruway, and turn off their headlights. From the height of the bridge they begin dropping stones onto cars. Damiano heaves up the largest boulder he can find, a fifty-two-pound piece of granite. At that moment, Karen Zentner is driving under the bridge, Damiano heaves the huge boulder over the edge, and the men watch as it crashes through Zentner's windshield. The force of the impact cracks her ribs and splits open her heart.

  Zentner is left dead. Two years later, Rullan pleads guilty to criminal facilitation and agrees to testify against the other two men. The jury finds Damiano guilty of second-degree murder and two counts of reckless endangerment (for dropping rocks on other drivers earlier in the evening).

  Damiano appeals his conviction. On the verdict sheet given to the jury, the alternative legal name of the offense was included in parentheses after the official statutory name of the offense. For example, next to “murder in the second degree” on the verdict sheet is the parenthetical phrase “depraved mind murder”; next to “manslaughter in the second degree” there appears “reckless endangerment” in parentheses. The trial judge had shown the verdict sheet to both parties, and neither had objected to it. The appellate court concludes that the parenthetical language might have confused the jury. The court does not dispute that Damiano murdered the young woman and put other lives in grave danger but nonetheless sets aside Damiano's conviction.

  Excluding Black Jurors and then Complaining of an Improper Jury

  Arthur Huey and a partner sell marijuana in Louisiana, and the law catches up with them.11 During the jury-screening phase prior to trial, Huey's counsel asks to exclude six prospective jurors from the pool because they are African American or Hispanic and Huey fears these jurors may be prejudiced against him when they hear the racial slurs he uses on some tape-recorded phone calls that will be used as evidence. When the prospective jurors in question are asked about the issue, all respond that they will not be influenced by the racial epithets. Therefore, they are not excluded from the pool of prospective jurors. When the jurors are actually selected, Huey and his counsel use their juror challenges to remove five of the jurors they had sought to exclude.

  At the conclusion of the trial, Huey and his partner are found guilty on all counts. Huey appeals, claiming that the jury selection process was improper because African American jurors were excluded because of their race. The United States Court of Appeals for the Fifth Circuit overturns all convictions against the defendants.

  Thirteen-Year-Old Daughter with Muscular Dystrophy Was Not “Physically Helpless” because She Tried to Push Away Her Rapist Father

  Jane Doe, a thirteen-year-old who is wheelchair-bound, is at home alone with her father, Curtis Davis, when he sexually assaults her.12 Davis takes his daughter into the bedroom, picks her up from her wheelchair, and places her on the bed. She resists, strikes her father, and screams for help. Davis sexually assaults her multiple times. Doe reports the incident to the police, and Davis is arrested and charged with the rape of a person who is “physically helpless.”13 At trial, the jury finds Davis guilty. Davis appeals his conviction, claiming that he was accused under the wrong law, since his victim is not “physically helpless.”14 While Doe, a thirteen-year-old girl with muscular dystrophy, may be “physically helpless” in one sense, she is not in the narrow sense that the court gives the statutory language. Davis's conviction is overturned.

  SUPPRESSING RELIABLE EVIDENCE

  Rape and Robbery Confessions Suppressed after Miranda Warning because Defendants Have Been Appointed Counsel for a Previous Offense

  In 1987, four men—Raphael James, Mark Denny, Eddie Viera, and Mark Smith—burst through the front door of a Brooklyn Burger King with guns drawn. They demand that the two employees empty the register and hand over the money.15 After pocketing the cash, the four men force the employees to disrobe at gunpoint. The four men take turns sodomizing the female employee and then force other sexual tortures on the employees. Once the robbers leave, the two employees frantically call the police. Raphael James is arrested for the Burger King rape and robbery. James responds by saying he wants to talk and blurts out, “I did the robbery but I didn't do no rape.”16 A few hours later, Denny is also arrested. When he arrives at the station, Denny, like James, makes a statement and says, “I didn't do that one [rape]—I heard Mark Smith raped her.”17

  Before their joint trial, James and Denny ask for a hearing to suppress the incriminating statements they made when they were arrested. The court agrees that because James and Denny were under investigation for a previous robbery and had hired attorneys to represent them in that case, they should not have been allowed to say anything without their counsel present. Moreover, while the defendants’ statements may have been spontaneous—neither defendant had been questioned by police—the court concludes that the statements were not “spontaneous enough” and must be suppressed.

  Murder Confession Suppressed because Multiple Miranda Warnings Were Not Enough

  In the early hours of a February morning in 1971, Julius Wideman brutally beats and then shoots to death James Allen on a Philadelphia street.18 As he flees the scene, Wideman dumps his gun into a sewer gutter and returns to his home and wife. The police go to Wideman's home, and, accompanied by his wife, he is brought into the station. When Wideman admits that he owns the car seen by witnesses, he is given his Miranda warnings. When detectives question him again, they give Wideman additional Miranda warnings. While at the station he takes a nap. Although Wideman has denied his guilt throughout the morning hours, after resting, talking to his wife, and being administered a polygraph, he finally admits that he did beat, shoot,
and kill James Allen. The officer gives Wideman Miranda warnings yet again and takes a formal written statement of what had happened earlier that day.

  Based on the statement, the police find the gun in the sewer a few blocks away from where he shot Allen. The officers continue to Wideman's house and find Allen's blood on Wideman's car. The evidence of Wideman's guilt is overwhelming, and the jury convicts him of second-degree murder. On appeal, however, Wideman claims that his confession should be suppressed because while he had been advised of his Miranda rights several times, he claims that those warnings were too far removed from the time when he actually confessed. Further, all the evidence found as a result of his confession, such as the gun and the blood-spattered car, should also be suppressed because the police would not have found that evidence but for his confession. The court grants his claim.

  Spontaneous Incriminating Statements Suppressed When Made to Officers Serving a Court Order to Appear in a Lineup

  On June 21, 1975, twenty-year-old Diane Snell meets and chats with Harry Skinner, age forty-five, at a local bar in Amherst, New York.19 Hours later, after they leave the bar together, Skinner makes sexual advances toward Snell, who refuses each time. The rejections send Skinner into a rage. He savagely beats Snell to death and dumps her body in a nearby ditch.

  Police talk to Skinner several times, so Skinner hires a lawyer. The lawyer calls the police department to tell the authorities that he now represents Skinner. A court order is issued for Skinner to appear in a lineup, and his attorney consents to his appearance. Skinner becomes distressed about appearing in a lineup. The officers try to calm him by explaining that he can contact his attorney. Seeing that Skinner remains anxious, an officer tells him he can get the whole story off his chest once and for all. Skinner agrees to talk to the detectives. They give him his Miranda warnings again, after which Skinner begins describing incriminating details of the murder. Skinner says he wants to make a formal statement. But he then changes his mind and refuses to give the statement because he wants to talk to his attorney first. The officers do not pursue the matter further, and Skinner leaves the station. Eventually the police get enough evidence to move forward to trial. At trial, a jury finds him guilty of first-degree manslaughter, and the judge sentences him to twenty-five years in prison.

  On appeal, there is no question about his guilt, but he seeks to suppress the incriminating statements that he made when the police had come to serve him with the lineup order. He argues that, even though he was not in custody and had not yet been arrested, and even though he had been given his Miranda warnings and had chosen to make statements anyway, those statements should be suppressed because his lawyer was not present. The court grants his claim.20 Because he cannot be effectively prosecuted without his incriminating statements, Skinner walks.

  Incriminating Statements Tape-Recorded by Coconspirator Are Suppressed because Counsel Is Not Present

  In 1980 Perley Moulton Jr. and Gary Colson are stealing vehicles and stripping them for parts.21 The police receive a tip that the crimes are being committed at a particular auto shop. A police officer goes to the garage and asks the owner if he can search the service bays and is told no, so he leaves. Moulton and Colson then take the stripped frame of their latest theft to nearby woods and light it on fire. They walk back to the auto shop leaving a trail in the snow. After discovering the fire, the police follow the trail back to the shop. The police get a warrant and then seize the stolen property. Moulton and Colson are arrested and indicted on four counts of theft. Both plead not guilty and are released on bail pending trial. While out on bail, Colson receives anonymous threatening phone calls. On November 4, 1982, he calls the police to report the calls and to inform them that he wants to discuss his case. The police tell him to talk to his lawyer before he calls again.

  On November 6, Moulton and Colson meet at a restaurant in Belfast, Maine, to discuss their plans for the trial. Moulton suggests that they murder the state's primary witness. They discuss various ways to kill him. Three days later, Colson and his lawyer meet at the police station. During this meeting, Colson confesses to the thefts and describes the conversation in which Moulton suggests killing the witness. Colson is granted immunity from any additional charges beyond the ones for which he has already been indicted in exchange for testifying against Moulton. Colson allows the police to record his phone calls. Recordings are made of Moulton discussing his plans to murder the witness and about his past thefts with Colson. Moulton is convicted of burglary and theft of the Ford pickup truck, the dump truck, and the auto parts. On appeal, Moulton claims that his recorded statements to Colson should have been suppressed because his counsel was not present during his discussions with Colson. The appellate courts grant his claim.22 Moulton walks free.23

  Drug Producer's Incriminating Statements during Takedown Suppressed because Officers Hadn't Given Miranda Warnings Quickly Enough during the Action

  In 1991 the Kansas Bureau of Investigation obtains information that a metal building on a rural area is being used for the large-scale production and distribution of drugs.24 The bureau obtains a warrant to search the property and to seize any drug-related material or firearms. The warrant team uses two helicopters and about twenty officers during their raid. Upon entering the building, officers discover numerous marijuana plants, drug paraphernalia, and firearms. Two officers assigned to the perimeter notice a car entering the dirt road leading toward the property. The car turns toward the building, but as soon as the driver notices the police, he throws the car into reverse and tries to flee. The two perimeter officers draw their weapons and force Vincent Perdue, the owner of the facility, and his fiancée to exit the car.

  An officer asks Perdue what he is doing on the property, and Perdue responds that “he is there to check on his stuff.”25 When the officer asks, “What stuff?” Perdue answers, “The marijuana that I know that you guys have found in the shed.”26 Perdue then tells the officers that the marijuana belongs to him and his fiancée. The officers then read Perdue his Miranda rights and place him under arrest.

  Prosecutors charge Perdue with possession of marijuana with the intent to distribute and the use of a firearm in relation to drug trafficking. After hearing Perdue's statements during his arrest, the jury finds Perdue guilty of both counts. On appeal, Perdue claims that he should have been given his Miranda rights before he made his incriminating statements. The court agrees with him and holds those statements inadmissible.27 The conviction is reversed.

  Murder Weapon Suppressed because Cops Should Not Have Made an Arrest with Guns Drawn

  In New York City in 1990 an outbreak of robberies of cabs has resulted in the death of several drivers.28 City cab drivers agree with the NYPD to submit to routine periodic stops, especially if officers note suspicious behavior. As police watch, an erratically driven cab with three male passengers leaves the Major Deegan Highway at Fordham Road. Two officers on patrol notice the behavior and follow the cab for several blocks. When it pulls to the side of the road, the officers pull up a short distance behind the cab. Gregory Hampton steps out of the cab carrying a “thin, white plastic bag that appeared to be ‘weighted’ down by a heavy object.”29 Upon seeing this bag, the officers exit their squad car and approach him with their guns drawn. They order him to stop, and Hampton complies. Once the officers are close enough, they see the outline of an Uzi machine gun in the bag. They order Hampton to carefully place the bag on the ground. Hampton drops the bag to the ground, where it rips open. The machine gun is now in plain view. The other men in the cab flee.

  Hampton is arrested and searched. The search produces narcotics, two more guns, jewelry, and nearly five thousand dollars in cash. Police also find insurance and vehicle registration cards that link Hampton to a young woman. Hampton claims the woman is his girlfriend, but a brief investigation reveals that she is a murder victim. Hampton is taken in for questioning. He waives his Miranda rights and ultimately admits to murdering the woman during a robbery and also another w
oman during a different robbery. Officers use two lineups to connect him to both homicides. The state charges Hampton with two counts of murder, in addition to machine-gun and drug possession charges.

  He is convicted, and the defense appeals. The court concludes that the officers should not have drawn their weapons when they did because by doing so they were essentially forcibly detaining the defendant without reasonable cause. The appellate court reverses the conviction and suppresses the weapons and other evidence collected after the arrest. Hampton's robbery and murder of the two women go unpunished.

  Four-Million-Dollar Drug Deal in Public Place Suppressed because the Court Concludes That Police Did Not Have “Reasonable Suspicion” to Investigate

  At 5:00 a.m., Carol Bayless drives slowly down 176th Street in a New York City neighborhood notorious for its drug activity.30 When the car stops, four men appear and they walk to her car. Bayless unlocks the trunk, and the men place two large black duffle bags inside. A pair of police officers watch the suspicious activity unfold. When Bayless's car begins to move away, the officers pull up directly behind to follow her. Seeing this, the four men on the street run off. The officers call in, requesting a license plate check, but before this comes back they see that Bayless is approaching a highway on-ramp, so they turn on their sirens and pull her over. The officers pop open the trunk, discover the thirty-four kilograms of cocaine and two kilos of heroin, with a value of nearly four million dollars, and promptly arrest her. The state charges Bayless with conspiracy and possession of cocaine and heroin with intent to distribute. Bayless files a motion to suppress the evidence taken from the car.31 The judge reasons that even though Bayless engaged in suspicious activity in an area known for its drug dealing, the officers had no reason to pull her over and conduct a search. Bayless is never tried.