Right to Trial by Judge or Jury … and Marilyn Mosby

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Marilyn Mosby is the Maryland prosecutor who elected to prosecute the six officers involved in a case that resulted in the death of Freddie gray, a suspect who was in their custody at the time of his unfortunate demise. Mosby failed to receive a conviction in either of the first four cases and on Monday, dropped the remaining charges against the rest of the officers awaiting trial.

Mosby, obviously frustrated because the officers chose to have their cases heard by a judge rather than a jury, said she wants to pursue greater prosecutorial power over whether a defendant can choose a bench trial over a jury trial. In short, she wants this particular and extremely important right taken away from all defendants, further stacking the deck against them as they face incarceration and other punishments that include the loss of even more rights.

“I have a number of ideas that I’m not yet going to talk about,” Mosby said. “I have it all written out. I have it all planned.”

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One of the purposes of affording the option of trial type is to allow a defendant to have his/her case heard by a judge rather than a jury whose opinions may be swayed by emotions and public statements made prior to start of the courtroom proceedings. A great example of possible jury tainting is the case in question, the trials of the officers accused of murdering Freddie Gray.

A local jury pool most likely saw and heard Ms. Mosby’s emotionally-charged speech announcing the charges against the officers (depraved heart murder—a deliberate act that is so dangerous that it shows total indifference to someone else’s life, murder, and manslaughter, among others). She concluded her lengthy oration with, “… to the youth of the city. I will seek justice on your behalf. This is a moment. This is your moment. Let’s insure we have peaceful and productive rallies that will develop structural and systemic changes for generations to come. You’re at the forefront of this cause and as young people, our time is now.”

Many have considered Mosby’s dramatic speech as a one offered by an angry political activist rather than that of a unbiased prosecutor.

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Potential jurors likely witnessed her appearances on national TV, in magazines, and on the stage with Prince at a concert that was billed as a Rally4Peace, an event in honor of Freddie Gray, the victim in the case. Not to mention that she’s married to City Councilman Nick Mosby, whose district includes the area where the Gray incident and much of the recent Baltimore rioting took place. She’s also friends with Gray family lawyer Billy Murphy. Murphy helped with Mosby’s campaign fund-raising.

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So yes, the defendants in the case had just cause to fear the jury pool would be stacked against them. Therefore, as is their right, they opted to have their cases heard by a judge, an option Mosby wants to change.

I’ve included the below text, especially for Maryland prosecutor Marilyn Mosby, in the event this page is missing from the law books in her office. Please note the red text below.

Seriously (I suppose Ms. Mosby is at least aware of the law), I highlighted the line in red so to make it stand out to help those who aren’t aware that this indeed is the law. The right to trial by judge, or jury, is not a suggestion or something that can be instantly altered simply because someone doesn’t like it, or because the results produced by it are not favorable to an attorney involved in a court proceeding.

 

RULE 4-246. WAIVER OF JURY TRIAL–CIRCUIT COURT

West’s Annotated Code of Maryland

Maryland Rules

West’s Annotated Code of Maryland

Maryland Rules (Refs & Annos)

Title 4. Criminal Causes

Chapter 200. Pretrial Procedures (Refs & Annos)
MD Rules, Rule 4-246
RULE 4-246. WAIVER OF JURY TRIAL–CIRCUIT COURT

(a) Generally. In the circuit court, a defendant having a right to trial by jury shall be tried by a jury unless the right is waived pursuant to section (b) of this Rule. The State does not have the right to elect a trial by jury.

(b) Procedure for Acceptance of Waiver. A defendant may waive the right to a trial by jury at any time before the commencement of trial. The court may not accept the waiver until, after an examination of the defendant on the record in open court conducted by the court, the State’s Attorney, the attorney for the defendant, or any combination thereof, the court determines and announces on the record that the waiver is made knowingly and voluntarily.
Committee note: Although the law does not require the court to use a specific form of inquiry in determining whether a defendant’s waiver of a jury trial is knowing and voluntary, the record must demonstrate an intentional relinquishment of a known right. What questions must be asked will depend upon the facts and circumstances of the particular case.
In determining whether a waiver is knowing, the court should seek to ensure that the defendant understands that: (1) the defendant has the right to a trial by jury; (2) unless the defendant waives a trial by jury, the case will be tried by a jury; (3) a jury consists of 12 individuals who reside in the county where the court is sitting, selected at random from a list that includes registered voters, licensed drivers, and holders of identification cards issued by the Motor Vehicle Administration, seated as jurors at the conclusion of a selection process in which the defendant, the defendant’s attorney, and the State participate; (4) all 12 jurors must agree on whether the defendant is guilty or not guilty and may only convict upon proof beyond a reasonable doubt; (5) if the jury is unable to reach a unanimous decision, a mistrial will be declared and the State will then have the option of retrying the defendant; and (6) if the defendant waives a jury trial, the court will not permit the defendant to change the election unless the court finds good cause to permit the change.
In determining whether a waiver is voluntary, the court should consider the defendant’s responses to questions such as: (1) Are you making this decision of your own free will? (2) Has anyone offered or promised you anything in exchange for giving up your right to a jury trial? (3) Has anyone threatened or coerced you in any way regarding your decision? and (4) Are you presently under the influence of any medications, drugs, or alcohol?
Cross reference: See Kang v. State, 393 Md. 97 (2006) and Abeokuto v. State, 391 Md. 289 (2006).
(c) Withdrawal of a Waiver. After accepting a waiver of jury trial, the court may permit the defendant to withdraw the waiver only on motion made before trial and for good cause shown. In determining whether to allow a withdrawal of the waiver, the court may consider the extent, if any, to which trial would be delayed by the withdrawal.
Source: This Rule is derived from former Rule 735.
*As always, please … no arguments about gun control, police-bashing, protestors, political rants and raves, bashing of political candidates, religion, race, and, well, the usual. Oh, and please do save the bad language for other pages. We have kids who visit this page and I’d like to keep the site as kid-friendly as possible. Besides, I’m extremely weary of seeing and hearing the “F” word. But that’s just me. Thanks!
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Our Mad, Mad Country: Hinckley, a Baby Inside a Toaster Oven, and Marilyn Mosby

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John Hinckley, Jr. is getting out. He, as you may recall, is the man who shot President Ronald Reagan, a police officer, a Secret Service agent, and Press Secretary James Brady. Brady later died as a result of the gunshot wound that struck him in the face just above the left eye. It was in 1981 when Hinckley fired the shots, attempting to assassinate President Reagan as a means of impressing actress Jodi Foster. He was found not guilty by reason of insanity.

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A moment after the assassination attempt of President Reagan by John Hinckley, Jr.

Now, U.S. District Judge Paul Friedman feels that Hinckley is well enough to live in the community. Although, had Hinckley been declared sane at the time of the shootings he would most likely have spent the remainder of his life behind bars. But, come August of 2016, Hinkley will be residing with his parents in a gated golf course community in historic Williamsburg, Va., where he says he’d like to fit in and be a good citizen. The man (Hinckley) who once was fixated on the assassination of President Kennedy, fantasized about hijacking an airplane, and stalked President Carter, now enjoys speaking to groups in art galleries and at mental hospitals. He also enjoys playing guitar, painting, and photography. He would like to land a job at Starbucks or Subway.

I wonder what Mr. Brady, had he survived the attack, would have enjoyed had he not been confined to wheelchair by a gunshot wound that left him with slurred speech and partial paralysis and suffering deficits in memory and thinking and the inability to recognize people. I’m sure that the simple act of standing at a counter and placing an order for a sandwich, unassisted, at Subway or any other business would have been high on his “I wish I could” list. Unfortunately, he died because of the actions of a man who speaks to people at art galleries and strums and plucks his six-string while intently watching men and women on the golf course behind his parents’  home.

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James Brady

In fairness to Hinckley, he’s been allowed out for numerous visits with his parents and he’s been driving around and interacting with people in the community for quite some time and all without incident. Of course, he hadn’t attempted to kill a U.S. president until he fired that first round at Reagan. Until that day, he’d been out and about in the community as well. As they say, I’m just saying.

By the way, the Hinckley’s rear deck is just mere feet away from the 13th hole, just in case you decide to play there.

On the opposite end of the spectrum is 40-year-old Melissa Wright of Hillbrook, Alabama. You may recall that Ms. Wright pleaded guilty in 2003 to the attempted murder of her 14-month-old daughter, Ashley Smith. She tried to kill the girl by placing her in a broiler oven. The child has since endured over two dozen operations due to the burns she received.

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Ashley is now 15.

Melissa Wright was recently up for parole. During the hearing Ashley requested that her mother remain in prison. However, her older sister pleaded with the board to release their mother. A prosecutor says he wants Wright to serve every day of her 25 year sentence.

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Ashley Smith at her mother’s parole hearing.

The board denied Wright’s release, for now.

And then there’s the case of the Baltimore Six, the officers on trial for the death of Freddie Gray, a man who died during an incident involving those six officers.

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Today, Baltimore prosecutor Marilyn Mosby dropped all charges against the remaining officers accused of killing Gray. Previous trials each resulted in acquittals with the exception of one that ended in a mistrial. During the trials, Judge Barry G. Williams Jr. made it perfectly clear that he did not believe Mosby’s theory of the case, In addition, Judge Williams found that prosecutors deliberately withheld information that would have been beneficial to the defense.

So, a case that received much national attention, one that prompted protestors to riot and loot and burn parts of the city and presented Mosby with opportunities to appear in national TV sows, magazines, and onstage with Prince, has ended without a single conviction after a judge repeatedly said there simply was no evidence of criminal wrongdoing.

This, after Mosby’s news conference announcing that she planned to bring charges against the Baltimore officers. She said, “To the people of Baltimore and the demonstrators across America. I heard your call for “no justice, no peace…To the youth of this city, I will seek justice on your behalf. This is a moment, this is your moment…You’re at the forefront of this cause. And as young people, our time is now.”

After the prosecutor’s fiery press conference and subsequent to when areas of Baltimore were set ablaze and destroyed, Judge Williams issued a gag order preventing all parties from the prosecution and defense from publicly discussing the case. Today, the order was lifted and a still-defiant Mosby once again turned to the media to share her feelings about police when she blamed them, a lack of communal oversight of police, and entire the justice system (the same justice system that’s for everyone, not just her) for her failure to produce guilty verdicts.

Mosby said today, “After much thought and prayer it has become clear to me that without being able to work with an independent investigatory agency from the very start, without having a say in the election of whether our cases proceed in front of a judge or a jury … we can try this case 100 times … and we would still end up with the same results.” 

To respond to Mosey’s comments:

  • She and her team had every opportunity to work with an independent agency of their choosing, but she elected to do conduct her own investigation using her own investigators and the evidence they presented—evidence the judge said did not rise to the level of criminal wrongdoing. Remember, there must be proof of a crime to convict anyone. And it was their own evidence, evidence that favored the officers, that was withheld from the defense.
  • It is the right of ANY and ALL people who’re facing criminal charges as to whether or not they want a bench trial (by a judge) or a trial by jury. This is not something a prosecutor has control over. Not today, not ever before.
  • She’s right, she’d probably not get a conviction in this case in 100 attempts to do so, because the crimes charged were not a reflection of the event. There must be criminal intent.

On the hand, were the officers responsible for the safety of Freddie Gray? Sure they were, but the safety of the officers as well as the safety of everyone at the scene were equally as important. Decisions made that day, during the spur of moment—in mere seconds—are a small example of the decisions that must be made by police officers every single day.

Mosby said she stands by the medical examiner’s report that Gray’s death was a homicide. Well, I can sort of agree with that statement. Remember, homicide and murder are not always the same.

It is Murder that’s the unlawful killing of another person. The judge in this case said there was no evidence of criminal wrongdoing. None.

“I understand that murder is a crime,” you say, but…what’s the difference between murder and homicide? Don’t they share the same meaning? Is there a difference?

Yes, of course there’s a distinction between the two, and the things that set them apart are extremely important.

Again, murder is the unlawful killing of a person, especially with malice aforethought.

The definition of homicide, however, encompasses ALL killings of human beings by other humans. And certain homicides are absolutely legal.

Anyway, back to the Baltimore Six. I’m all for justice. Had this been a case involving criminal intent, where the officers did something to intentionally injure or kill Mr. Gray, well, they should’ve been found guilty and sent to prison. And I’m a firm believer that when people break the law, including police officers, they should be charged.

However, that was simply not the case this time.

By the way, Prosecutor Marilyn Mosby now faces disbarment charges as well as civil lawsuits from the majority of officers she charged in this case.

*As always, please … no arguments about gun control, police-bashing, protestors, political rants and raves, bashing of political candidates, religion, race, and, well, the usual. Oh, and please do save the bad language for other pages. We have kids who visit this page and I’d like to keep the site as kid-friendly as possible. Besides, I’m extremely weary of seeing and hearing the “F” word. But that’s just me. Thanks!

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Violence in America: Up, Down, or Part of a Manhole Cover?

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Violent crime is down. Events of the past couple of years have had no effect on crime rates. The so-called Ferguson Effect does not exist. The numbers are fabricated by the police and “the right.” Stop and frisks are offensive. “The violence rate today is far lower than it was when Ronald Reagan was president and lower than when I took office,” said President Obama during a press conference in the White House East Room.

Those, the above, are all sentiments I picked up on various media sources. Are the statements correct? Is the U.S. truly experiencing wonderful and extremely welcome downturn of violent crime?

Well, not so much according to a midyear violent crime survey released Monday by the Major Cities Chiefs Association. The MCCA is comprised of 68 of the largest law enforcement departments in the U.S.

Here’s what the study showed.

  • 307 more homicides so far in 2016 (data collected from 51 of the largest U.S. law enforcement agencies).
  • 1,000 more robberies.
  • 2,000 more aggravated assaults.
  • 600 more non-fatal shootings.
  • Chicago has seen a 48% increase in homicides over the same time last year.
  • Los Angeles County Sheriff’s Office reports 110 homicides so far this year, as opposed to 85 in 2015.
  • San Jose, California’s murder rate has doubled in the past twelve months. When we lived there, San Jose was listed and advertised as the safest city in America. Apparently, this is no longer the case.
  • In the first three months of 2016, the country saw a 9% increase in homicides.
  • TIME reported – Chicago experienced one of the biggest homicide increases of any city … cities with significant increases included Dallas (45 homicides in 2016 compared with 26), Jacksonville, Fla., (30 in 2016, 18 in 2015), Las Vegas (40 and 22), the city of Los Angeles (73 and 55), Memphis (48 and 31), Nashville (20 and 13), and San Antonio (34 and 23).

In addition, 32 police officers have been shot and killed so far this year, an 88% increase over the same period last year. Keep in mind, this figure does not include the number who were shot but survived. Nor does it include the number of officers who were physically assaulted. According to data collected by the FBI, 49,851 officers were assaulted in 2013. That total is surely much higher in 2016, and the total only reflects the assaults reported. Many are not.

Interestingly, New York reported 68 homicides, a figure that’s slightly down from 85 the year before.

I wonder how low the murder and assault rate would be if guns were out of the hands of criminals? I know for a fact that in the areas where I used to work gun violence went WAY down in the areas where we engaged the criminal element head on. We did so by getting out of our cars and talking to everyone, including gang members, drug dealers, etc., and we regularly conducted stop-and-frisks of suspicious people (Not just any random person walking down the street minding their own business. That’s not how Stop-and-Frisk” works). The tactic caused the bad guys to not carry guns out of fear we’d conduct a quick pat-down and arrest them for weapons and/or probation violations.

I know I felt safer knowing that we’d removed many of the illegal guns from the streets. And it was sort of a joy seeing those sawed-off shotguns, Saturday night specials, guns with serial numbers removed, and other illegal weapons being destroyed. We either had them crushed or melted in a coal-fired furnace that was capable of reaching temperatures of around 2,700 degrees (I think that’s the temperature of the furnaces. My memory of the process is not all that great. I do recall that the melting came quickly and that some of those firearms are now probably part of a manhole cover or other such item. Who knows, some may now be part of the steel bars in a jail or prison. Ironic, huh?).

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Is there any place that’s safe from violent crime? Last year, a woman parked her car at a local mall in my city, and as she walked toward the stores a man approached from behind and used a baseball bat to hit her on the head. It was an extremely violent act. Then the attacker took her purse and fled the scene. The victim–a beloved nurse, mother, and wife—died. A few days earlier, a similar thing happened in the parking lot of a local bank. The attacker in that case used a hammer to hit his victim, another woman. Fortunately she survived the physical attack. Mentally, I’m not so sure.

What about the Ferguson Effect, the idea that police are less proactive in their methods of policing, such as the stop and frisks and even getting out of their cars to talk to people of the streets at all hours of the night? They don’t due to fear of backlash and/or attacks against them by the crowds of people who flock to every scene in order to surround the officers, chant, shout, throw things at the officers, attempt to physically free the people who’re under arrest, and shove cameras in the faces of cops who’re trying to do their jobs.

Well, it depends upon who you talk to as to whether or the FE is real or not. The White House says it is not. That it’s irresponsible and counterproductive for anyone, including FBI Director Jim Comey, to say different. However, the numbers tell a different story. According to a study published this year in the Journal of Criminal Justice, homicides in the 12 months after the Michael Brown shooting (in Ferguson, Missouri) rose significantly in cities with already high rates of violence.

Baltimore by crime analyst Jeff Asher conducted a study of gun violence which showed that when Baltimore police officers stopped making drug arrests last year after the rioting that followed the death of Freddie Gray, shootings in the city ballooned. In Chicago, where pedestrian stops have fallen nearly 90 percent, homicides are up significantly compared with the same period last year.

Point to note: Asher’s study concluded that homicides in Chicago are up 60% in May of 2016 over the same time last year. CNN reports the number as 48%, as per the MCAA study. Either way, the increased numbers of homicide throughout the country are troubling to say the least.

So … what are your thoughts? Do you feel safe these days? Have you found yourself worrying about violence just a bit more than you used to? Does travel to certain cities or areas of your own hometown cause you to feel anxious. Do you avoid traveling to some places in the U.S., or even areas in your town?

*As always, please … no arguments about gun control, police-bashing, protestors, political rants and raves, bashing of political candidates, religion, race, and, well, the usual. Oh, and please do save the bad language for other pages. We have kids who visit this page and I’d like to keep the site as kid-friendly as possible. Besides, I’m extremely weary of seeing and hearing the “F” word. But that’s just me. Thanks!

*Sources – FBI, CNN, US Legal, baltimorecounty.gov, Major Cities Chiefs Association Report, and me.

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Twisting Your Twisted Tales: Twins Have Identical DNA, Except When They Don’t …

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We all know how valuable DNA testing is in the worlds of paternity testing and crime-solving. In fact, DNA testing is so accurate that we’re able to determine, with just a mere microscopic fleck of doubt, the identity of a long-lost father, or mother, a name associated with remains found in areas of disaster, and we’re able to learn the names of perpetrators of crimes of various types. All from a tiny speck of blood, tissue, other body fluids, etc.

Remember, every cell in the human body has DNA except red blood cells. Therefore, almost anything a suspect handled could contain DNA. This is why crime-scene investigators locate and collect items they think a suspect may have touched—cigarette butts, bloody clothing, weapons, paper, drinking glass, etc. The evidence is then turned over for testing to a forensic lab and its scientists.

The first step in the testing process is to extract DNA from the evidence sample. To do so, the scientist adds chemicals to the sample, a process that ruptures cells. When the cells open up DNA is released and is ready for examination.

The rest of the process is pretty straightforward and not all that complicated. DNA is loaded into a genetic analyzer that produces a readout that’s specific to the individual who left the evidence (skin, blood, tissue, semen, saliva, etc.).

This is all well and good EXCEPT when twins are involved, because twins have identical DNA. And, when two people have the same DNA and one of them commits a murder, well, without other evidence to validate the charges it’s difficult to prove which twin was at the scene and which was not. A near perfect crime?

Well, scientists at University of Huddersfield, located in Huddersfield, West Yorkshire, England, have devised a means distinguishing slight differences—mutations—between the DNA of identical twins.

DNA methylation, simply put, is the molecular mechanism that switches various genes on and off. Therefore, when one twin is, for example, a lifeguard who spends much of daily life in the sun but her identical twin does not, the difference in lifestyles will cause changes in the methylation status of the DNA. These changes in the DNA methylation status of the sun-loving sibling are the subtle changes that sets the twins apart. The same is true when one twin is a smoker and the other lives a tobacco-free life, and so on.

The technique used—high resolution melt curve analysis—subjects the DNA samples/evidence to increasingly high temperatures until the hydrogen bonds break. This breaking point is known as the “melting temperature.”

Again, to simplify, the difference between the melting temperatures establishes the difference between two identical twins. So, the post-methylated-tested DNA can indeed point investigators to the guilty twin.

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So there you have it, writers, a new twist for your twisted tales.

 

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